Pakistan Case LawMessrs AL-BASIT TRADERS Versus The BANK OF PUNJAB GENERAL POWER OF ATTORNEY
This civil appeal is directed against the order passed by the Banking Court, whereby the appellants' application for setting aside ex parte proceedings and the subsequent ex parte judgment and decree was dismissed. The core legal question is whether the appellants were validly served in accordance with the law and whether sufficient cause was shown for their non-appearance and failure to file an application for leave to defend. The Lahore High Court held that the appellants were duly and personally served through the prescribed modes under the relevant statute and failed to rebut the service reports or substantiate their plea of displacement due to floods. The final order of the court is that the appeal, being devoid of any merit, is dismissed. The key principle laid down is that where defendants are duly served through all mandatory modes under the law and fail to appear or file an application for leave to defend, an ex parte decree passed after due scrutiny of the claim on merits cannot be set aside without disproving the factum of service through cogent evidence.
- Whether an ex parte judgment and decree can be set aside when defendants are duly served through all prescribed modes?
- Does failure to submit affidavits refuting the bailiff's service report render the plea of non-service untenable?
- Can a defendant challenge the sufficiency of service based on new CNIC addresses without disputing the correctness of the addresses given in the plaint?
ABID HUSSAIN CHATTHA, J.--- This Appeal is preferred under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the "Ordinance" ) against the impugned Order dated 04.03.2025 passed by Judge Banking Court, Dera Ghazi Khan, whereby, an application for setting aside ex parte proceedings as well as ex parte Judgment and Decree dated 23.08.2023 of the Appellants was dismissed.
2.Precisely, the Respondent-Bank instituted a suit for recovery against the Appellants. Appellant No. 1 is a partnership firm, whereas, Appellants Nos. 2 and 3 are the partners of the firm. The Appellants were summoned through all four modes of service as prescribed in Section 9(5) of the Ordinance i.e. through registered post, courier service, Bailiff / Process Server and publication of proclamation in daily newspapers. Appellant No. 3 was personally served, whereas, Appellant No. 2 was served through his real brother. Appellant No. 3 also received the summons on behalf of Appellant No. 1. However, despite service through all modes, neither the Appellants appeared before the Court nor filed any application for leave to defend the suit. Consequently, the Appellants were proceeded ex parte on.23.08.2023, whereafter, claim of the Respondent-Bank was scrutinized on its merits and eventually decreed. The contention raised by the Appellants in their application that they were not served as they had left their place of abode on account of flood was duly scrutinized by the Banking Court on the basis of available record along with another application for condonation of delay on the same grounds. It was concluded that the Appellants were served in accordance with the mandate of Section 9(5) of the Ordinance. Importantly, the reports made by the Bailiff of the Court on the back of summons reveal that he visited the Appellants on their given addresses on 03.08.2023. Appellant No. 3 personally received the summons, whereas, the real brother of Appellant No. 2 received the same on his behalf. No affidavits to refute the said facts were tendered on behalf of Appellant No. 3 and the real brother of Appellant No. 2. Appellant No.3 not only signed on the back of the summons as token of receiving the same but also affixed his thumb impression. The plea of the Appellants that the Respondent-Bank has not mentioned their addresses as per their new CNICs was also discarded by noting that the addresses written in the plaint were not disputed as incorrect and there is no evidence that the Appellants informed the Respondent-Bank regarding their new addresses, particularly, when they also did not submit copies of their old and new CNICs along with their application to strengthen their version.
3.Perusal of the impugned Order reveals that the Banking Court has exhaustively dealt with all aspects of the application on the basis of record to which no exception can be taken. Hence, we are constrained to hold that the impugned Order has been passed in consonance with law.
4.In view of the above, this Appeal, being devoid of any merit, is dismissed.
MQ/A-99/L Appeal dismissed.
Judges on this bench
- Asim Hafeez299 judgments
- Abid Hussain Chattha149 judgments