1992 PLP 1039 (MLD)

These are two applications .moved only by Defendant No.3 in the suit. The first application is for grant of leave to defend moved under Order XXXVII, rule 3, C.P.C. while the second application is under section 5 of the Limitation Act for condonation of delay in moving the application under Order XXXVII, rule 3, C.P..C. Both these applications are presented in the Court on 7‑11‑1990. The suit was filed on 12‑8‑1990 and thereafter notice was ordered to be served on Defendants through all the modes of service as provided under amended rule 8 of the Banking Companies (Recovery of Loans) Rules; 1980, which reads as under:‑

8. Mode of service of summons and notices:‑‑ The Reader shall, on receipt of a plaint, order immediate issue of summons and notices to the defendant simultaneously through the Bailiff of the Court, by registered post acknowledgment due and by publication; "and service in any of the aforesaid modes shall be deemed proper and valid service for the purposes of the Ordinance.". . Consequently, the notices were sent for service through Bailiff and registered post A/D and also published in the daily newspaper "Hilal‑e‑Pakistan" of 23‑8‑1990 and the service has been held good. Thereafter the present applications were filed by Defendant No.3 in the suit: His grounds for condonation of delay as contained in the affidavit in support of application under section 5 of the Limitation Act are that he came to know about the present suit on 3‑11‑1990 and thereafter engaged an Advocate, who prepared the necessary affidavit for submitting the same before the Court. The affidavit shows that the same was got prepared on 3‑11‑1990 but was sworn and submitted in Court on 7‑11‑1990. However, no specific facts are mentioned in the affidavit as to how and through what source the defendant No.3 learnt about the institution of present suit on 3‑11‑1990. This application would, therefore, fail on factual aspect. Moreover as provided in rule 8 of the Ordinance as mentioned above, the service through publication is deemed to be proper and valid service for the purposes of this Ordinance and no excuse can' be .allowed to‑ the Defendant specially when there is no specific reason, assigned. As cited above, no specific facts have been given by the defendant No.3 and as such the application moved by the defendant under section 5 of the Limitation Act would fail. Reliance may be placed on the case of Ahmed Autos v. Allied Bank of Pakistan PLD 1990 SC

497. As regards the merits of the application under Order XXXVII, rule 3, C.P.C., the .grounds taken by the plaintiff are that the defendant No.3 was only a sleeping partner. 1n addition to that the learned counsel has argued that the defendant No.3 was not a party to the promissory note, letter of hypothecations and other documents. The learned counsel for the plaintiff has filed the photostat copies of the said documents along with plaint and has also shown the originals and certified copies of the same in the Court today. These documents do bear the signatures of defendant No.3 which are similar to those of his signatures as put on the Vakalatnama and affidavit filed in support of application under section 5 of the Limitation Act. For these reasons even on factual aspect, there is no substance in the present application, which is accordingly dismissed on merits as well as its being barred by limitation as provided under Article 159 of the Limitation Act. Article 159 of the Limitation Act provides a period of 10 days only for moving an application for grant of leave to defend from the date of service whereas, the present application has been moved after a lapse of about 2‑1/2 months from the date of publication. None of the other defendants have moved the application for grant of leave to defend the suit. For the aforesaid reasons it can safely be observed that the plaintiff is entitled to have a decree as prayed for as in the above‑cited case of Ahmed Autos v. Allied Bank of Pakistan, the Hon'ble Supreme Court observed that where the Defendant does not obtain leave to defend the suit, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to the decree. In these circumstances, I would decree the plaintiff's suit as prayed with costs. AA./U-112/K Suit decreed,