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Before Tanzil-ur-Rehman, J
MESSRS UNION BANK OF THE MIDDLE
EAST LTD.-Plaintiff versus
MESSRS ZUBNA LTD. AND 3 OTHERS-Defendants
Suit No. 405 of 1986, decided on 12th January, 1987.
(a) Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)-
-- S. 3 -Banking Companies (Recovery of Loans) Rules, 1980, R. 8-Civil Procedure Code (V of 1908), O. V-Sind Chief Court Rules (O. S.), R. 15-Cumulative effect of S. 3, Ordinance, 1979 and R. 8, Rules, 1980 is that Civil Procedure Code and Sind Chief Court Rules (O. S.) continue to apply, in addition to these provisions --Provisions of R. 8 of Rules of 1980 provide for issue of summons only and do not make any provision for service thereof.
(b) Civil Procedure Code (V of 1908)--
O. V, R. 9-Banking Companies (Recovery of Loans) Rules, 1980, R. 8-Sind Chief Court Rules (O. S.), R. 9--Service of summons-- Scope and application of both provisions detailed--- In case of inconsistency between the provision of C. P. C. and Sind Chief Court Rules (O. S.), latter will prevail.
(c) Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)-
--S. 3 - Banking Companies (Recovery of Loans) Rules, 1980, R. 8-Civil Procedure Code (V of 1908), O. V - Sind Chief Court Rules (O. S.), R. 8-Service of summons -Relevant provisions of all four enactments differ with each other in certain respects.
A comparative study of the relevant provisions of Civil Procedure Code, Sind Chief Court Rules (O. S.) and Banking Companies (Recovery of Loans) Ordinance, 1979 and Rules of 1980 made thereunder reveals that they differ with each other in certain respects. The Civil Procedure Code provides for the issue of summons through bailiff and by registered post simultaneously, whereas the provisions of the Sind Chief Court Rules provide for the issue of summons through bailiff only. The Banking Companies (Recovery of Loans) Rules, on the other hand provide for the issue of summons not only through bailiff, by registered post but by publication also, and all the modes are to be adopted simultaneously. As provided in the C. P. C., if the defendant on summons through bailiff refuses to sign the acknowledgement or has not been found after using all due and reasonable diligence, the serving officer shall affix a copy of summons on the outer door of the house of the defendant in which he ordinarily resides or carries on his business, and shall then return the original to the Court with a report thereon or annexed thereto, stating that be has so affixed the copy. In such a case, the Court shall, if the return of the summons, as aforesaid, has not been verified by the affidavit of the serving officer and may, if it has been so verified, examine the serving officer on oath, and may make such further inquiry in the matter as it thinks fit, and shall either declare that the summons has been duly served or order such service, as it thinks fit. On the other hand, the Sind Chief Court Rules provide that if a process is affixed to the outer door of the house in the absence of the person to be served, the serving officer shall make an affidavit to that effect and return the summons. It is further provided that if the summons to the defendant is affixed on the outer door of house, the serving officer shall affix therewith a notice that the person who was served upon may make an application to the Court, and obtain copy of the plaint and shall also state in the return that he has done so. As to the sufficiency of service of process in all cases in which it has been returned and in which the appearance has not been entered on a date appointed therefor in such process by or on behalf of the persons against whom it was issued, the Registrar in all the cases shall hold an inquiry. If the service is not effected on the defendant in ordinary course, the substituted service as provided in Civil Procedure Code, may be ordered by the Court by ordering the summons to be served by affixing a copy thereof in some conspicuous places in court-house, and also upon some conspicuous place in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. Such other manner may include by publication in a newspaper, and the service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.
(d) Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)-
-- S. 3 - Banking Companies (Recovery of Loans) Rules, 1980, R. 8-Civil Procedure Code (V of 1908), O. V-Sind Chief Court Rules (O. S.), R. 8-Service of summons-Insistence for service upon defendants by registered post also, notwithstanding the fact that defendants were already served by publication and also through bailiff, held, would not be in consonance with the policy of Banking Companies (Recovery of Loans) Ordinance, 1979 and Rules there under-Provisions relating to service must be construed liberally so as to achieve object of statute which was remedial.
