1. ' This order shall dispose of C.M.A. 4325 of 2000 under section 12 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 read with sections 12(2) and 151, C.P.C. Filed by defendant No,10 for setting aside the judgment and decree, dated 22-5-1999 passed in the present suit, the permission to file the application under section 10 of the Banking Companies Ordinance, 1997, on the ground that defendant No,10 resides in Bungalow No,E/34, Block-F, North Nazimabad, Karachi, and the plaintiffs have obtained decree by showing her residential address as 9-A/1, Khayaban-e-Shamsher, D.H.A., Karachi. The defendant is 87 years old widow lying paralysed in her bed since last about 2 years with trail health. For the last about six years she is suffering from various ailments such as hypertension, asthma, joint pain and weak eyesight and totally ignorant of English language. Defendant No,10 is neither Director nor guarantor of the facility nor she ever mortgaged the property bearing No, E/34, Block-F, North Nazimabad, Karachi but she admits that the documents were with her son and he obtained her signature without explaining her the contents of the documents. Knowledge of the decree, dated 22-5-1999 has been claimed on the receipt of 0/A's letter, dated 9th June, 2000, addressed to Abdul Latif, one of her sons. Hence the present application.
2. ' The application has been contested through counter-affidavit, wherein the plaintiffs have taken the plea of application being barred by time. They maintained that the defendant No,10 created mortgage for repayment of the facility availed by defendant No,1 by creating equitable mortgage by depositing title deed as well as Registered Power of Attorney in favour of the Bank.
3. ' I have heard the learned counsel for the parties.
4. ' The scope of section 12 is confined to the satisfaction of the Court that the defendant was prevented by sufficient cause from making an application that summon was not duly served provided application is filed within 21 days from the date of the knowledge. So far as the application of provisions of section 12(2), C.P.C. To the Banking cases, there are conflicting views. In Emirates Bank International v. Messrs Usman Brothers (PLD 1998 Karachi 338) Mr. Justice Mushtaq A. Memon (as he then was) after considering the provisions of sections 3, 7, 11 and 12 of the Banking Companies (Recovery of Loans) Ordinance, 1979, concluded that only remedy available to the defendant was to prefer an appeal and challenge the judgment or order passed by Special Court exercising the jurisdiction under Ordinance, 1979, Order in any other mode, including the application under Order 12(2), C.P.C. Is not permissible. In Gold Store International v. Muslim Commercial Bank (2000 MLD 421), as Division Bench of Lahore High Court concluded that subject to the provisions of appeal, judgment and decree attain finality and cannot be questioned. Act XIV of 1997, which is special law, provides the remedy to the party concerned, including right of appeal under section 21 of the Act and application in nature of 12 of the Act, if and when warranted by the circumstances. Since special law takes care of various situations itself application under general law i,e, section 12(2), C.P.C. Would not be competent. To hold otherwise, would amount to circumvent the special law which will erode the very object and purpose of special law.
5. ' Contrary view has been taken by a Division Bench of this Court in H.C.A. No,31 of 1999 consisting Sabihuddin Ahmed and Mushir Alam, JJ. As regards maintainability of the application under section 12(2), C.P.C. In banking cases, the following view was expressed: "7. As regards Mr. Gulzar Ahmed's doubts as to the maintainability of an application under section 12(2), C.P.C. It may be observed that under section 7 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, a Banking Court has all powers vested in a Civil Court under the C.P.C. In exercise of its civil jurisdiction. Section 3 provides that provision of this Act are in addition to and unless expressly provided not in derogation of any other law for the time being in force. The recent trend of judicial precedent indicate that these provisions are not confined to civil suit before Courts of general jurisdiction strictly covered by the C.P.C. But to different proceedings of a civil nature. In the case of Mian Muneer Ahmed v. United Bank Ltd. (PLD 1998 Karachi 278) and Tawakkal Export Corporation and others v. Muslim Commercial Bank and another (1997 CLC 1342) two Division Benches of this Court have held that the provisions of section 12(2), C.P.C. Are applicable to decrees passed under the Banking Companies (Recovery of Loans) Ordinance, 1979 and the Banking Tribunals Ordinance, 1984. No provision of the 1997 Act (which replaces these two statutes) has been pointed out to indicate that the principle laid down in the above cases would not apply to decrees under this Act. We therefore, find Mr. Gulzar Ahmed apprehension to be misconceived."
