2004 PLP 499 (CLD)

Respondents: Ex parte. The present appeal proceeds against judgment and decree dated 15‑1‑2002, whereby the learned Judge Banking Court, after finding that the application for leave to defend, filed by the appellant, is barred by time, decreed the suit for the recovery of Rs.10,40,675 against the appellant.

2. Facts leading to the filing of the present appeal are that pursuant to the filing a suit for recovery of Rs.10,40,675, by the respondent‑Bank, against the appellant, before the learned Judge Banking Court, summons through all the modes of service, provided under the law, were issued to the defendant. Uptil 12‑1‑2002, no application for leave to defend was filed by the appellant and as the lawyers were busy on 12‑T‑2002 in Bar Association's Election, therefore, the learned Banking Court adjourned the case to 15‑1‑2002. Admittedly on 14‑1‑2002, the appellant filed an application seeking leave to defend the suit, but when the case taken up on 15‑1‑2002 the learned Judge, after finding that the appellant was served through publication in the newspaper on 12‑12‑2001 and the application was filed on 14‑1‑2002, which is barred by time, proceeded to dismiss the aforenoted application and proceeded to decree the suit for the recovery of Rs.10,40,675 together with costs and cost of funds, vide a composite judgment and decree dated 15‑1‑2002, hence the present appeal.

3. Although notices were sent to the respondent‑Bank for today, but none has entered appearance to defend this appeal, therefore, they are proceeded ex parte.

4. The learned counsel for the appellant has contended that the appellant was served through process‑server on 14‑12‑2001, therefore, the application for leave to defend, filed by the appellant on 14‑1‑2002 was within time as on 13‑1‑2002, it was Sunday, thus according to the learned counsel, the impugned judgment and decree is not sustainable in law.

5. Upon the examination of the record of the case, we find that on the presentation of the plaint by the respondent‑Bank, the learned Judge Banking Court issuer summons, through all the modes of service as prescribed under section 9(5) of the Ordinance, 2001 to the appellant/ defendant. Pursuant thereto, summons were also published in two daily newspapers in their publications dated 12‑12‑2001. Although the summons were also sent through registered post, yet we do not find any acknowledgement due on record, which will prove that in fact, the appellant received the registered letter, though the postal receipt is on the record of the case. Summons were also sent through the process‑server for 12‑1‑2002, but it appears from the report of the process‑server that even the said summons were not received by the appellant personally and the process‑server affixed the said summons on the address given in the summons, though there was no specific order for the affixation of the' summons. It flows from the above that there is no proof on record to show that the appellant was personally served through any of the modes of service provided under the' law. At the most, it can be construed that the appellant, must have come to know about .the institution of the suit, on 14‑12‑200, when the summons were affixed at his residence, as reported by the process‑server. So far as the publication in the newspapers is concerned, although it appears that copies of the newspapers were sent under postal certificate to the appellant, yet we do not find any proof on record that in fact copies of the newspapers were received by the appellant. Under the present set of circumstances, in our view, at best, the date of the service of the summons on the appellant could deem to be the date, when the summons were affixed at the residence of, the appellant. However, we find that there is no order passed by the learned Court regarding the affixation of summons. It is also questionable as to whether the process‑server, without any express order of the Court, could have affixed the summons on the residence of the appellant. Be that as it may, according to the stance of the appellant, he was served on 14‑12‑2001.

6. In the above perspective, the next question, which arises in the present case, is as to whether the application for leave to defend, admittedly, filed on 14‑12‑2001, was within the limitation period, prescribed under the law. According to the appellant, he was served on 14‑12‑2001 and the leave application was filed on 14‑1‑2002, which is to be filed within a period of 30 days. If the limitation period to file the application is taken from 14‑12‑2001 i.e. the date, of affixation of summons in that case, the period of 30 days comes to an end on 13‑1‑2002. We have consulted the Calender and find that 13‑1‑2002 was Sunday, therefore, no application could have been filed on that date, as the Courts were closed on account of weekly holiday. According to section 4 of the Limitation Act, "where the period of limitation prescribes for a suit, expires on a day when the Court is closed, such an application etc. may be preferred on the day the Court re opens". In this case, the Court reopened on 14‑1‑2002, thus the application for leave to defend, the limitation of which expired on 13‑1‑2002, was filed on 14‑1‑2002 i.e. on the re‑opening of the Court, was within time. 7.We have examined the impugned judgment and find that the learned Banking Court, while rendering the impugned judgment, did not consider this aspect of the case and confined itself to the fact that the appellant was served through publication of summons, in complete oblivion of the fact that the summons were affixed by the process‑server on 14‑12‑2001 and the application has been filed on 14‑1‑2002, therefore, as held above the same was within time. Had the learned Banking Judge taken into consideration the aforesaid facts, he may not have passed the impugned judgment. As held above, the application for leave to defend the suit, filed by the appellant is within time, therefore, we are inclined to set aside the impugned judgment and decree as the same is not sustainable in law.

8. Upshot of the above discussion is that the present appeal is allowed and the impugned judgment and decree dated 15‑1‑2002 is hereby set aside with no order as to costs. Resultantly, the suit for the recovery filed by the respondent‑Bank and the application for leave to defend, instituted by the appellant shall deem to be pending before the learned Judge, Banking Court, who shall at the first instance, decide the aforenoted application for leave to defend the suit after providing sufficient opportunity of hearing to the parties and of course, in accordance with law within a period of two months from the receipt of this order. M.B.A./A‑629/L Appeal allowed.