Messrs Allied Bank of Pakistan Ltd. v. Messrs Tahir Traders and 8 others P L D 1986 Kar. 369 ; Craies on Statute Law ; Crawford on Statutory Construction ; United Bank Ltd. v. Nishat Chemical Industries Ltd. and 6 others 1986 C L C 1985 ; United Bank Ltd. v. Fair/ex Textiles Limited and others Suit No. 671 of 1984 ; Dubai Bank Limited v. Sind Commodity Centre and others Suit No. 595 of 1985 and Habib Bank Ltd. v. Cargo Despatch and others Suit No. 824 of 1984 ref.
(e) Interpretation of statute
Remedial Statute-Definition.
Craies on Statute Law, 7th Edn. p. 60 and Crawford on Statutory Construction, 1940, p. 105 ref.
(f ) Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)-
S. 4(3)-Banking Companies (Recovery of Loans) Rules, 1980, R. 8-Words "in any of the undermentioned modes"-Connota tion.-[Words and phrares].
The words "in any of the undermentioned modes" as stated in subsection (3) of section 4 which provided for securing and repayment of the loans, and by providing under rule 8 of the Rules the immediate issue of summons and notices to the defendant simultaneously through the bailiff of the Court, by Registered Post A/D. and by publication, the intention of the Legislature, as one can easily read, is the most expeditious service, by whatever mode, it is possible. The issue of summons and notices by the three modes simultaneously is to achieve the purpose of the Ordinance, as soon as possible, without wasting time on first issuing the summons and notices by bailiff and by Registered Post and, if not served, then by publication, as provided in C. P. C.
(g) Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)-
-- Ss. 4(3) & 3-Banking Companies (Recovery of Loans) Rules, 1980, R. 8 -Service of summons by all the three modes, or by any two or any one of them.
The proposition that it requires service by all the three modes is to be rejected simply because it cannot be the object of a remedial statute, such as the Banking Companies (Recovery of Loans) Ordinance, as it will create more difficulties than pre-existing, in the service of summons on the defendants. In fact, it will be contrary to the very object of the Ordinance for which it was promulgated or rule )s was framed. Does it, then, require service by two modes There seems to be nothing to support the answer to this proposition in the affirmative. There remains now the third alternative i. e. the service by anyone of the three mode. The acceptance of this construction is more apt to the occasion inasmuch as it is in more accord with the object of the Ordinance. It also finds its support from section 4, which though in a different situation, provides that notice be served by the Banking Company on the borrower in any of the modes, namely by being given or tendered to him or sent by registered post, or affixed on a conspicuous part of his last address known to the Banking Company or publication in a newspaper. 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 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 defendants. 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.
(h) Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)-
--- Ss. 3 & 4(3)--Banking Companies (Recovery of Loans) Rules, 1980, R. 8-Civil Procedure Code (V of 1908), O. XXXVII, R. 1 Service of summon-Service by publication of the summons in a suit under O. XXXVII, R. 1, C. P. C. and particularly in a suit under Ordinance, 1979 is proper and valid, if the summon has been published in proper form requiring defendant to make application for leave to appear and defend suit within 10 days -Service by publication cannot be made dependent on showing by plaintiff that the defendant was avoiding service in ordinary course--Service by publication stands on its own footing and is in the same category as service through bailiff and by registered post-[Messrs Allied Bank of Pakistan Ltd. v. Messrs Tahir Traders and 8 others P L D 1986 Kar. 369 ; United Bank Ltd. v. Nishat Chemical Industries Ltd. and 6 others 1986 C L C 1985 and Habib Bank Ltd. v. Cargo Despatch and others Suit No. 824 of 1984 dissented from].
United Bank Ltd. v. Fair/ex Textiles Limited and others Suit No. 671 of 1984 fol.
Messrs Allied Bank of Pakistan Ltd. v. Messrs Tahir Traders and 8 others P L D 1986 Kar. 369 ; United Bank Ltd. v. Nishat Chemical Industries Ltd. and 6 others 1986 C L C 1985 and Habib Bank Ltd. v. Cargo Despatch and others Suit No. 824 of 1984 dissented from.
(i) Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)-
--- Ss. 3 & 4(3)--Banking Companies (Recovery of Loans) Rules, 1980, R. 8--Service of summons--Conflict of decisions on point of service of summons and notice on the defendants-Advisability of amendment in the Ordinance or Rules thereunder felt by the Court.
Iqbal Haider for Plaintiff.
Nemo for Defendants.
S. A. Sarwana, Vice-President, Sind High Court Association on his request.
Date of hearing : 23rd December, 1986.
