1993 PLP 54 (MLD)

In the case of Jam Khurshid Khan v. Province of West Pakistan, Aftab Hussain, J. observed, obiter dictum, that the ratio in the case of West Pakistan WAPDA v. Omar Sons Ltd. PLD 1970 Lah. 398 to the effect that Article 181 applies to an application under section 8 of the Arbitration Act was shaken by the latest pronouncement of the Supreme Court in Naeem Finance Ltd. v. Bashir Ahmad Rafiqui. The subsequent Supreme Court judgment reported in PLD 1972 SC 123 was not referred to. In the case of Messrs United Bank Ltd. v. Ali Habib & Company 1988 CLC 292, it was conceded by the counsel that no period of limitation applied to an application under section 5 of the Limitation Act but it was objected that the application was not maintainable as it had not been filed alongwith the application for leave to appear and defend the suit. Ahmed Ali U. Qureshi, J. held that an application under section 5 of the Limitation Act cannot be rejected only because it was filed after the application under Order 37, Rule 3, C.P.C. This decision, therefore, is not germane to the question whether or not Article 181 of the Limitation Act applies to applications other than those under the Code of Civil Procedure. In the case of United Bank Ltd. v. Mrs. Rehmat, the objection was that the application under section 5, having been filed seven months after the filing of the application under Order 37, Rule 3, C.P.C. was not maintainable because it was belated. It was observed that the counsel for the plaintiff was not able to show that the application under section 5 of the Limitation Act, though belated, was barred by time and that "no period is prescribed for filing an application under section 5 of Limitation Act, therefore the residuary Article 181 of Limitation Act, will be applicable which prescribes a period of three years from the date when the right to apply accrues to an applicant". On the facts of the case, it was held that the application was filed within seven months and was, therefore, within time. The observation was not strictly necessary and, thus, obiter dicta; and the two decisions of the Supreme Court, mentioned above, were, apparently, not cited before the learned Judge. In view of the pronouncements of the Supreme Court on the question of application of Article 181 to applications other than those under the Code of Civil Procedure, it is not necessary to consider the observations made in 1988 CLC 292 and 1991 MLD 1803; but it has become necessary to decide which of the two judgments of the Supreme Court is binding and, therefore, must be followed. The case of Naeem Finance Ltd. was decided earlier, in 1971, by a Bench of three Judges while the case of M. Imam‑ud‑Din Janjua was decided later, in 1972, by a Bench of two Judges. Similar situation arose in the case of Usman v. Labour Appellate Tribunal and another 1984 CLC 2782. It was there contended, on the basis of a decision of a Bench of three Judges, reported in PLD 1974 SC 139, that the petition under Article 199 of the Constitution was incompetent as the decision of the appellate Court could not be interfered with under Article 199 of the Constitution. A Division Bench of this Court, consisting of Salim Akhtar and Hyderali Pirzada, J.J, held that normally the rule is that where the law is laid down differently in two different decisions of the Supreme Court by Benches of different strength, the decision of the larger Bench shall be followed as the binding decision on the subject. Following this principle, the Division Bench followed, in preference to the decision of a Bench of three Judges in PLD 1974 SC 139, the judgment of a Full Bench of the Supreme Court in Rahim Shah's case PLD 1973 SC 24 where it had been decided that the High Court will interfere if the act done or proceeding undertaken is in violation of any law or any established principle of law, that the term "law" was not confined to "statute", and that in holding the inquiry the Superior Courts are not restricted to an examination of the record of the case and may even record evidence to determine the legality of the act done or proceeding undertaken. Ajmal Mian, J. (as he then was) followed the same principle in the case of Amir Ali v. Mrs. Alima Ahmed PLD 1981 Kar. 150 and held that since the case of Muhammad Yusuf v. Abdullah PLD 1980 SC 298 had been decided subsequently by a larger Bench of the Supreme Court, he was bound to follow it in preference to an earlier decision of a smaller Bench in Alif Din v. Khadim Hussain 1980 SCMR 767 In appeal from that case, it was contended, in Alima Ahmed v. Amir Ali PLD 1984 SC 32, on behalf of the appellant/landlord, that whether it be the law laid down in Muhammad Yusuf's case which is applicable that laid down in Alif Din's case, the tenant admittedly was in default in payment of rent. It was held by the Supreme Court that, on the facts of the case, the tenant was clearly in default even after allowing him the benefit of the law laid down in Muhammad Yosuf case. Therefore, although appeal from the judgment of the High Court was allowed, the validity of the principle that a decision of a larger Bench of the Supreme Court is binding on the High Court was in no manner questioned.‑‑‑See PLD 1984 SC

