P L D 1982 Lahore 436 (PLP)

MUHAMMAD ILYAS, J.‑The appellants Messrs Fatima Export Corpora tion, a proprietorship concern, and another, have filed this appeal to call in question an order made by the Special Judge Banking II, Lahore, whereby he had refused to set aside an ex parte decree passed in a suit brought against them by the respondent, Habib Bank Limited.

2. On the filing of the suit, summonses were ordered to be issued to the defendants. In that suit, the said Corporation was sued through its proprietor (President), Mr. Zafar Ahmed Malik, who was also separately impleaded as defendant No.

2. On the receipt of the summonses, on 30th June, 1981, Mr. Zafar Ahmed Malik, addressed a letter to the learned Special Judge of which the relevant contents read as follows:‑ "We refer to your notice against the Trial No. 131/81 filed by Habib Bank Ltd., through which you have asked us to appear in the Court of Special Judge Banking as to put forward our Arguments. We are still unaware about the details of the trial, therefore, we request you to please furnish us the contents of the Trial so that we may defend the case and have consultation with lawyer. We hope you will do the needful at your earliest possible so that we could prepare the case well in time." Thereafter, a telegram was also sent, by the Manager of the above Corpora tion, to the learned Special Judge in which the following request was made:‑ "Refer case 131/81 Mr. Zafar our President in Karachi on business tour contact could not be made even on phone please. Extend the date and inform us accordingly." On 6th July, 1981, for which date the suit had been fixed, nobody entered appearance on behalf of the defendants. Therefore, the learned Special Judge ordered ex parte proceedings against the defendants and, after recording the evidence, passed an ex parte decree against them.

3. It was after ten days of the passing of the ex parte decree that the defendants made an application, under, Order 1X, rule 13, of the Code of Civil Procedure; for setting aside the ex parte decree. In the application, it was stated that they were not duly served in the suit and, therefore, the ex parse decree was liable to be set aside. The view taken by the learned Special Judge was that the letter and the telegram referred to above clearly indicated that the defendants had knowledge of the suit but despite that they did not appear before the Court on the date fixed for its hearing and tried to prolong it on different pretexts. He, therefore, declined to set aside the ex parte decree and dismissed the defendants' application in this behalf. Hence this appeal by them.

4. It was contended by learned counsel for the appellants that the summonses sent to the defendants‑appellants were not in he prescribed form and, therefore, the service of the appellants was no service in the eye of law. Elaborating his argument, he submitted that since the suit was under Order XXXVII of the Code of Civil Procedure, the summonses ought to have been issued in Form IV of Appendix B of the First Schedule to the said Code but the summonses issued to the appellants were in the form prescribed for the suits of ordinary nature. It was, therefore, urged by him that no attempt was made to serve the appellants in the proper manner.

5. There is nothing on the record to show that the summonses issued to the appellants were not in Form IV, referred to above. It has also been provided in the second proviso to sub‑rule (1) of rule 13 of Order IX of the Code of Civil Procedure that no ex parse decree shall be set aside merely on the ground of any irregularity in the service of summonses if the Court is satisfied, for reason to be recorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim. Therefore, even if the summonses issued to the appellants were not in the prescribed form that alone would not constitute a valid ground for setting aside the ex parte decree if the appellant had knowledge of the date of hearing in sufficient time to appear on the said date.

6. As for the knowledge of the appellants, it is evident from the letter and the telegram mentioned above that it was much before the date of hearing, namely, 6th July, 1981, that the appellant had become aware of the said date. Faced with this situation, it was argued by learned counsel for the appellants that the letter had not been written by Mr. Zafar Ahmed Malik nor the telegram had been sent by the Manager of the aforesaid Corporation (appellant No. I ). No plea in this behalf was, however, raised in ‑ the application for setting aside the ex parte decree. It is, therefore, clearly an afterthought. Besides the letter and the telegram there is an acknowledgment receipt showing that the summonses were served on the appellants through registered post before the above date. It is not the case of the appellants that the acknowledgment receipt was not signed by any of their employees. We are, therefore, convinced that it was sufficiently before the date fixed for the hearing of the suit that the appellants gained knowledge of the suit and of the date of its hearing but they opted to stay back from the trial Court on the said date.

7. In result, we hold that no irregularity in the service of summonses on the appellants has been established by them and even if there was any such irregularity, it is of no legal consequence because the appellant had come to know of the date of hearing of the suit, in good time, but had deliberately avoided to appear before the learned Special Judge on the said date.

8. It was not contended by learned counsel for the appellants that the appellants were prevented by any sufficient cause from appearing before the learned Special Judge when the case was called on for hearing. The only plea raised by them was in regard to the service of summonses which has been found to he of no avail to the appellants. No legitimate exception can, therefore, be taken to the order of the learned Special Judge by which he bad declined to set aside the ex parts decree.

9. Resultantly, this appeal fails. It is dismissed in limine. S. A. H. Petition dismissed.