This is an application under Order V, rules 17 and 20 and section 151, C. P. C. read with rule 15 of the Sind Chief Court Rules (O. S.) and rule 8 (inadvertently written as section) of the Banking Companies (Recovery of Loans) Rules, 1980 to set aside the order, dated 26th November, 1986 of the learned Additional Registrar and to hold service good on the defendants on the basis of the publication of summons in daily Morning News on 14th August, 1986 and report of the bailiffs, dated 3rd September, 1986 and 11th November, 1986, and that the suit be ordered to proceed further in accordance with law.
2. The facts giving rise to this application are that the plaintiff filed the above suit on 29th May, 1986, under Banking Companies (Recovery of Loans) Ordinance, 1979 for the recovery of Rs. 3,414,357.96 against defendant No. 1, a private limited company, as principal borrower, and the other three defendants, who are inter-related to each other, as guarantors, all residents of A-33, K. D. A. Scheme No. 1, Karachi and carrying on business in the name and style of Zubna Limited (defendant No. 1) DC-2 Block 8, Kehkashan Clifton, Karachi. On 5th August, 1986 the summons in the suit were ordered to be issued through bailiff, by registered post A. D. and publication for 3rd September, 1986. The summons was duly published in the daily Morning News, Karachi of 14th August, 1986. As regards summons through bailiff, Muhammad Rashid, Bailiff, on 11th August, 1986 went to defendant No. 1 on the given address but on making enquiries there he came to know that the office of defendant No. 1 was closed for a long time. On 12-8-1986 he went to the residential address of the defendants and enquired about defendants Nos. 2, 3 and 4. On ringing the bell by him a maid-servant came out and informed him that the said defendants were in the house. He asked her to tell the said defendants to come out. The maid-servant went back and after some time defendant No. 2 came out to the bailiff who handed over the summons and copy of the plaint etc. to him. The defendant after reading the plaint and other papers asked him to wait for a while so that he might talk to his counsel on phone. The bailiff then asked him about defendants Nos. 3 and 4 who were told to be present in the house, but after talking to their Counsel will receive the papers. Defendant No, 2 then went back inside the house and after some time came out, saying that they will not receive these summons ; their lawyer will himself look into the matter. The bailiff requested them to accept the summons as they were in their names, but defendant No. 2 flatly refused to accept the summons and said that other defendants Nos. 3 and 4 will also not receive the summons without his permission. He further threatened the bailiff that in case he again came to his bungalow it will not be good for him. It was stated in the report that the bailiff thereupon pasted the summons of defendants Nos. 2, 3 and 4 . on the outer door of the said bungalow with a note that no other person was present there to be a witness. As regards summons by post the same was returned with a note that the office was closed. On 3-9-1986 the summons were again ordered to be issued through bailiff and by registered post A. D. for 5-10-1986. On 5-10-1986, Abdul Sattar, bailiff sub mitted his report that on 18-9-1986 and 25-9-1986 he went to defendants Nos. 1 to 4 on their addresses but he found that the office of defendant No. 1 was closed, and about defendants Nos 2 to 4 he was informed that they had gone to Lahore On 1-10-1986 he again went alongwith the plaintiffs' representative, but the office of defendant No. 1 was again found closed and that defendants Nos. 2 to 4 had not returned from Lahore. He, therefore, returned the summons unserved. The report was also signed by the plaintiffs' representative. The Postal Acknowledgement Card did not return. On 8-10-1986 the plaintiff's filed an application under Order V, rule 20, C. P. C., which was granted by the learned Additional Registrar and the summons were ordered to be issued through bailiff with a direction to affix the summons on the outer door of the places mentioned in the plaint and by registered post A. D. for 12-11-1986. The bailiff, Abdul Sattar submitted his report dated 11-11-1986, stating that on 30-10-1986 he went alongwith the plaintiffs' representative, Ahmad Saeed and his Advocate's clerk, Malik Ajjaz to the addresses of defendants Nos: I and 2 to 4. A maid-servant by name Mrs. Veera came out of the house of defendants Nos.- 2 to 4 and told that defendants Nos. 2 to 4 had gone to Lahore. He, thereupon, affixed the copies of the summons to defendants Nos. 2 to 4 on the outer door of the house. The occupant of the adjoining bungalow refused to be a witness. However, the representative and his advocate's clerk signed the report. It was further stated that the copy of the summons was also affixed on the office address of defendant No. 1, the shopkeeper on the ground floor refused to be a witness. Again, on 12th November, 1986 the summons were ordered by the learned Additional Registrar to be issued through registered post A. D. only for 26-11-1986 as the A. D. to the earlier registered post bad returned with the remarks that the office and house of the defendants were found locked. The summons through registered post A. D. issued for 26-11-1986 returned undelivered, On 26-11-1986 the learned Additional Registrar again ordered to issue summons through registered A. D. for 23-12-1986. The summons were, however, not issued as the plaintiffs' counsel refused to pay costs and challenged the said order dated 26-11-1986 through C. M. A. No. 6610/1986 which is now placed before me for orders alongwith office report dated 18-12-1986 by the Office Superintendent O. S. II.