32. The question as to which of the two decisions of the Supreme Court, namely, those in Muhammad Yousuf s case and Alif Din's case, was binding also arose in the case of ABCO International Corporation of Pakistan v. Mrs. Salima Hashim Raza 1984 CLC 2483. It was there argued that the High Court should follow the decision in Muhammad Yousuf case because it was decided by a Bench of four Judges while Alif Din's case was decided by a Bench of two Judges. The argument was not accepted; and, while holding that, on the facts of that case, no occasion arose for relying upon one or the other of those decisions of the Supreme Court, it was observed that it was not possible for the High Court to make such distinction between two judgments of the Supreme Court, that both those judgments have the force of law, that, as shown by later decisions of the Supreme Court in Alima Ahmed v. Amir Ali PLD 1984 SC 32 and Mrs. Zehra Begum v. Messrs Pakistan Burmah Shell Ltd. PLD 1984 SC 38, both Muhammad Yousuf case and Alif Din's case have been treated as laying down the law and have been noted. The observation in 1984 CLC 2483 that it is not possible for the High Court to make a distinction between two judgments of the Supreme Court is contrary to the principle followed in Usman v. Labour Appellate Tribunal and in Amir Ali v. Mrs. Alima Ahmed. It may, with respect, be added that it is not only possible but necessary, in case of conflict between two judgments of the Supreme Court, rendered by Benches of varying strength, to decide which of the two judgments has a binding effect and, therefore, must be followed. In 1984 CL%' 2483 it was not, in the event, necessary to make the choice, The passage, cited in 1984 CLC 2483, from the judgment in PLD 1984 SC 32, is, in fact not an observation by the Court but a submission by a counsel; and the finding in the case was that even after benefit of the law as laid down in Muhammad Yousuf case was allowed to him, the tenant was a defaulter. It was obviously not necessary, m the circumstances of the case, to decide whether the law with regard to applicability of an agreement of tenancy, after the expiry thereof, was as laid down in Muhammad Yousuf s case or in Alif Din's case; and the case was decided on the basis that, in any event the tenant was a defaulter. Needless to say, the question of following the one or the; other 'decision of the Supreme Court arises only when there is a conflict in those decision on a given principle of law. No such situation arose in PLD 1984 SC

38. In that case the question for consideration was whether the provisions of section 15(2)(viii) of the Sindh Rented Premises Ordinance, 1979, would not override the terms of the lease deed which had provided that the tenant would not be evicted if it continued paying the rent reserved and observed the covenants and it was held that the landlord could not repudiate the agreement and seek eviction of the tenant under the Ordinance while the lease deed had not expired. The cases of Muhammad Yousuf and Alif Din, in so far as they had bearing on the question before the Court were referred to because on the particular question there was no conflict but concurrence in the two judgments. The conflict in those two decisions, it may be noted, is in respect of the efficacy or applicability of the terms of a lease after its expiry and not during its currency. Mr. Mansoorul Arfin invited my attention to the case of Muhammad Yousuf v. Muhammad Saghiruddin Qureshi 1987 CLC 76 where it has been observed by Ally Madad Shah, J. that the law declared by the Supreme Court in Muhammad Yousuf case was endorsed by the Supreme Court in Alima Ahmed v. Amir Ali and in Abdul Sattar v. Malik Muhammad Afzal PLD 1985 SC

