1988 PLP 1068 (CLC)

(3) Civil Miscellaneous Application 1013 of 1987 by defendant No.4. (4) Civil Miscellaneous Application 1015 of 1987 by defendant No. 5. (5) Civil Miscellaneous Application 1017 of 1987 by defendant No.6. (6) Civil Miscellaneous Application 1019 of 1987 by defendant No.

7. These defendants have also filed applications under Order XXXVII, Rule 3, C.P.C. which bear the following numbers:‑ (1) Civil Miscellaneous Application 1010 of 1987 by defendant No. 2. (2) ' Civil Miscellaneous Application 1012 of 1987 by defendant No. 3. (3) Civil Miscellaneous Application 1014 of 1987.by defendant No.4. (4) Civil Misbellaneous Application 1016 of 1987 by defendant No. 5. (5) Civil Miscellaneous Application 1018 of 1987 by defendant'No.6. (6) Civil Miscellaneous Application 1020 of 1987 by defendant No.7.. The grounds and facts stated in the affidavits filed in support of these applications' are common and identical. Therefore, all these applications will be disposed of by this order. First I will take up the applications under section 5 of the Limitation .Act. The only reason for condonation of the delay is that the summons was not duly served and these defendants learnt about the 'suit having been filed on 10‑2‑1987 and filed applications on 19‑2‑1987. Affidavits filed in support of these applications are short which only state that the application has been filed under the defendant's instructions and the same may be treated as part of the affidavit. However, in the affidavits filed in support of applications under Order XXXVII, Rule 3 it has been stated that the summons for the suit was not served on the defendants who learnt about it through other sources on 10‑2‑1987 and accordingly application for leave to appear and defend the suit has been filed. In all the affidavits the same averment has been made in verbatim. The main contention of the learned counsel for the defendants is that the summons was not duly served on the defendants, therefore, the period of limitation is to be computed from the date of knowledge. In this regard the learned counsel has referred to the proceedings before the Court which shows that on 26‑1Q‑1986 the summons issued to the bailiff were returned. The defendant No.l's employee had accepted the summons for the defendant No.l but not for other defendants. A publication of the summons was made on 3‑11‑1986. The summons t the defendants Nos.2 to 7 sent by registered post A,D. were return with the endorsement 'not accepted'. Therefore, to start with all the three modes of service of summons provided by Rule 8 of the Banking Companies (Recovery of Loans) Ordinance, and rules were complied with. Mr. Usmani the learned counsel for the defendants has contended that in fact no attempt was made to serve the defendants and publication was made in an obscure English newspaper of having no circulation, therefore, the object of law was not fulfilled. The summons was published in daily 'Morning News'. It cannot be used that 'Mornin. News' is a newspaper of no repute having no circulation at all. The fact that it is in English language cannot lead to the conclusion that the same could not be admitted in evidence, or that such publication cannot be treated as. a proper service. The documents filed by the defendants bearing their signatures are also in English language and moreover it is not provided by law that the summons should be published in a newspaper a language which is known the defendant, If this would have been the object and intent of law then for those persons who agree illiterate publication can never be treated as a proper service. The object of publication is to‑see that the filing of the suit is pr6perly and duly notified and widely circulated. It is not with the intention that the defendant should per chance or with certainty may read the newspaper, and thus come to know about the suit. When the defendant is not to be found or avoids service of summons publication is made and under fiction of law such service in such circumstances becomes a due service of summons on the defendant. Mr. Usmani has referred to Allied Bank of Pakistan Etd. v. Taha Traders P L D 1986 Kar. 369 where I had observed‑as follows:‑ "In the present case the mode of service of summons as provided by Rule 8 deviates` from the modes provided by C.P.C. Unlike C.P.C. Rule 8 framed under the Ordinance provides that the reader shall on receipt of plaint immediately issue summons to the defendants simultaneously through the‑bailiff of the Court, by the registered post acknowledgment due and by publication. It, therefore; seems that under Rule 8 the Court has to issue summons to the defendant simultaneously in three prescribed modes. In my view these three Modes as required under law should be complied with. However, if there is any laxity and it is established that the summons was duly served on the defendant through bailiff and he appears then‑failure to issue summons by post or through publication will not vitiate the entire proceedings as in such circumstances it will amount to a technical defect. The object of issuing summons by three modes is to ensure due service on the defendant without delay or loss of time. Once summons is served through the bailiff and the defendant appears he cannot complain that he was ' not awart of the proceedings in the suit. However, if the defendant chooses not to appear, then ex parte proceedings can be drawn against him after issuing summons by post and through publication. Mere 'publication of summons without effecting service or attempting to serve through bailiff and by registered post A.D. may not itself be a proper and due service as Rule 8 merely provides modes of issuing summons. The Ordinance and Rules are, silent about the effect of service by publication. It has therefore, to be considred whether mere publication is sufficient to treat it due and proper service: Section 3 of the Ordinance provides that its provisions are in addition to and unless' otherwise expressly provided not 'in derogation of any other .law for the time being in force. It is clear that the Ordinance will override the provisions of C.P.C. if they are in conflict with it or applicability of the provisions of C . P . C .has been expressly excluded. As I do not see any coilflict in Order V, Rule 20, C.P..C. and Rule 8 of the. Ordinance, the equitable principles of C . P . C . should be applied. I n my' view mere publication of summons under Rule 8 will not be a proper see view unless it is established that the defendant is avoiding service of summons issued through the bailiff and registered post or hid whereabouts are not known." I have noted a contrary view expressed in Union Bank of Middle East Ltd. v. Messrs Zubna Ltd. and 3 others P L D 1987 Kar. 206 where holding that the Ordinance is a remedial statute for expeditious disposal of cases and referring 'to section 4 subsection (3) of the Ordinance and Rude 8 it was observed that:‑ "I am, therefore, of the view that the summons and notices shall be issued to the defendants simultaneously through paintiff, by registered post A.D. and by publication. It is the statutory requirement and it must be complied with. Once it is shown that the summons or notices have been issued by the office, the service on the defendant by anyone of the three modes twill be considered as, service on the defendant." This view .was followed by a learned Single Judge in Suit No. 477 of 1985. It was observed that 'the Ordinance is a remedial statute and its purpose is to enable the Banks . to obtain recovery of loans without having recourse to lengthy procedure which .consumes lot of time'. It was further observed that:‑ "If the view is accepted that only that publication can be considered' as good service which is made in, accordance with the provisions of.‑Order V, Rule 20, C.P.C., it would amount to duplication of‑the provision of publication. As provid0d by the Rules the publication has to be made immediately on receipt of the plaint simultaneously with issuance of summons ‑and notice by registered post. But if the service by this publication is not considered sufficient, then another publication would have to be made after observing with the requirements laid down under Order V and Rule 20, C.P.C. This would make the provisions of publication under Rule 8 of the Rules redundant which cannot be the intention of the Rule making authority. Furthermore this duplication would also defeat the purpose of the Ordinance as mentioned above. Besides if the procedure to be followed was intended to be as provided, in Order V , C . P . C . there was no necessity of providing Rue 8 in the Rules." With due respect I express my inability to concur with this view and its reasoning. In fact the principle enunciated in the Allied Bank case has not been correctly, appreciated. It does not anywhere require or even suggest that there should be two publications. There it was observed that the service by publication can not be deemed good service unless it is proved that the defendant is avoiding service or cannot be served in, the ordinary manner and for that purpose reliance was placed on principles' of Order V, Rule