3. Mr. Iqbal Haider submitted that the rule 8 of the Banking Companies (Recovery of Loans) Rules, 1980 requires the issue of summons and notice to the defendant through the bailiff of the Court, by registered post A. D. and by publication simultaneously which has been fully satisfied. Moreover, on his application, under Order V, rule 20, C. P. C. the service has been effected on all the defendants by affixation of the summons/notice on the outer door of the premises. The defendants are, therefore, duly served. There was, thus, no justification for ordering the issuance of fresh summons to the defendants through registered post A. D. by the learned Additional Registrar (O. S.) on 26-I1-1986. Reliance was placed by him on the case of Messrs Allied Bank of Pakistan Ltd. v. Messrs Tahir Traders and 8 others (P L D 1986 Kar. 369).
4. Mr. S. A. Sarwana submitted that the Banking Companies (Recovery of Loans) Ordinance being a remedial statute should be interpreted liberally so as to achieve the purpose for which it has been made. Reference was made by him to a passage from Craies on Statute Law, and Statutory Construction of Crawford. He also referred to a number of provisions of the Civil Procedure Code and the Sind Chief Court Rules (O. S.) as to the service of summons in an ordinary case and a suit under summary chapter. A decision reported as United Bank Ltd. v. Ni4hat Chemical Industries Ltd. and 6 others (1986 C L C 1985) was also cited by him. But, first of all, let me refer to the relevant provisions of the Banking Companies (Recovery of Loans) Ordinance, 1979 (hereinafter called "the Ordinance") and the rules made thereunder relating to the service of summons.
5. Section 3 of the Ordinance provides that the provisions of this Ordinance shall be in addition to and, save as hereinafter expressly provided, not in derogation of any other law for the time being in force. Rule 8 of the Banking Companies (Recovery of Loans) Rules, 1980 provides that the Reader shall, on receipt of a plaint, order immediate issue of summons and notices to the defendant simultaneously through the Bailiff of the Court, by registered- post acknowledgement due and by publication. A The cumulative-effect of these two provisions seems to be that the Civil Procedure Code and the Sind Chief Court Rules (O. S.) continue to apply, in addition to the above provisions. Rule 8 provides for the issue of summons only. It does not make any provision for service thereof.
6. As regards provisions of C. P. C., Order V, rule 9, C. P. C. relating to the service of summons provides that where the defendant resides within the jurisdiction of the Court in which the suit is instituted, the summons shall, ordinarily be delivered or sent to the proper officer to B be served by him or one of his subordinates, and rule 10 provides that it shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints in this behalf, and sealed with the seal of the Court. The law as it stood till the enforcement of Ordinance XII of 1972, provided service of summons through Bailiff, whereas by the said Ordinance rule 10-A was added whereby it was provided that simultaneously with the issue of summons under rule 9, there shall be sent, unless otherwise ordered by the Court, to the defendant by registered post, acknowledgement due, another copy of the summons signed and sealed in the manner provided in rule 10. Rule 17 inter alia, provides, that where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed. Rule 19 provides that where the summons is returned under rule 17 the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer and may, if it has been so verified, examine the serving officer on oath, or cause him to be examined by another Court, touching the proceedings, and may make such further inquiry in the matter as it thinks fit ; and shall either declare that the summons has been duly served or order such service as it thinks fit. Rule 20 provides for substituted service that where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. Sub-rule (2) of rule 20 provides that service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.
