HUSSAN ARA and 8 others vs BANK OF PUNJAB through Manager

' MUHAMMAD JEHANGIR ARSHAD, J.---This F.A.O. Proceeds against the order dated 18-6-2005 passed by learned Judge Banking Court, Multan dismissing the application of the appellants for setting aside ex parte decree dated 23-8-2004.

2. The facts in brief are that respondent-Bank of Punjab filed a suit for the recovery of Rs,5,83,1 1 4.50 against the appellants on 17-6-2004 before learned Judge Banking Court-III, Multan, which was registered on the same day and issuance of summons in Form-4 of Appendix-B to C.P.C. And proclamation in daily "Pakistan" and "News" was ordered for the service of the appellants for 27-7- 2004. On the said date the learned Judge Banking Court directed that since the appellants had been served through summons and proclamation in English and Urdu newspapers, therefore, the file be put up for further proceedings on 23-8-2004. On 23-8-2004 the learned Judge Banking Court decreed the suit of the respondent-Bank against the appellants for Rs,4,97,431 with costs plus cost of funds. On 26-10-2004 the appellants moved application before the learned trial Court seeking setting aside of the ex parte decree dated 23-8-2004. The learned Banking Court after receiving reply from the respondent-Bank dismissed the said application on 18-6-2005 through the impugned order, hence, this F.A.O.

3. It is contended by learned counsel for the appellant that ex parte decree was passed against the appellants without fulfilling the requirements of section 9(5) of the Financial Institutions (Recovery of Finances) Ordinance. 2001 which prescribed the following modes of service on the defendant simultaneously:--

(i) By issuing summons in Form-4 in Appendix-B to the C .P. C.. ;

(ii) Service of the said summons through bailiff or Process Server of the Banking Court;

(iii) By sending notice through registered post acknowledgment due through courier service: and

(iv) By publication in one English and one Urdu daily Newspapers.

' But the file indicates that except directing for issuance of summons in Form-4 and proclamation in daily "Khabrain", Multan and "News", Lahore, no effort was .Made by the learned Judge Banking Court for effecting service on the appellant. Through other modes i,e, service of summons by bailiff or Process Server or through. Courier service under registered post acknowledgment due and the learned trial Court only by placing reliance on the publication of proclamation in two dailies passed ex parte decree against the appell tit, thus neither the appellant could be deemed to have been properly served nor the decree could be passed on the basis of such service.

4. On the other hand, learned counsel appearing on behalf of the respondent-Bank has supported the d ree of the learned trial Court and opposed this appeal by contending that as the application was filed beyond limitation, therefore, the same was rightly dismissed by the learned Judge Banking Court being barred by time.

5. We have considered the arguments of learned counsel for the parties and have also gone through the record.

6. A perusal of all the proceedings conducted by the learned trial Court before passing the ex parte decree against the appellants, clearly indicates that on 17-6-2004 the learned Judge Banking Court-III, Multan issued on a stereotyped order-sheet, without mentioning the service of the appellant through other modes as prescribed in section 9(5) of the said Ordinance i,e, service through bailiff,. Process Server, courier as well as registered post acknowledgment due. We are therefore, satisfied that before passing the impugned ex parte decree all the modes prescribed under the abovementioned provision of law were not complied with and ex parte decree was passed either without notice to the appellants or without making any genuine effort for effecting service on the appellants as prescribed in the said Ordinance, thus the ex parte decree was passed in violation of principles of natural justice as well as mandatory provisions of section 9(5). Of Financial Institutions (Recovery of Finances) Ordinance, 2001, hence the said decree was a void document and liable to be set aside even without recording evidence. Therefore, the application filed by the appellants for setting aside ex parte decree could not have been dismissed on the ground that same was barred by law, as no limitation is prescribed for a void decree or document or order as held by the Honourable Supreme Court of Pakistan in PLD 2002 SC 101 and PLJ 2005 SC 709.

7. For what has been discussed above, this appeal succeeds, the order dated 18-6-2005 is set aside and the application filed by the appellants for setting aside ex parte decree is allowed, consequently the ex parte decree dated 23-8-2004 is set aside and appellants are allowed to make application for leave to appear and defend the suit within ten days from today i,e, 28-6- 2006.

8. At this stage we would also like to observe that instead of passing the order under his own writing the learned Judge Banking Court in almost all the recovery suits filed before them, uses stereotype pro forma for summoning the defendants for the first date and just fill the blank column, which is neither lawful nor can be appreciated with legal sanctity. Further the said pro forma does not contain all the modes for effecting service of the defendants as prescribed under section 9(5) of Financial Institutions (Recovery of Finances) Ordinance, 2001. We therefore, disapprove this practice and direct the learned Judges Banking Courts that they should record the order regarding summoning of the defendants, with their own handwriting and shall also ensure that service of the defendant is ordered through all the modes as prescribed in sect ion 9(5) of the above Ordinance because unless all the modes of service as prescribed in section 9(5) above are not adopted, no valid service can be deemed to have been effected on the defendants. We further direct that in terms of section 9(5) of the said Ordinance, the summons through bailiff or process server shall accompany a copy of the plaint. Further it is also mandatory requirement of said section that publication of proclamation should take place in newspapers with wide circulation within its territorial limits but we have notices that in almost all the cases proclamation is made either in unknown newspapers or in the newspapers with limited publication, therefore, we feel that said proclamation is also not only violative of the abovementioned provision of law but also amounts to keeping the defendant in ignorance about institution of the suit and ex parte decree passed on the basis of such type of proclamation cannot be graced with legal sanctity.