2003 PLP 632 (CLD)

SYED DEEDAR HUSSAIN SHAH, J.

Petitioner seeks leave to appeal against order, dated 8-10-2001, passed by the Lahore High Court, Lahore in F.A.O. No.294 of 2001.

2. Brief facts of the case are that the suit filed by the respondent against the petitioner was decreed for recovery of money by the learned Single Judge of the Lahore High Court vide order dated 4-7-2000. The petitioner on 16-4-2001 filed an application under section 12 of Act XV of 1997 for setting aside the said decree on the ground that correct address of the petitioner had not been given in the plaint, therefore, it was not served in accordance with law. Learned Single Judge on 19-2-2001 dismissed the application on the ground of limitation holding that the petitioner had in fact been served. Thereafter, the petitioner filed F.A.O. No.294 of 2001, which was dismissed in limine vide impugned order dated 8-10-2001. Hence this petition.

3. Mr. Ali Sibtain Fazali learned Advocate Supreme Court for the petitioner, inter alia, contended that the Courts below did not consider the case in its proper perspective; that the application for setting aside the ex parte decree was in time and the impugned judgment has resulted in miscarriage of justice and that the petitioner had intimated the respondent about the change of the address, which is at page 46 of the paper book.

4. We have considered the arguments of the learned counsel and minutely perused the material available on record. Section 12 of the Credits and Finances Act, 1997 provided as under:-- "Power to set aside decree.

In any case in which a decree is passed against a defendant under subsection. (4) of section 9 he may, within twenty -one days of the date of the decree, or where the summons was not duly served when he has knowledge of the decree, apply to the Banking Court for an order to set it aside; and if he satisfies the Banking Court that he was prevented by sufficient cause from making an application under section 9, or that the summons was not duly served, the Court shall make an order setting aside the decree against him upon such terms as to costs, payment into Court or furnishing of security or otherwise as it thinks fit and allow him to make the application within ten days of the order." The petitioner before the learned Single Judge of the High Court as well as before the learned Division Bench also raised this plea. Perusal of the record shows that on 4-7-2000 none appeared before the trial Court, nor any application for leave to defend the suit was filed, and the Judge Banking Court decreed the suit as provided under section 9(4) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 and Order 37, rule 2 of the Code of Civil Procedure, as the averments made in the plaint were verified on oath and the suit was decreed as prayed. Thereafter, the petitioner moved an A application for setting aside ex parte decree. According to the record after filing of the suit summons were issued to the petitioner/defendant as required under the law and subsequently, publication of the same was made in Daily "Nawa-i-Waqt" and "The News", but none appeared before the Court as mentioned hereinabove. Learned Single Judge very carefully examined the record and found that the petitioner had been sued by giving same address, which was available with the respondent/plaintiff and proper course of the service was adopted. It is very strange to note that in application for setting aside the ex parte decree no definite date was mentioned. The application before the Court was filed on 16-4-2001, whereas the Court wherein the auction of the property had to take place on 17-3-2001, which was after publication of the notice, took the execution proceedings. Even during the auction proceedings the petitioner should have learnt about the decree on the date of auction, but he did not file any application, but the same was filed on 16-4-2001, which itself manifests that it was beyond the period and was barred by time. The receipt of the petitioner herein was refuted and denied by the decree-holder before the learned Single Judge and it was averred that the same address was given in the plaint, which also contains the previous one and it reads as under:-- "Messrs Kapur Textile Mills Limited having its registered office at Wahid Chambers, 2nd Floor, Liberty Market, 90A-C-H, Gulberg-III, Lahore, presently known as Saleem Demin Industries (Pvt.) through its Chief Executive, having its Principal Office at 59-X-101, Susan Road, Madina Town, Faisalabad." The Essence of the above facts clearly shows that the Court adopted proper course of service of the petitioner in the suit and the petitioner in his own wisdom moved an application before the Court for setting aside the ex parte decree, which was time-barred. The impugned judgment is well-reasoned and is based on the proper appreciation of the material available on record. It would be advantageous to refer to the relevant paragraph of the impugned order which reads as under:-- "

5. We have given some thought to the said contention of the learned counsel. There can possibly be no cavil with the proposition that the said 'comma' and 'or' do separate two different situations. These are (i) where a decree has been passed after due service; and (ii) where summon has not been duly served. We are unable to bring ourselves in accord with further arguments of the learned counsel that a separate period of limitation for each of the said two situations is to be read in the said section

12. To our mind on plain and simple reading of section 12 it provides one period of limitation i.e. 21 days. However, date of commencement of said period of limitation is different in the said two situations. In case of decree that has been passed after due service of summon the said period of 21 days shall start from the date of decree itself; while where the summon has not been duly served then said period of 21 days shall start from date of knowledge. It will further be noticed that section 12 continues on to further distinguish the two situations. In case where the summon has been duly served, the applicant has to satisfy the Banking Court that he was prevented by sufficient cause from making application under section

9. While in the second situation provided for in the said section the applicant has only to show that the summon was not duly served. However, both these situations are governed by the same period of limitation i.e. 21 days, laid down therein. In the present case it stands established on record that application was filed beyond the period of limitation i.e. more than 21 days after the date appellant admittedly acquired knowledge of the decree. Learned Single Judge, therefore, very correctly held that the application is barred by time." There is no misreading or non-reading of the material available. Moreover, question of general public importance is also not involved in this case.

5. For the facts and reasons stated hereinabove, we are of the considered opinion that the petition is without merit and substance, which is hereby dismissed and leave to appeal declined. S.A.K./K-80/S Leave declined.