7. In so far as issuance and service of summons in a suit filed in the, High Court, on its original side, is concerned, it is regulated by the Sindl Chief Court Rules (O. S). Rule 7 of the Sind Chief Court. Rules provides that the rules contained in the First Schedule to the Code shall, so far as they are inconsistent with or contrary to these rules, be deemed to have C been thereby altered or superseded. So, in case there is inconsistency between the provisions of Civil Procedure Code and Sind Chief Court Rules, the latter will prevail. Chapter 6 of the Sind Chief Court Rule (O S.) relates to the processes. Rules 139 to 146 thereof are relevant. Rule 139 dealing with the issue of the process provides that the serving officer shall serve all processes entrusted to him without the aid of the party at whose instance the process is issued and after due inquiry as to the identity of the person on whom, or the house or property where, the same is to be served : provided that in case house or property or a place of residence of the person aforesaid could not be identified after the diligence and inquiry he may ask the party concerned to supply an identifier. Rule 140 provides for the endorsement of the identifier on the original process for the same is served. Rule 141 provides that where a person to be served refuses to sign the acknowledgement or cannot be found, the serving officer shall, whenever possible, before affixing a copy of the summons on the outer door of the house or such person obtain on the original process the endorsement by signature or thumb-impression of at least one respectable person of the locality in support of such fact. Rule 144 provides that if a summons to the defendant affixed to the outer door of a house, the serving officer shall affix therewith a notice that the person so served can, upon application to the Curt, obtain a copy of the plaint. Rule 145 provides that the Registrar (O. S.) shall hold an inquiry as to the sufficiency of service of process in all cases in which it has been returned and in which an appearance has not been entered on the day appointed therefor in such process by or on behalf of the person or persons against whom it has been issued. It is also provided in this rule that affidavits and further affidavits may be received by the, Registrar or evidence taken viva voce at such inquiry.
8. A comparative study of the relevant provisions of Civil Procedure Code, Sind Chief Court Rules (O. S.) and Banking Companies (Recovery of Loans) Ordinance, 1979 and rules of 1980 made thereunder reveals that they differ with each other in certain respects. The Civil Procedure Code provides for the issue of summons through bailiff and by registered post simultaneously, whereas the provisions of the Sind Chief Court Rules provide for the issue of a summons through bailiff only. The Banking Companies (Recovery of Loans) Rules, on the other hand provide for the issue of summons not only through bailiff, by registered post but by publication also, and all the modes are to be adopted simultaneously. A provided in the C. P. C., if the defendant on summons through bailiff refuses to sign the acknowledgement or has not been found after using all due and reasonable diligence, the serving officer shall affix a copy o summons on the outer door of the house of the defendant in which h ordinarily resides or carries on his business, and shall then return the original to the Court with a report thereon or annexed thereto, stating that he has so affixed the copy. In such a case, the Court shall if the return of the summons, as aforesaid, has not been verified by the affidavit of the serving officer, and may if it has been so verified, examine the serving officer on oath, and may make such further inquiry in the matter as it thinks fit, and shall either declare that the summons has been duly served or order such service, as it thinks fit. On the other hand, the Sind Chief Court Rules provide that if a process is affixed to the outer door of the house in the absence of the person to be served; the serving officer shall make an affidavit to that effect and return the summons. It is further provided that if the summons to the defendant i axed on the outer door of house, the serving officer shall affix therewith a notice that the person who was served upon may make an application to the Court, and obtain copy of the plaint and shall also state in the return that he has done so. As to the sufficiency of service of process in all cases in which it has been returned and in which the appearance has not been entered on a date appointed therefor in such process by or on behalf of the persons against whom it was issued, the Registrar in all the cases shall hold an inquiry. If the service is not effected on the defendant in ordinary course, the substituted service as provided in Civil Procedure Code, may be ordered by the Court by ordering the summons to be served by affixing a copy thereof in some conspicuous places in Court house, and also upon some conspicuous place in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. Such other manner may include by publication' in a newspaper, and the service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.
9. Now, let me refer to the two decisions cited at the Bar. The case cited by Mr. Iqbal Haider reported as Messrs Allied Bank of Pakistan Ltd. v. Messrs Tahir Traders and 8 others relates to a suit under the Banking Companies (Recovery of Loans) Ordinance, 1979 in which a learned Single Judge of this Court observed that :-
"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."