6. I. As Single Judge, am bound by the view taken by the Division Bench of this Court. In my view, the conclusion of the learned Division Bench is based on good reasoning, I am of the view that the provisions of section 12(2), C.P.C. Can be pressed into service. However, it requires examination whether the grounds are available or not to press such provision. In fact, the grievance of the defendant No,10 is two-fold that the decree has been obtained by showing address of the defendant other than her residential address. Secondly, the defendants have not executed any document viz. Guarantee or memorandum of mortgage, power of attorney etc. Thus, by putting false claim, the plaintiff obtained decree. Mere falsity of claim to the knowledge of person to forward claim cannot be a ground for setting aside the decree on the ground of fraud. Whether claim is false it would be false representation made on Court but this cannot by itself be a ground for setting aside decree because if such ground was accepted, there would be no end to litigation for every decree which does not proceed on some legal ground alone would be liable to be challenged on the ground that a party had deliberately put forward an untrue case. To support such view cases of (1) Lal Din and another v. Muhammad Ibrahim (1993 SCMR 710), (ii) Begum Anwari Khanum v. Messrs Passco n (Pvt.) Ltd. (1993 MLD 1555) can be referred. I am, therefore, of the view that the plea of fraud is not available to the defendant. It may be observed that the provision of section 12(2), C.P.C. Would apply if the fraud or misrepresentation is alleged during the proceeding of the suit in Court and not anything outside the Court. However, the question remains to be addressed whether the decree has been obtained by the plaintiff against defendant No, 10 by showing address other than her residential one. The defendant claims that she is residing in Bungalow No,6/34, Block-F, North Nazimabad, Karachi and to support this plea she has annexed her Identity Card issued in the year 1976 and voters' list of Ward 171/12 (North Nazimabad), where she is a registered voter. The plaintiffs case is that she executed the memorandum of deposit to title deeds wherein she has given her address of Defence Housing Authoirty (K/1) wherein she has disclosed her residential address as A-9, Khayababn-e-Shamsher, D.H.A., Karachi and address has been shown in the title of the plaint as address of defendant No,10. The defendant's address in the Memorandum of deposit of title deed has been shown as Defence Housing Authority, as such it cannot be pleaded that the plaintiff has suppressed her residential address and in order to avoid contest has given a wrong address.
7. ' Mr. Baqar Maqbool, Advocate has referred case of Muzafarul Haq v. Muslim Commercial Bank (PLD 1993 Lah. 706) decided by a Division Bench of Lahore High Court, where the decree was set aside as the plaintiff was asked to supply correct address of the defendant No,6 but failed to comply with the direction or to show to the satisfaction of the Court that he had no other address of the defendant having been in a position to provide another address had not provided and suppressed same intentionally. The ex parte proceedings were held to be nullity in the eyes of law. In these circumstances, I am of the view that the case referred is distinguishable with fact of instant case, as such has no application.
8. ' The last plea taken by the defendant is that she remained incapacitated due to various ailments and did not come across the summon published in newspaper being illiterate lady. Such plea has been taken in para.5 of the application. The plaintiffs have not denied such averments through counter-affidavit. The contents of para.5 of the affidavit in support of the application has not been replied by the plaintiff, as such this fact remains unrebutted.
9. In United Bank v. Mohabali Trading (PLD 1994 Kar. 275) the provision of Rule 8 of Banking Companies (Recovery of Loans) Ordinance, 1980 framed under the provision of Banking Companies (Recovery of Loans) Ordinance, 1979 was examined, which is analogous to the provision of subsection (3) of section 9 of the Act pertaining to the mode of service of summons and notice, it was held that deeming effect of service by publication under Order 5, rule 20, C.P.C.
10. Would be that once a proper publication is made in newspaper, which satisfies requirement of law presumption would arise that deeming service thereby was effected on the defendant. However, for such service to clarify for the necessary presumption the requirement of declaration of publication sufficient to carrying knowledge to the defendant should be met. If not, the presumption may, subject to the fact. In case where presumption of effectiveness of service through publication arises a defendant, upon appearance, may yet show a sufficient cause that the public notice did not come to his notice.
11. ' The defendant has pleaded that she gained knowledge through letter of A/O and pleaded that she being incapacitated and the publication of summon did not come to her knowledge due to her ailment. Thus the defendant No,10 has shown sufficient cause for her non-appearance.
12. Consequently, the judgment and decree are set aside against defendant 10 only, however, subject to security on bank guarantee in the decretal amount within 15 days, failing which 0/A may proceed with the sale of the mortgaged property.