148. The learned Judge also followed the law declared in Muhammad Yousuf case and observed that the consensus of the view propounded by the Supreme Court was that the terms and conditions of the statutory tenancy following the extinguished contractual tenancy are regulated by the relevant law. The rule that in case of conflict in the judgments of the Supreme Court, the one by larger Bench has to be followed was affirmed by the Supreme Court of India in the case of Mattulal v. Radhe Lal AIR 1974 SC 1596. Bhagwati, J. (as he then was) speaking for a Division Bench of the Supreme Court of India, observed that it was not possible to reconcile the observation in the two cases cited in argument and that "that being so, we must prefer to follow the decision in 1966 MPLJ 26 as against the decision in AIR 1969 NSC 186 as the former is a decision of a larger Bench than the latter". Again in Ganapati Sitaram Bailvalkar v. Waman Shripad Mage AIR 1981 SC 1956 the matter under consideration was held to be concluded by the decision, by a Bench, of four Judges, in AIR 1973 SC 772, to the effect that the transfer of tenancy after it ceases to be contractual was not permissible under the Bombay Rent Act; and the argument that that judgment was dissented from in subsequent decision AIR 1976 SC 2229 by a ‑ Bench of three Judges was repelled because the latter case was concerned with the provisions of another statute and it was observed:‑‑‑ "We may further state that the case first noted is a four Judge decision and is binding on a bench of three Judges. No question of any dissent therefore arises." The result of the above discussion is that the decision of the Supreme Court in PLD 1971 SC 8 is binding upon me. It has, therefore, to be held that) Article 181 of the First Schedule to the Limitation Act applies only to applications made under the provisions of the Code of Civil Procedure. It, I therefore does not apply to applications under section 5 of the Limitation Act. Another preliminary objection raised by Mr. Sajid Zahid was that in any event the applications for leave to appear and defend the suit are barred by limitation because as shown by the order of the Additional Registrar, dated the 18th November, 1986, summons by registered A/D post was issued on the 9th October, 1986, and must be deemed to have been served upon the defendants. He relied upon the case of Muhammad Sulaiman Malik and another v. Royal Trust Corporation of Canada and others 1979 CLC

48. Mr. Mansoorul Arfin objected that the ground regarding service by post had not been taken in the counter‑affidavit of the plaintiff and, therefore, could not be urged during the arguments. He further contended that the record does not show that the defendants were served by registered A.D. Post because no A.D. Cards are on record. However, the facts that summonses were sent by registered A.D. post and that the envelopes containing the summonses were not returned by the post office were not contested. In so far as the service by registered post is a matter of record, it was not necessary for the plaintiff to raise the question in its counter‑affidavit; and, in any case, the Court can suo motu take notice of questions relating to limitation. As for the A.D. Cards, it is common knowledge that in large number of cases, if not in almost all cases, A.D. Cards are seldom returned by post office‑‑‑See 1981 CLC 1495. It remains to be considered whether in the circumstances of the case, a presumption arises that the envelopes containing the summonses were delivered to the defendants. Section 27 of the General Clauses Act, 1897, provides: ‑‑ "Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by Post then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre‑paying and posting by registered post, a letter containing document, and, mess the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post." As stated above, summons by registered A.D, post were, in this case, patched on the' 13th October, 1986, according to the noting on the copy of the summons which is on record. The fact that summons were sent in properly addressed and prepaid envelopes may be presumed‑‑‑See Article 129, illustration (e), Qanun‑e‑Shahadat, 1984. Therefore, a presumption arises under section 27 of the General Clauses Act that summons were duly served n the defendants by registered post A.D. It is true that the presumption under B section 27 of the General Clauses Act is rebuttable but not only is nothing said about service by post in the affidavits of the defendants, no attempt was made by then counsel to rebut the presumption or to ask for any opportunity to do so. The defendants are represented by a senior and experienced counsel and it is inconceivable that the question of service by post was not present to their minds when they made their applications under section 5 of the Limitation Act. A further presumption that the envelopes containing the summons were delivered to the defendants on the day next after posting, viz 14th October, 1986, may also be drawn under the provisions of section 27‑‑‑See PLD 1959 Kar.