20. Any party who avoids service or is not traceable is served through ‑publication. Under Rule 8 all the three modes of service which are provided b C . P . C . at different stages have to be adopted simultaneously but does not lead to the conclusion that if the publication is made the defendant shall be deemed to have been served. It is possible that the defendant may genuinely be not available, and therefore, he ma not be served' through bailiff or by post. In such circumstances the summons has, simultaneously been published, in my humble view, publication cannot be treated as proper service. In such a situation the Court must ascertain whether the defendant is avoiding service of summons. It is not necessary‑to publish summons twice as observe in the case of United Bank v. A1‑Habib & Co. The summons has t C be issued simultaneously in all the three modes, but if the Court comes to the conclusion that the defendant is avoiding service through bailiff or by post then the publication already made can be treat as proper service. From this point of view I do not find that there is any redundancy or conflict in the provisions of C . P . C . and Rule

8. The view 'expressed in Allied Bank case has been, followed in Habib Bank Ltd. v. Cargo Despatch Co.‑ Ltd. and 4 others 1987 CLC 1002. Coming to the facts of the present case the ‑ summons when issued to the defendants by all the three modes on the proper address. The registered post letters were returned with the endorsement 'refused to accept'. The summons issued through bailiff was not served. In these circumstances it can safely be presumed that the defendant were avoiding service of summons otherwise there was no reason to refute to accept the registered post letters. Therefore, the publication of summons would be a proper service. The defendants in the affidavits and in the applications have made vague and insufficient averments. They have not given the source from where they got the information about the filing of the suit. So far the date of information received by them is concerned there seems to be some confusion because in every application and affidavit first it was typed as '4‑2‑1987' and then it has been changed to 10‑2‑1987. This change is obvious in almost all the applications filed by the defendants. While filing an application under section of the Limitation Act, it is the duty of the party to explain delay o each and every day. Mere statement that a party came to know about the case on a date is not sufficient unless the source from which F this information was received is also disclosed. The defendants have not taken any step in this direction and are content by making vague allegations. The applications under section 5 of the Limitation Act are dismissed. Consequently the applications filed by defendant l to 7 under Order XXXXII, Rule 3, C.P.C. are also dismissed. A . A . / U‑27/ K Application dismissed