1993 PLP 1780 (MLD)

The position, therefore, is that the defendant No.l was served by the bailiff on 25-4-1991 and by publication on 26-4-1991. The summon which was sent to him by registered post must also be presumed to have been delivered to him on 20-4-1991. The defendants No. 8 to 13 were not served by bailiff nor by registered post but have been served by publication on 26-4-1991 and 29-4-1991. All these defendants filed their applications under Order 37, Rule 3, C.P.C. on 15-5-1991. In support of the application by defendants No.l and 8 to 13, defendant No.8 has filed his affidavit. He claims that being the Chief Executive of the defendant No.l, he has been solely responsible for the management and administration of the affairs of the defendant No.l and also its directors; that defendants No.9 and 10 have resigned from the directorship of the defendant No.1 that defendant No.2 is a pardanasheen lady; and that defendants No.11 and 13 are neither share-holders nor directors of defendant No.l. It is also alleged by defendant No.8 in his affidavit that he lives permanently in Rawalpindi and visits Karachi usually once a month; that on 15-4-1991 he left Karachi and went to Rawalpindi and while he was there, he fell seriously ill on 21/22-4-1991 due to high level of sugar and chest pain and that due to his illness he could not leave Rawalpindi. It is alleged that there was no responsible educated officer to look after the affairs of the defendant No.l at Karachi and that on 6-5-1991 when he contacted the office of the defendant No.l at Karachi he was informed on telephone by an employee that some papers from the Court were received by him. On 7-5-1991 he received his test report and left Rawalpindi by car for Karachi reaching there on 8-5-1991 and found the summon lying in the office of the defendant No.l. On the same day he engaged the Advocate, who filed his vakalatnama on the same day. The defendant No.8 goes on to allege that due to hectic travel from Rawalpindi to Karachi by road his condition once again became serious and he was advised to take complete rest and could not contact his lawyer uptil 14-5-1991. It is finally alleged that he does not subscribe to the "Morning News" in which the summon was published. The documents filed with the affidavit to show that the defendant No.l was too ill to take any steps to file the application under-Order 37, Rule 3, C.P.C. consist of prescription dated 23-4-1991, three test reports dated 1-5-1991 and two test reports dated 7-5-1991. None of these test reports appears to indicate that defendant No.8 was suffering from such a disease as incapacitated him from filing the application for leave to appear and defend the suit within time. The defendant No.8 has also produced with his affidavit a medical certificate dated 14-5-1991 to the effect that he was suffering from diabetes, Mellitis and Angina and that he has been advised rest and treatment for two weeks with effect from 8-5-1991. This certificate appears to have been procured for the purpose of this case and, in any case, does not show that the defendant was incapacitated from making the application under Order

37. Rule 3, C.P.C. The story of illness of the defendant is also not believable because if he was, in fact, so seriously ill, as he has tried to make out, he would certainly not have undertaken the journey from Rawalpindi to Karachi by Road. None of the other defendants has filed any affidavit in support of the application and no other ground for condonation of delay for filing the application have been urged. There is, thus, no merit in this application and the defendants have not disclosed any reason for condonation of delay. The application is, therefore, dismissed. ?

2. In consequence of. the dismissal of the application (CMA 2507/91 filed by defendants No.l and 8 to 13 for condonation of delay, this application is dismissed as barred by limitation.

3. This is an application filed by defendant No.6 under section 5 of the Limitation Act for condonation of delay in filing the application for leave to appear and defend the suit. The dafendant No.6 has been served by publication on 26-4-1991. The summon sent to him by registered post on 18-4-1991 has not been returned unserved and must, therefore, be presumed to have been delivered to him. It is not clear if and when the defendant No.6 was served by the bailiff but from the fact that the defendant sent a telegram dated 7-5-1991 to the Registrar acknowledging that he had received the summon in the suit, it is clear that he was served on or before 7-5-1991. He filed his application for leave to appear and defend the suit on 15-9-1991 i.e. almost five months after he was served. In the affidavit in support of the application, the defendant No-6 has alleged that he was seriously ill at the time when he received the summons in the suit, although he does not say when he received the summons. It is further alleged by him that the illness was prolonged and ultimately he had to undergo heart surgery on 7-9-1991. In support of the application, the defendant has filed photo copies of various prescriptions. None of these prescriptions which are dated June, 1991 indicates that the defendant No.6 was so sick as to be unable to make the application for leave to appear and defend the suit. The C open heart surgery on the defendant No.6 was performed on 5-9-1991 and there is no explanation as to why the application for leave to appear and defend the suit was not filed at least before 5-9-1991. This application is, thus, without merit and is hereby dismissed.

4. In consequence of the dismissal of the application (CMA 4250/91) for condonation of delay in filing of the application, this application is dismissed as barred by limitation. In consequence of dismissal of the applications of the defendants No, 1, 6, 8, 9, 10,11, 12 and 13 for leave to appear and defend the suit, the plaintiff would be entitled to decree as prayed. However, with regard to the defendants No.8 to 13 the allegation in the plaint is that they have come into the management of the defendant No.l and by their various writings under the signature of defendant No.8, including the writing dated 19-6-1990 promised to pay the plaintiffs dues. It is, therefore, claimed that the defendants No.8 to 13 are sureties of defendant No.l. The allegation is said to be supported by a letter dated 19-6-1990, a photo copy whereof is Annexure P-9 to the plaint. That letter has been signed by Shamimuddin, defendant No.8, for Bahawalpur Textile Mills, defendant No.l. It is stated in the letter that "we have taken over the Bahawalpur Textile Mills Ltd., Khanpur, from the previous management and have purchased the controlling shares"; and that the Executite Board of the plaintiff and Pakistan Banking Council have approved the re-structuring of the outstanding liabilities and change of management of Bahawalpur Textile Mills Ltd. The latter then goes on to discuss the problems of the defendant No.1 and to request that the repayment of the loan be rescheduled. It is clear that in whatever capacity the letter dated 19-6-1990 was addressed by the defendant No.8 to the plaintiff, it was not in his personal capacity and there is nothing in the letter which can be construed as any undertaking on the part of the defendant No.8 to personally assume the liability for repayment of the liabilities of the defendant No.l. The other defendants, namely, defendants No.9 to 13, have not even been mentioned in the letter. In the circumstances, no liability against defendants No.8 to 13 has been disclosed; and Mr. Mansoorul Arfin fairly agrees that the plaintiffs have not been able to show any claim against the defendants Nos. 8 to

13. The suit against defendants Nos. 8 to 13 is, therefore; hereby dismissed. By an order dated 22-10-1991, the suit was decreed against defendants No. 2 to 5 and

7. The plaintiff is not entitled to decree against defendants N6.8 to

13. That leaves defendants No.l and

6. The suit is, therefore, decreed against the defendants No.l and 6 as prayed. H.B.T./U-136/K????????? Order accordingly.