629. Mr. Mansoorul Arfin then submitted` that the service by publication was not due service because the summons published in the `Morning News' did not come to the knowledge of the defendants. In support of the proposition that the summons must come to the knowledge of the defendants before the publication thereof can be said to be good service, Mr: Arfin relied on the decisions in G. Shanmukhi v. Utakor Venkatarama Reddi AIR 1957 A.P. 1, S. 3ampuran Singh v. Chief Settlement Commissioner AIR 1960 Pb. 153, Zaran Begum v. Saidal Khan PLD 1975 Azad J&K 122 and Mst. Afzal Begum v. Y.M.CA. P L D 1979 SC

18. In AIR 1957 A.P. 1, the defendant was served bar publication under Order 5, Rule 20, C.P.C. and, upon his non‑appearance, suit was decreed against him ex parte. Upon his application to set aside the decree on the ground that he had no knowledge of the suit, it was held that service by publication may or may not be "due" service according to the circumstances of the case and that it was open to the defendant to establish that he never avoided service and that, in any case, notice of the claim had not been brought home to him; and it was, upon analysis of the provisions of Order 5 of the C.P.C., observed: ‑‑‑ "If, of course, the defendant has been deliberately keeping out of the way and substituted service is ordered in such a case, it certainly would be "due" service." and further that the effectuality of the service under Order 5, Rule 20, C.P.C. is‑‑‑ "for the purpose of enabling the Court to go on with the suit. But its effectuality against the defendant depends solely on whether he avoided service or whether as a matter of fact he came to know of the suit otherwise. In PLD 1975 Azad J&K 122, the view taken as to the effect of service under Order 5, Rule 20, C.P.C. is similar to the one adopted in AIR 1957 A.P.1 and it has been observed: ‑‑‑ "This is to emphasise how essential it is to make every possible endevour to get the defendant personally served. The provisions for substituted service have to be looked into and applied in this context." In PLD 1979 SC 18 the above and some other cases from the Indian Jurisdictioin were discussed and a passage from the judgment of Sulaiman, Acting C.J' in Ram Barose v. Ganga Singh AIR 1931 All. 727 was quoted with, approval as follows: ‑‑‑ "If I may say so in all humility and with due deference that it was rightly observed above that where substituted service has been effected on the defendant under the rule and ex parte decree was passed against the defendant, thereby the defendant is not precluded from afterwards showing to the satisfaction of the Court that order for substituted service was improperly procured, in the absence of the defendant, at the behest of the plaintiff on the one‑sided representation made by him at the time and that he was not duly served in the matter." The basis of the above decisions is that since substituted service is ordered ex parte upon representation by the plaintiff that the defendant is avoiding service, it is open to the defendant to show that he did not avoid service and that order for substituted service was improperly obtained. Now, service by publication under Rule 8 of the Banking Companies (Recovery of Loans) Rules, 1980, is not dependent upon any order being obtained by a plaintiff or upon the defendant avoiding service. Besides, whereas Order 5, Rule 20, C.P.C. provides that substituted service shall be effectual as if the defendant had been personally served, the provision in Rule 8 is that service in any of the three modes prescribed therein "shall be deemed to be proper and valid service for the purposes of the Ordinance". The service by publication under Order 5, Rule 20, C.P.C. is, therefore, on a different footing from such service under Rule 8; and the propriety or the validity of service by publication under Rule 8 is not dependent upon avoidance of service by the defendant. Mr. Sajid Zahid, in reply, contended that the judgments cited by Mr. Arfin were all concerned with the interpretation of the expressions in Order 5, Rule 20, C.P.C. and were, therefore, not relevant; and that the question of effectiveness and the validity of service by publication under the provisions of Rule 8 of Banking Companies (Recovery of Loans) Rules has been decided in several cases including Messrs Union Bank of the Middle East Ltd. v. Messrs Zubna Ltd. PLD 1987 Kar. 206, Pakistan Insurance Corporation v. Grindlays Bank Ltd. 1987 CLC 2164 and Messrs Ahmed Autos and another v. Allied Bank of Pakistan Ltd. PL 1987 SC

497. In PLD 1987 Kar. 206, it was held: ‑‑‑ ......I am, therefore, of the view that the summons and 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 anyone 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 1987 CLC 2164, it was held by a Division Bench of this Court that even though the attempt to effect service of summons is to be made simultaneously by the three modes prescribed by Rule 8 but the service can be held good if a defendant is served by any one or more of the aforesaid prescribed modes of service. On the facts of the case, it was held that the Corporation (defendant) was in fact served with the summons by publication on 7‑4‑1980 and that, therefore, the application for leave to appear and defend the suit, which was filed on the 15th May, 1980, was patently time‑barred. The same question came up before the Supreme Court in PLD 1990 SC 497 where the passage (quoted above) from PLD 1987 Kar. 206 was cited with approval and it was held that the view taken in that case is in consonance with the spirit of the Ordinance. Mr. Arfin submitted that in 1987 CLC 2164 and PLD 1990 SC 497 a situation where publication may not come to the knowledge of defendant, was not taken into account. The judgments referred to are concerned with the interpretation of a particular statute in the light of the fact that it is a remedial statute and must be construed liberally. It cannot, therefore, be said that the situation pointed out by Mr. Arfin was not present to the minds of the Hon'ble Judges of the Division Bench of this Court and of the Supreme Court while interpreting the provisions of Rule

