' Claiming default in payment of the due amount of City Visa Card account, respondent-Bank (Citibank N.A.) filed against the appellant suit for recovery of Rs.24,756.29. This suit was decreed through ex parte judgment and decree dated 14-12-2002. Appellant on 6-1-2003 filed an application for recalling the ex parte decree and also an application for seeking condonation of delay under section 5 of the Limitation Act. Through the impugned order dated 27-3-2003, the learned Banking Court-II, Lahore dismissed appellant's applications, hence this appeal.
2. The learned counsel for the appellants stated that the appellant was never served the summons under Order XXXVII, C.P.C. And no copy of the plaint was supplied to the appellant, wherefor, ex parte judgment and decree could not have been passed against the appellant through judgment and decree dated 14-12-2002. And owing to non-service and non-supply of the plaint, his application to recall the ex parte judgment and decree should have been accepted. Reliance in this context was placed by the appellant upon judgment dated 4-6-2003 of the Honourable Supreme Court of Pakistan in Civil Petition No,2207-L of 2002 titled "Ashiq Hussain v. Muhammad Ehsan Farid" and the case of "Abdul Karim v. Nazir Ahmad" PLD 1998 Lahore 163, wherein upon non- supply of copy of the plaint; ex parte decree was set aside.
3. We have considered the submissions of the learned counsel for the appellant. Respondent-Bank filed a suit for recovery of Rs.24,756.29 against the appellant on the allegation of non-payment of outstanding dues in Visa Card Account. The learned Banking Court-H, Lahore thereupon directed issuance of summons in the prescribed form to the appellant through various modes mandated in section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. The said summons were accordingly issued and were also duly published in English Daily "The Dawn" and Urdu Daily "Jurrat". Upon non-appearance of the appellant and upon non-filing of petition for leave to the defend the suit, the appellant was proceeded against ex parte and the suit was decreed through an ex parte judgment and decree dated 14-12-2002. After expiry of 23 days therefrom, the appellant on 6-1-2003 filed an application (Annexure 'B') before the learned Banking Court-II, Lahore for setting aside the judgment and decree dated 14-12-2002. This application was accompanied with an application under section 5 of the Limitation Act for condonation of delay.
4. The ground urged by the appellant in the above applications was that he was unaware of the suit and the consequent ex parte judgment and decree for the reason of non-service through ordinary mode as well as for publication of the summons in an Urdu newspaper Daily "Jurrat", which was not a widely circulated Urdu newspaper. And that as such, he could not file his application for recalling the ex parte decree within 21 days as prescribed in section 12 of the Financial Institutions (Recover) of Finances) Ordinance, 2001.
5. The learned Banking Court-II, Lahore dismissed the above-said applications through the impugned order dated 27-3-2003 on the basis that:-- "According to the report of a summon the sister of defendant was informed about the summon and the service was effected through affixation on 13-11-2002 and through summon published in the newspapers on 8-12-2002 and 11-11-2002. According to acknowledgment chit the summon sent through registered post was received on 1-11-2002. So, no ground is available to the petitioner for condonation of delay accordingly the application for condonation of delay is dismissed.
' Now I take up the application filed under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 for setting aside judgment and decree dated 14-12-2002 which was filed on 6-1-2003. Such application is to be filed within 21 days from the date of the decree. According to the affidavit attached with the application. This application was prepared on 4-1-2003 but was filed on 6-1-2003. It should have been filed on or before 4-1-2003. This shows negligence of the petitioner. This application is duly contested. This application is dismissed being time-barred."
6. The learned counsel's contention that the appellant had not been duly served does not seem to have any merit. As recorded by the learned Banking Court, summons were affixed and were also published in the English Daily "Dawn" and Urdu Daily "Jurrat" respectively dated 8-12-2002 and 11-11- 2002. Summons through registered A.D. Mail were received on 1-11-2002. The appellant in his application under section 12 ibid for recalling the ex parte judgment and decree has not denied publication of the summons in Daily "Dawn" and has not stated that he was unaware of such publication. He has baldly, generally and vaguely alleged that report of the process server was incorrect and he had not been served through registered A.D. Or through courier service and that publication in the Urdu Daily "Jurrat" was defective as the said daily newspaper was not a widely circulated newspaper. The vague allegations otherwise become irrelevant in view of publication of summons in the Daily "Dawn".
7. In our view, the appellant has been duly served in view of the express provisions contained in subsection 5 of section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, that "service duly effected in anyone of the aforesaid modes shall be deemed to be valid service for purposes of this Ordinance".
8. As to the next submission that copy of the plaint was not attached with the summons, the above referred provisions of section 9(5) ibid duly meet such eventuality as well by providing that:- "9(5) "....Service duly effected in anyone of the aforesaid modes shall be deemed to be valid service for purposes of this Ordinance." And "In the case of service of the summons through the bailiff or process-server, a copy of the plaint shall be attached herewith and in all other cases the defendant shall be entitled to obtain a copy of the plaint from the office of the Banking Court without making a written application but against due acknowledgement."
9. In the present case, if the appellant had purportedly not received the summons through ordinary modes, he could have obtained copy of the plaint from the office of the Banking Court upon publication of the summons in the newspaper Daily "Dawn" etc. Furthermore, the above referred provisions promulgated through Special Law i.e. Ordinance of 2001 are a departure from the provisions contained in Order XXXVII of the Civil Procedure Code and as such, the judgments referred to by the learned counsel for the appellant are inapplicable.
10. Even otherwise, as held in the judgment dated 21-11-2001 passed in F.A.O. No,300 of 2001 by a learned Division Bench of this Court, of which one of us was a member (Muhammad Sair Ali, J.), section 5 of the Limitation Act is inapplicable to appeals filed under the Ordinance of 2001.
Wherefor, application for condonation of delay in filing the present appeal against the ex parte judgment and decree dated 14-12-2002 is not maintainable and this appeal thereagainst is barred by time. However, if this appeal is treated as an appeal against order dated 27-3-2003, even then, as held above the appellant was duly served summons issued in the suit wherefor we do not find any infirmity in the impugned order dated 27-3-2003 passed by the learned ,Banking Court-II, Lahore. This appeal is thus dismissed with no order as to costs.