MESSRS ALLIED BANK OF PAKISTAN LTD. vs MESSRS TAHIR TRADERS AND 8

ORDER

1. ' This is an application under section 5 of the Limitation Act filed on behalf of the defendants Nos. 5, 6 and 9 for condoning the delay in filing application under Order XXXVII, rule 3, C. P. C. The plaintiff is a Banking Company and has filed the suit for recovery of Rs, 33,11,625.59 under the provisions of Banking Companies (Recovery of Loans) Ordinance, 1979. The summons were issued by publication in newspaper, through the bailiff and registered post A. D. The defendants admit that the bailiff had served the summons on 4-1-1986 while the publication was made in Morning News on 29-11-1985. The defendants deny that summons issued by registered post A. D. Were served on them. There is nothing on record to show that the summons issued by registered post A. D. Were served on the defendants.

2. ' After service through the bailiff on 4-1-1986 these defendants filed application under Order XXXVII, rule 3, C.P.C. On 11-1-1986 the opening day of the Court after winter vacation. Alongwith this application the present application under secton 5 was also filed. It is stated that the defendants Nos. 5 and 6 are the partners of the defendant No, I while defendant No, 9 is its guarantor. The defendant No, 5 in his affidavit admits publication and service through the bailiff and has denied service by post. He has stated that defendant No, 6 who is his wife and defendant No, 9 his mother can sign in Gujrati and do not know English and Urdu. He himself cannot write and read but he can sign in English. On the basis of these facts it is stated that publication cannot be a proper and effective service.

3. ' Mr. Fazeel, the learned counsel for these defendants has contended that as the defendants are not aware of English nor they subscribe to Morning News, the publication cannot be treated as due service. In this regard reference has been made to AIR 1930 All. 721 and PLD 1975 A J & K 122. At the outset it may be stated that these two authorities interpret the provisions of C. P. C. Which provide for publication of the summons under Order V, rule 20, C. P. C. In the circumstances mentioned therein. In the present case the mode of service of summons as provide by rule 8 deviates from the modes provided by C. P. C. Unlike C. P. C. Rule 8 framed under the Ordinance provides that the reader shall on receipt of plaint immediately issue summons to the defendants simultaneously through the bailiff of the Court, by registered post acknowledgement due and by publication. It, therefore, seems that under rule 8 the Court ha to issue summons to the defendant simultaneously in three prescribed modes. In my view these three modes as required under law should be complied with. However, if there is any laxity and it is established that the summons was duly served on the defendant through the bailiff and he appeals then failure to issue summons by post or through publication will not vitiate the entire proceeding as in such circumstances it will amount to a technical defect. The object of issuing summons by three modes is to ensure due service on the defendant without delay or loss of time. Once summons is served through the bailiff and the defendant appears he cannot complain that he was not aware of the proceedings in the suit.

4. However, if the defendant choses not to appear, then ex parte proceedings can be drawn A against him after issuing summons by post and through publication. Mere publication of summons without effecting service or attempting to serve through bailiff and by registered post A. D. May not itself be a proper and due service as rule 8 merely provides modes of issuing summons. The Ordinance and Rules are silent about the effect of service by publication. It has, therefore, to be considered whether mere publication is sufficient to treat it due and proper service. Section 3 of the Ordinance provide that its provisions are in addition to and unless otherwise expressly provided not in derogation of any other law for the time being in force. It is clear in conflict with it or applicability of the provisions of C. P. C. Have bee that the Ordinance will override the provisions of C. P. C. If they are expressly excluded. As I do not see any conflict in Order V, rule 20, C. P. C. And rule 8 of the Ordinance, the equitable principles of C. P. C. Should be applied. In my view mere publication of summons under rule 8 will not be a proper service unless it is established that the defendant is avoiding service of summons issued through the bailiff and registered post or their whereabouts are not known.

5. ' Now coming to the present case it seems that the three modes were adopted but according to these defendants the notice was not served by registered post and it was served through the bailiff on 4-1-1986. When the summons is issued in three modes it is not possible that all the three summons may be served on the same day and it is likely that they may be served on different dates. The question may arise from which date the period of limitation should be computed for filing application under Order XXXVII, rule 3, C. P. C. If there are more than one date of service of summons then from amongst the dates of service of summons by post, by publication or through the bailiff whichever is later, should be taken to be the date from which the period of limitation should be computed. In the present case publication was made on 29th November, 1985 the bailiff served the summons on 4-1-1986 and application under Order XXXVII, rule 3 was filed on 11-1-1986.

6. On the principle enunciated above the period of limitation for filing the application should be computed from 4-1-1986 and therefore it was not beyond the period prescribed by Article 159. In fact this application under section 5 of the Limitation Act seems to have been made by way abundant caution. It is disposed accordingly and the application under Order XXXVII, rule 3 should be fixed for hearing on 20-4-1986.