8. The argument advanced by Mr. Arfin that the service by publication was not "due service" because it allegedly did not come to the knowledge of the defendants cannot be accepted and the result is that the service by publication must be held to be good service. Mr. Arfin then contended that since the Banking Companies (Recovery of Loans) Ordinance has provided a special forum with special jurisdiction and special procedure, the summons issued in the suit should have indicated that the suit has been filed in the jurisdiction of the High Court conferred by the Ordinance so as to bring it home to the defendants that it has been filed on the basis of instruments other than those specified in Order 37; and that the summons published in the `Morning News' not having met that requirement was not a proper commons and, therefore, service on the basis of such summons cannot be held good service. The distinction sought to be made by the learned counsel between a summons issued in the ordinary or normal original jurisdiction of the High Court under Order 37 and that under the Ordinance is one without any difference. In either case, the purpose is to require the defendant to obtain leave, within ten days from the service of the summons, to appear and defend the suit; and Mr. Arfin did not point out how the mention of the special jurisdiction in the summons would have made any difference or caused any prejudice to the defendant. Section 7(2) of the Ordinance provides that a Special Court shall in exercise of its civil jurisdiction, follow the summary procedure provided for in Order 37 in the First Schedule to C.P.C., and sub rule (2) of Rule 2 of Order 37, C.P.C. provides that in a suit under the provisions of Order 37, C.P.C. the defendant shall not appear and defend the suit unless he obtains leave. Therefore, in all suits under the ~ Ordinance obtaining of leave is a precondition to the defendant's right to appear and defend the suit; and the summons in Form 4 in Appendix B to the First Schedule of C.P.C. is designed to bring that precondition home to the defendant. The summons which was issued in the suit, even though it does not mention that the suit had been filed under the Ordinance, quite obviously fulfilled the same object i.e. to inform the defendants that they were required to obtain leave to appear and defend the suit. It was submitted by Mr. Arfm that the provisions of Order 37 as incorporated by reference in the Ordinance, apply only to the instruments mentioned therein, namely, promissory notes, bills of exchange and hundis, and do not apply to a suit on the basis of a guarantee or a mortgage. It follows, according to him, that Form 4 in Appendix B to First Schedule of C.P.C. is intended to be used only in suits based on the instruments specified in Order 37 and not in any other suit. The argument is misconceived. It is true that in the ordinary or normal jurisdiction of the High Court, the provision of sub rule (1) of Rule 2 of Order 37 is applicable in suits upon bills of exchange, promissory notes or hundis and, to that extent, it may perhaps be said to confer upon a plaintiff a substantive right to file a summary suit. The first part of sub rule (1) of Rule 2 of Order 37 is concerned with conferring an option on the plaintiff to file what is termed a summary suit upon a bill of exchange, a promissory note or a hundi; while the second part thereof provides that summons in such a suit shall be in Form 4 in Appendix B. The provision; regarding the summons is quite obviously a procedural one; and that provision and the provisions of sub‑rules (2) and (3) of Order 37, Rule 2, contain the procedure to be followed in such a suits. Now in the scheme, of the Ordinance, there is no provision for different kinds of suits and all suits, including suits based on mortgages of all kinds and on statements of accounts, are treated tee; and in all these suits, the procedure provided for in Order 37 is, by virtue of the provisions of section 7(2), to be followed. It makes no difference that under Order 37, the procedure prescribed therein was restricted to the suits on the instruments mentioned therein because the same procedure, including issuance of summons in Form 4 has now been extended, to the suits under the Ordinance. It was next contended that even if the service of the summons on the defendants is held to be good, their applications for leave to appear and defend the suit are not barred by limitation because the period of limitation for those applications is governed by Article 181, and not Article 159, of the First Schedule to the Limitation Act. According to Mr. Arfin, Article 159 does not apply to suits under the Ordinance because the reference to Order 37 of C.P.C. therein is reference to suits upon the instruments