The other case, cited by Mr. Sarwana, reported as United Bank Ltd. v. Nishat Chemical Industries Ltd. and 6 others also relates to a suit under Banking Companies (Recovery of Loans) Ordinance, 1979 in which the same learned Single Judge of this Court re-affirming his views expressed in the earlier judgment, referred to above, further observed as under :-
"In view of rule 8 the Court should issue summons in all the three modes . . . . . . . .Where summons is served through the bailiff and the defendant does not appear, the Court should take ex parte proceedings after it has issued summons by registered post A. D. and publication in the newspaper. Likewise if the summons is served by registered post A. D. and the defendant does not appear ex parte proceeding should be taken only after the summons has been issued through bailiff and publication. The third situation may arise where the summons has been published in -a newspaper but the summonses issued through bailiff and by registered post A. D. have not been served or not issued at all. In such circumstances, mere publication of summons cannot be treated as proper and valid service . . . . ."
The learned Judge further observed :-
"In my view the summons published under rule 8 can be held to be due and proper service if it is established that the defendant is avoiding the service through bailiff and by post or his whereabouts are not known."
10. On my inquiry for any other order passed by any other learned Judge of this Court on the point at issue, the Branch concerned was able to produce three undermentioned unreported orders/judgments also. In United Bank Ltd. v. Fair/ex Textiles Limited and others Suit No. 671 of 1984, the same learned Single Judge of this Court by his order dated 2-2-1986 was pleased to observe that :--
". . .in a suit under Order XXXVII, C. P. C. if the summons published in the newspaper describes that claim in suit and is in the prescribed form requiring the defendant to seek leave to appear and defend the suit within ten days of service of summons and consequences of failure to do so, are also mentioned, then such publication, particularly in a suit under the Banking Companies (Recovery of Loans) Ordinance, 1979, shall be deemed to be a proper and valid service on the defendant."
11. In the case of Dubai Bank Limited v. Sind Commodity Centre and others (Suit No 595 of 1985) by order dated 12-1-1986 passed by another learned Single Judge of this Court it was observed that if the summons on other defendants have been served through publication and through Registered Post A. D., the office will fix the case for final disposal, perhaps, without waiting for the service of summons through bailiff. It was a case where some other defendants who were served by bailiff had put in their appearance.
12. In the case of Habib Bank Ltd. v. Cargo Despatch and others (Suit No. 824 of 1984) yet another learned Single Judge referring to rule 8 observed that :-
"This rule has been clearly framed with some object in view, i. e. to achieve expeditious disposal of cases. It is however noteworthy that the rule nowhere suggests that if service on the defendant is effected by one of the three modes, the same would be proper service. Such inference also cannot be possible if rule 8 is read alongwith Order XXXVII, rule 2, C. P. C., because according to the latter the summons to the defendant must be accompanied by a copy of the plaint which, as already pointed out, cannot be possible in case of service of notice by publication. However, the rule need not be construed with absolute rigidity because if the Court is satisfied that service of summons has been effected through bailiff or registered post and a copy of the plaint was sent alongwith the summons, the same might be treated as proper service to give a starting point to the period of limitation as contemplated by Article 159 of the Limitation Act since it would be in conformity with the provisions or Order XXXVII, rule 2, C. P. C. and section 7(2) of the Ordinance, 1979. But such cannot be the case with service by publication unless it is shown that the defendant was intentionally avoiding service or that for some reason summons cannot be served upon him in the ordinary manner."
The learned Judge was thus pleased to hold that since it has nowhere been alleged that :---
"Service on the defendant could not be effected in the ordinary manner, service of notice on him by publication was not a proper service."
13. Reverting to the instant case, in the office Diary dated 12-11-1986 it has been observed by the Additional Registrar that the defendants were out of station and so the bailiff affixed the process. The Additional Registrar, however, ordered the issue of summons to the defendants by Registered Post A. D. for 26-11-1986. This implies that the Additional Registrar was satisfied about the service of the summons through bailiff, as substituted service, on application made by the plaintiff. By ordering issuance of summons by Registered Post (only), the learned Additional Registrar, perhaps, seems to be holding a view that the service by all the three modes as provided in the Banking Companies (Recovery of Loans) Rules, 1980, was necessary, because the service by publication had already been effected vide his note dated 18-12-1986. To my mind, the insistence of the Additional Registrar for service upon defendants by Registered Post also, notwithstanding the fact that the defendants were already served by publication and also through bailiff, as observed earlier, does not seem to be in consonance with the policy of the Banking Companies (Recovery o E Loans) Ordinance, and the rules made thereunder. The Ordinance is a remedial statute. The underlying object of the said Ordinance, it seems, is to "expedite proceedings for recovery of the loans granted by the Banking Companies, and thus the provisions relating to service must be construed liberally so as to achieve the said object.
