2009 PLP 849 (CLD)

HAMID ALI MIRZA, J.

These two civil petitions for leave to appeal are directed against orders dated 22-3-2006 in 1st Appeal No.15 of 2006 and dated 5-4-2006 in 1st Appeal No.46 of 2004 respectively passed by learned Division Bench of the High Court of Sindh, Karachi, whereby both appeals were dismissed, hence these petitions for leave to appeal.

2. Brief facts of the case are that civil petition No.139-K of 2006 has arisen out of order dated 22-3-2006 passed by learned Division Bench of the High Court of Sindh Karachi whereby order dated 25-2-2006 passed by Banking Court No.1 Karachi on an application under section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 filed by the petitioner for getting the ex parte judgment and decree set aside passed by the Banking Court in Suit No.6 of 2004 was dismissed.

3. Civil petition for leave to appeal No.273-K of 2006 has arisen out of order dated 5th April, 2006 of the High Court of Sindh Karachi in appeal No.42 of 2004 whereby the said appeal was dismissed thereby judgment and decree dated 11-5-2000 passed by the Banking Court No.1, Karachi, decreeing Suit No.6 of 2004 of respondent against the petitioner was maintained.

4. Respondent filed Suit No.6 of 2004 against the petitioner for recovery of Rs.1,28,63,803.00 under the Financial Institutions (Recovery of Finances) Ordinance, 2001 hereinafter referred to as the said Ordinance against the petitioner Mubarak Ali in the Banking Court No.1 Karachi praying therein for the decree of the said amount with future profit thereon at the agreed rate from the date of filing of suit till realization of the entire amount and for sale of mortgaged property. The said suit was decreed ex parte against the petitioner vide judgment and decree dated 11-5-2004 by the Banking Court No.1, Karachi. The petitioner preferred appeal No.42 of 2004 before the High Court of Sindh, Karachi which appeal was dismissed as per impugned judgment and decree dated 5-4-2006 by the learned Division Bench of the High Court of Sindh, Karachi, hence this petition No. 139-K of 2006.

5. So far C.P.L.A. No.273-K of 2006, petitioner moved an application under section 12 of the said Ordinance before the Banking Court No.1, Karachi for setting aside ex parte decree which application was dismissed vide order dated 25-2-2006 by the learned Judge Banking Court No.1 Karachi. Appeal No.15 of 2006 was preferred before the High Court of Sindh at Karachi which appeal was dismissed vide impugned judgment dated 22-3-2006, hence C.P.L.A. No.273-K of 2006.

6. We have heard learned counsel for the petitioner and the caveator and perused the record minutely.

7. The only contention of learned counsel for the petitioner is that the petitioner was not duly served with the summons therefore could not enter appearance before the Court, consequently could not obtain leave to defend the suit from the Banking Court which ultimately resulted into decree against him. He further submitted that summons was issued on the address "Ali Apartment, Main Korangi Road, Karachi", whereas he was permanently residing at village Haji Dilbar Khan Mehr, Taluka and District Mirpurkhas and at the said village none of the newspaper of English and Urdu were being delivered when the bailiff in his endorsement dated 18-3-2004 stated that he had gone to the given address of the respondent but no person of the name of respondent was living in the said apartment but one Dr. Ahmad was residing when it was informed by latter's daughter, hence summons could not be said to have been served upon the petitioner.

8. Learned counsel for the caveator in reply submitted that petitioner was duly served as required by subsection (5) of section 9 of the said Ordinance consequently trial Court was justified in proceedings ex parte against the petitioner in absence of the application for leave to defend as required by section 10 of the said Ordinance. He also submitted that the trial Court was justified in dismissing the application under section 12 of the said Ordinance so also learned Division Bench rightly dismissed appeals Nos. 15 of 2006 and 42 of 2004 consequently these petitions are liable to be dismissed.

9. We do find merit in the submissions of the learned counsel for the petitioner while no substance and force in the contentions of the learned counsel of the respondent in the circumstances of the present case.

10. Mere fact that the petitioner had given address of Karachi in the documents submitted to the Bank and (ii) that summons was sent through registered post AD (iii) that publication was made in two newspapers of Urdu and English languages and (iv) change of address was not notified to the respondents would not be sufficient in view of the circumstances of the present case to hold that the petitioner was duly served with the summons of the trial Court. Admittedly the bailiff in the endorsement dated 22-3-2004 has specifically stated that he had gone to the address of Karachi but no person of the name of respondent was residing in the said apartment but one Dr. Ahmed was residing in the said apartment. It may also be observed that neither the Presiding Officer of the Banking Court nor the High Court had cared to go through the endorsement of the bailiff who himself had gone to the place of address of Karachi and had stated on oath about the non-service of summons upon the petitioner. The fact that these newspapers Jang and Dawn are not delivered at the village Haji Dilbar Khan, Taluka and District Mirpurkhas was stated on oath by the petitioner which was not controverted by the respondent so as to say that the petitioner was duly served with the summons. Question in this case would be whether the service on the basis of publication should be held to be satisfactory for the purpose of holding the petitioner to have been duly served. The fact that in case the said newspapers are not delivered or received at the said village, place of residence of the petitioner, it cannot ipse dixit be presumed that the petitioner was duly served with the summons. There is nothing on the record that any acknowledgement due of the registered post was received by the trial Court or that any person on behalf of newspapers was examined to state that the said newspapers do reach or are being delivered at the said village of Haji Dilbar Khan Mehar, Taluka and District Mirpurkhas. It is only when the summons is duly served and service is held to be satisfactory by the Court, further proceedings in the suit could be taken, but in the instant case in our view the service upon the petitioner was not at all duly effected, therefore all the proceedings initiated or taken thereafter cannot have sanction of law hence are liable to be struck down/set aside. We are convinced from the record that the petitioner was not duly served with the summons so as to proceed ex parte against him and pass decree for such a huge amount against him. This be noted that this Court has time and again held that parties should, be given due opportunity to defend the lis and put up their case before the Court and decree be passed on merits. In case the respondent's claim is genuine and is based on valid documents they would be ultimately entitled to decree even if the petitioner is given chance to apply for leave to defend the suit and to take further steps in the light of decision so made by the trial Court for the final disposal of the suit at the level of the trial Court.

11. We find that the impugned judgments and decrees cannot be sustained in law therefore the same are set aside, consequently the petitions are converted into appeal and allowed and the case is remanded to the trial Court for its disposal after affording due opportunity to the parties to proceed with the case and the case be decided afresh in accordance with law. S.A.K./M-16/SC???????????????????????????????????????????????????????????????????????????????? Appeal accepted.