mentioned in Order 37 and not to suits under the Ordinance. Article 159 applies to an application for leave to appear and defend a suit under Order 37, and it would appear that the reference to Order 37 in Article 159 is reference to the procedure prescribed in sub‑rule (2) of rule 2 of Order 37 which makes it incumbent upon a defendant to apply for and obtain leave before he can appear and defend the suit. That procedure is now also applicable to suits under the Ordinance. Now, can it be said that even if the procedure prescribed in Order 37 is extended or made applicable to suits other than those upon the instruments specified in Order 37, Article 159 would not apply to those suits? There is nothing in the language of Article 159 to justify such an argument. The same question was considered by Mamoon Kazi, J. in Suit No.67 of 1987, where it was held that the provisions of Article 159 of the Limitation Act are to be read in conjunction with Form No.4 in Appendix B', otherwise the words in Form 4 requiring the defendant to obtain leave from the Court within ten days to defend the suit, would be rendered redundant and that as Form No.4 is applicable to all suits filed under the summary procedure referred to in Order 37, C.P.C., it should follow as a natural consequence thereof that Article 159 should equally apply to suits filed under section 7(2) of the Ordinance. It was further held that application of Article 181 of the First Schedule to the Limitation Act to suits filed under the provisions of the Ordinance would lead to absurd consequences as the said Article provides for a period of limitation of three years for filing of an application and would frustrate the very purpose for which the provisions of Order 37 have been extended to suits filed under the Ordinance. Respectfully following dictum in Suit No.67 of 1987, 1 would hold that the provisions of Article 159 of the First Schedule to the Limitation Act apply to the suits filed under the Ordinance. The result of the above discussion is that no period of limitation is prescribed for an application under section 5 of the. Limitation Act and that the period of limitation for making an application for leave to appear and defend the suit filed under the provisions of the Banking Companies (Recovery of Loans) Ordinance is prescribed by Article 159 of the First Schedule of the Limitation Act. Although, therefore, the defendants' applications under section 5 of the Limitation Act are not barred by limitation, yet the applications for leave to appear and defend the suit having been filed after the expiry of ten days from service by publication and by registered post are barred by limitation. It is, therefore, necessary to see whether the defendants or any of them have made out a case for condonation of the delay in filing‑ the applications for leave to appear and defend the suit. In the context of the defendants' applications for condonation of delay and the grounds set up in support of the applications, it would be pertinent to note the relationship between the defendants inter se. The defendants Nos. l, 7, 8 and 9 are companies; the defendant No.2 is a Director of defendants Nos.1 and 7; the defendant No.4 is a Director of defendants Nos. l, 8 and 9; and the defendant No.6 is a Director of defendant No.1. One Muhammad Yaqoob who was characterised by Mr. Sajid Zahid as a "common denominator" among the defendants and as a "front man" for them appears to have played a crucial role in the matter of obtaining the summons or the "knowledge" of the suit for them. He is said to have collected the summons for defendants Nos.1, 2 and 7 on the 20th October, 1986, informed the defendants Nos.4 and 6 of the suit on the 8th November, 1986, and accepted the service on behalf of the defendants Nos.8 and 9 on the 12th March, 1987. He is described in the affidavit in support of C.M.A. 2439/91 as an employee of defendant No.1 and it has not been claimed that he has any connection with any of the other defendants; but, as the defendants are interconnected and related, Yaqoob seems indeed to be the "common denominator". It is alleged by defendants Nos.1, 2 and 7 that Yaqoob, an employee of defendant Nod, had gone to Court, in connection with some other cases, on the 20th October, 1986, when he came to know of the suit and collected the summons for them; and that until that date these defendants had no knowledge of the suit. Yaqoob himself has filed an affidavit stating that he received the summons on behalf of defendants Nos1, 2 and

7. He has, however, said nothing as to how, in what circumstances and from whom he came to know of the suit; nor is there any explanation as to why he accepted the summons for only some of the defendants from whom he had no authority to do so while not doing so on behalf of other defendants. It may be noted that except that Yaqoob is an employee of defendant No.1 nothing has been said about his relationship with or authority from the other defendants. In these circumstances, the defendants' version that they came to know, of the suit on the 20th October 1986, is, to say the least, open to serious doubt. With regard to the defendants Nos.4 and 6, they were, according to the bailiff s report dated the 15th November 1986, served on the 23rd October 1986; by service on the Clerk of defendant. They have, however, denied service by bailiff and alleged that the signature on the summons is not that of any clerk and that, in fact, they do not have any