1992 PLP 1806 (MLD)

This application under section 5 of the Limitation Act has been filed by the defendants for the condonation of delay in making application under Order 37, rule 3, C.P.C., for leave to appear and defend the suit. The above suit was filed by the plaintiff Bank on 6‑3‑1989 for the recovery of Rs.85,70,781.08. It appears that in accordance with rule 8 of the Banking Companies (Recovery of Loans) Rules, 1980, summons were issued through bailiff, by registered post A.D. and by publication. The summons issued through bailiff was returned unserved as according to the bailiffs report the defendant was not present at the address when the bailiff visited the same. The publication was made in the daily newspaper `Leader' on 29‑8‑1989 and accordingly it was contended by the plaintiffs counsel that the service on defendants would be deemed to have been effected on that date under the aforesaid rule 8 and, therefore, the application under Order 37, rule 3, C.P.C., filed by the defendants on 20‑11‑1989 was hopelessly time‑barred. Mr. J.H. Rahimtoola, the learned counsel for the defendants Nos.1 and 2 has submitted that in so far as the defendant No.3 was concerned she died before the filing of the suit, whereas defendant No.2 who is the proprietor of defendant No.1, had permanently shifted to Lahore before the date of institution of the suit and as such the publication of the summons in the newspaper `Leader' was not seen by him. He further submitted that the `Leader' was an evening newspaper of Karachi with very limited circulation and for that reason it would not be fair to expect the defendant to have seen that notice. He stated that publication by itself was no proof of service on the defendants and in these circumstances, there was no reason to hold the service by publication as good. His next contention was that it was on 7‑11‑1989 that the defendant No.2 came to know of the suit when he visited the office of his counsel in connection with some other cases. On his instruction the counsel appeared in Court on 8‑11‑1989, when this case was fixed for final disposal, and took time for filing application for leave to appear and defend the suit. As till then the. defendant had not received copy of the plaint, the counsel requested for a copy which was supplied to him by the plaintiff's counsel on 11‑11‑1989 whereupon the application for leave to defend was filed on 20‑11‑1989. He submitted that computed from 11‑11‑1989 the application was within 10 days' limitation period. According to him, notwithstanding the fact that the defendant No.2 had learnt of the suit on 7‑11‑1989, the material date for purpose of limitation would be 11‑11‑1989 as that was the date on which copy of the plaint was supplied without which it was not possible to set out the grounds of defence in the application. Mr. Hamid Hussain, the learned counsel for the plaintiff has vehemently opposed the application. In reply to the first contention he submitted that rule 8 of the Banking Companies (Recovery of Loans) Rules, 1980, provides for three simultaneous modes of service, namely, (i) through the bailiff of the Court, (ii) by registered post acknowledgement due, and (iii) by publication, and the rule further provides that, "service in any of the aforesaid modes shall be deemed proper and valid service for the purposes of the Ordinance." As such even if service through the bailiff and by the registered post, acknowledgment due was not effected, still service by publication would be deemed proper and valid by virtue of the aforesaid rule 8 and the date of such service would be 29‑8‑1989 being the date of publication of the summons. The learned counsel denied the claim of the defendant No.2 regarding his shifting to Lahore and stated that the said defendant never intimated the plaintiff about such shifting. In reply to the second ground urged by the defendants' counsel, Mr. Hamid Hussain submitted that the defendant No.1 having come to know of the suit, as stated by him, on 7‑11‑1989, in any case the 10 days' limitation period would commence from that date and not from the date of receipt of the copy of the plaint. In support of his submission the counsel placed reliance on the case of Ahmed Autos and another v. Allied Bank of Pakistan Ltd. PLD 1990 SC 497 where their Lordships have cited with approval the following passage from the judgment of a learned Single Judge of this Court in the case of M/s. Union Bank of Middle East Limited v. M/s. Zubna Limited and others reported in PLD 1987 Kar. 206:‑ "....I am, therefore, of the view that the summons or notices shall be issued to the defendants simultaneously through bailiff, by registered. post A.D. and by publication. It is the statutory requirement and it must be complied with. Once it is shown that the summons or notices have been issued by the office, the service on the defendant by any one of the three modes will be considered as service on the defendant. The question that the plaint cannot be annexed in the case of publication should not be held to be an impediment in holding such service to be good inasmuch as, firstly, the copy of the plaint has been annexed to the summons sent to the defendant through bailiff as well as by registered post and secondly, the defendant is on notice to collect the copy of the plaint from the office and, in any case, there can be no impediment in making just an application for leave to defend, even without a copy of the plaint, within the statutory period. The grounds for leave to defend may be submitted later on, after the receipt of the copy of the plaint." In the present case there is no dispute about the summons and notices of the suit having been issued simultaneously through the bailiff of the Court, by registered post acknowledgement due and by publication and indeed no objection in this regard was raised by the defendants' counsel before me at any stage. In para. 5 of his affidavit filed in support of the application under section 5 of the Limitation Act the defendant No.2 has stated that he did not come across the publication in the Leader as he had shifted to Lahore. However, he did not produce any document to show that he had informed the plaintiff Bank about his shifting to Lahore or about the change in his address. Had the defendant No.2 really shifted to Lahore, as now claimed, he in the normal course, would have informed his bankers about the change of residence. There being nothing on record to show that such intimation had been given to the plaintiff it is difficult to accept the bare words of the defendant No.2 about his shifting to Lahore. Therefore, I am inclined to hold the service by publication as good. Even otherwise, as rightly pointed out by, the learned counsel for the plaintiff, the application for leave to appear and, defend is also time‑barred from 7‑11‑1989 when on defendant's own admission he learnt of the suit. There is no tenable explanation for not filing the application within time after the knowledge of the suit on 7‑11‑1989. The contention that the ten days limitation period for the application was to start from 11‑11‑1989 when copy of the plaint had been made available to defendants' counsel has no force. Apart from the fact that the defendant, with a little effort, could have obtained copy of the plaint on 8‑11‑1989 when the case was already fixed in Court, but even if copy of the plaint was not available, the defendant could still have at least filed the application for leave to defend within time and submitted further grounds later. In any case the issue stands settled in the above‑cited Supreme Court case. In these circumstances, in my view, no ground for the condonation of delay in submitting application for leave to appear and defend the suit has been made out by the defendants Nos. 1 and 2 and as such the application under section 5 of the Limitation Act is dismissed. AA./H‑311/K Application dismissed.