1988 PLP 1622 (MLD)

The plaintiff has filed this suit under the Banking Companies (Recovery of Loans) Ordinance, 1979. The plaintiff has paid process fee for issuance of summons to the defendants in terms of Rule 8 but before the summons could be issued the defendants have appeared and Mr. Khalid Ishaq and Mr. Mushtaq Memon have filed power on their behalf on 1‑11‑1987. They have also filed an' application on behalf of the defendants that the summons may not be issued by publication and have waived notice and accepted copy of the plaint. Mr. Mushtaq Memon, Advocate for the defendants has also stated that application under Order, 37 Rule 3, C.P.C. has been filed on behalf of defendants on 10‑11‑1987. He states that the summons shall be deemed to have been served on the defendants on the date when he entered appearance on behalf of defendants i.e.1‑11‑1987. Mr. Syed Iqbal Ahmed, the learned counsel for the plaintiff opposing this application contended that under section 7(2) and Rule 8 of the Banking Companies (Recovery of Loans) Ordinance, 1979 it is mandatory to issue summons in the prescribed manner and form. According to Mr. Iqbal Ahmad, the learned counsel, unless the summons is issued in the prescribed manner the appearance by the defendants will not amount a proper service under law and he apprehends that in future the defendants may challenge the entire proceeding as illegal. The apprehension expressed by the learned counsel for the plaintiff is not well‑founded. The provision of the Ordinance and the Rules framed prescribe a T specific mode of service which, in case the summons is issued, should be followed. The procedure has been provided under law with a view to effect service of summons and bring the claim of the plaintiff within the knowledge of the defendant so that he may be aware of it and take necessary step to defend himself. Therefore, the only object of these provisions is to see that the defendant is properly served and is aware of the proceeding. In the present case the defendant has voluntarily appeared and entered appearance, engaged advocate wand has taken necessary steps to defend himself. In such circumstances it is not necessary to issue summons as required by law. The object of issuing the summons has been achieved by the appearance of the defendants and therefore in such circumstances issuance of summons will be an exercise in futility. In this situation when the defendants have voluntarily appeared waived notice., filed power of their Advocate, have taken steps in the proceeding to defend themselves and have further prayed that the summons may not be issued to them as they have entered appearance, at a future date they cannot be allowed to challenge the proceeding on the ground that the summons was not issued or they were not served in the prescribed manner. In these circumstances the defendants are allowed to take such proceedings as provided under law and the summons as prescribed by the rules shall not be issued to them or published in any newspaper. H.B.T./B‑80/K Order accordingly.