clerk. According to them, they came to know of the suit on the 8th November 1986, when the same Yaqoob who accepted service on behalf of defendants Nos.1, 2 and 7, informed them. The defendants Nos.4 and 6 are directors of defendant No.1 and so is the defendant No.2. If Yaqoob could collect the summons for defendants Nos.1, 2 and 7 without any objection from them, there appears to be no reason why he could not do so for defendants Nos. 4 and 6 at the same time i.e. on the 20th October 1986. Then, there appears to be no reason‑‑‑and none has been advanced by the defendants or on their behalf ‑‑ to explain why Yaqoob did not inform the defendants Nos. 4 and 6 of the suit until the 8th November 1986. In any case, the defendants are interconnected as shown above and it is not possible to believe that the defendant No.2 would not have informed the defendants Nos.4 and 6 about the suit as soon as he himself came to know of it. It is also significant that the defendants Nos.4 and 6 have said nothing about the steps taken by them to obtain a copy of the plaint after the 8th November 1986; and there is nothing on the record to show that they obtained which copy from the Court after the 8th November 1986. These facts and the fact that their application for leave to appear and defend the suit was filed on the 11th November 1986, would indicate that they were aware of the suit before the 8th November 1986. Attempts by the bailiff to serve the summons on defendants Nos.8 and 9 did not succeed because, according to his reports, either no one was present in their offices when he went there or they had shifted their offices. It is alleged by them that on 12th March, 1987, the summons were received on their behalf by Yaqoob who had then been authorised to receive the summons on their behalf. It is not even alleged that they were not aware of the suit before the 12th March, 1987; and nothing has been said as to how they came to know of the suit. Even Yaqoob has not said in his affidavit that he informed the defendants Nos.7 and

8. The defendant No.4 is a director of defendants Nos. 8 and 9 and he, admittedly, was aware of the suit much before the 12th March, 1987. In the light of the above facts, it would appear that the defendants were aware of the suit otherwise than by service by bailiff and that Yaqoob accepted service of the summons on different dates at their instance. With regard to the publication of the summons in the Morning News, the plea of the defendants is that they do not read the `Morning News' and, therefore, were not aware of the publication. Service by publication under Rule 8 is valid and effective service and it is not open to the defendants to rely on a plea that they do not read the newspaper in which the summons was published particularly as they all reside in Karachi. If such a plea were accepted, the defendants in suits filed under the provisions of the Ordinance would be enabled to defeat the purpose of the Ordinance by not making applications for leave to appear and defend the suit within the prescribed time and then simply assert that they do not read a particular newspaper. As observed by Salim Akhtar, J. in United Bank Ltd. v. Messrs Kashmir Corner 1988 CLC 1068: "The object of publication is to see that the filing of the suit is properly and widely circulated. It is not the intention that the defendant should per chance or with certainty may read the newspaper." and in the case of Pak Libya Holding Co. (Pvt.) Ltd. v. Sauleheen Piracha 1991 CLC 1146 the plea that the defendant did not read the Morning News and was, therefore, not aware of the publication of the summons, was not accepted. Finally, the defendants were served by registered post and no explanation has been offered by any of them for not filing the applications for leave to appear within 10 days from‑ such service. The defendants were under a duty to explain each day's delay in‑ filing their applications after the expiry of J the period of limitation i.e. ten days after the service (See Allied Bank of Pakistan v. United Builders 1986 MLD 473) but they have failed to do so. In fact, the entire burden of the affidavits in support of the applications and of the arguments of the learned counsel for the defendants is that the applications under Order 37, Rule 3, C.P.C. are not barred by limitation; and the prayer for condonation has been made almost incidentally. Even during the arguments, all that was said by Mr. Arfin was that the fact that defendants obtained copies of the plaint on the 20th October 1986 i.e. only within four days of the publication of the summons shows that they were not negligent. In the first place, that statement is applicable only to defendants Nos.1, 2 and 7; and secondly, the argument runs counter to the defendants' stand in the affidavit. The defendants have, thus, failed to disclose sufficient cause for condonation of delay; and, in the circumstances, are not entitled to exercise of discretion in their favour. Their applications (C.MAs. 2437/91, 2438/91 and 2439/91) are, therefore, hereby dismissed. In consequence of the dismissal of the applications under section 5 of K the Limitation Act, the defendants' applications for leave to appear and defend the suit are also liable to be dismissed. C.MA. 6260/86 by defendants Nos.1, 2 and 7, C.MA. 6038/86 by defendant No.6, C.MA 6039/86 by defendant No.4 and C.MA.1483/87 by defendants Nos.8 and 9 are, therefore, hereby dismissed. AA./E‑59/K Applications dismissed.