14. Craies on Statute Law, 7th Edition, page 60 read as under :-
"A Remedial Act is defined by Blackstone (1 Comm. 80) as one made to supply such defects and bridge such superfluities in the common law as arise, either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and un advised determinations of unlearned (and even learned Judges, or from any other cause whatever'. But this definition is too narrow, for the operation of Remedial Acts is not confined to the common law, but extends also to prior enactments. In earlier Acts the grievance is usually recited in the preamble, and the statute resembles in form a petition for redress of grievances, for which the existing law was insufficient (See 23 Hen. 8 c. 5, Commission of Sewers, preamble) and in many Acts the words for remedy whereof' immediately preceded the words of enactment. In modern public Acts preambles are rare and the nature 'of the grievance, if any, to be remedied is left to be gathered from the tenor of the long title and clauses."
At page 192, it is further stated :-
"There may, perhaps, be some obscurity in the words of the statute, but there is none in the title, and this being a remedial statute, we should construe it so as to give full effect to the intention of the Legislature."
In Statutory Construction by Crawford, 1940, page 105 it is stated as under :-
"Remedial acts are those enacted in order to improve and facilitate remedies already existing for the redress of wrongs or injuries as well as to correct defects, mistakes and omissions in a former law (Falls v. Key (Tex.) 278 S W 893. A remedial statute is one which confers a remedy, and a remedy is the means employed in enforcing a right or in redressing on injury. (Paulsen v. Reinecke, 181 La. 917, 160 So. 629, 97 A L R. 1184. Osgood v. Names, 191 Lwa 1227, 184 N W 331 ; M. H. Vestal Co. v. Robertson, 277 111, 425, 115 N E 629 ; Weston v. J. L. Roper Co. 160 N C 263, 75 S E 800). A subordinate division of remedial acts has been made into enabling and disabling enlarging and restraining statutes. Dwarris (Potter) on Statutes, page 55).
I may also refer to subsection (3) of section 4 of the Ordinance which provides that :-
"(3) Where, in the opinion of a Banking Company, a loan was, or has become or is discovered to be, unsecured or insufficiently secured, the borrower shall provide sufficient security thereof within one hundred and eighty days from the date of the notice served by the Banking Company on the borrower in any of the undermentioned modes, namely, by being :.-
(a) given or tendered to him, or
(b) sent by registered post to his last known address on the record of the Banking Company, or
(c) affixed on a conspicuous part of his last address known to the Banking Company, or
(d) published in a newspaper . . . . ."
The words "in any of the undermentioned modes" as stated in subsection (3) of section 4 which provided for securing and repayment of the loans, and by providing under rule 8 of the rules the immediate issue of summons and notices to the defendant simultaneously through the bailiff of the Court, by Registered Post A. D. and by publication, the intention of the G Legislature, as one can easily read, is the most expeditious service, by whatever mode, it is possible. The issue of summons and notices by the three modes simultaneously is to achieve the purpose of the Ordinance, as soon as possible, without wasting time on first issuing the summons and notices by bailiff and by Registered Post and, if not served, then by publication, as provided in C. P. C.
15. Thus, the ultimate question which arises in the case is what will in the reasonable construction of rule 8 Does it require the defendant to be served with the summons and notices by all the three modes or by any two or any one of them. The proposition that it requires service by all the three modes is to be rejected simply because it cannot be the object of a remedial statute, such as the present Ordinance, as it will create more difficulties than pre-existing, in the service of summons on the defendants. In fact, it will be contrary to the very object of the Ordinance for which, it was promulgated on rule 8 was framed. Does it, then, require service by two modes There seems to be nothing to support the answer to this proposition in the affirmative. There remains now the third alternative i. e. the service by anyone of the three modes. I think, the acceptance or this construction is more apt to the occasion inasmuch as it is in more accord with the object of the Ordinance. It also finds its support from, section 4 which, though in a different situation, provides that notice be; served by the Banking Company on the borrower in any of the modes,, namely by being given or tendered to him or sent by registered post, or affixed on a conspicuous part of his last address known to the Banking Company or publication in a newspaper. 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 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 maybe submitted later on, after the receipt of the copy of the plaint.
16. I, therefore, quite agree with the observations of the learned Single Judge of this Court, referred to above, in the unreported case of United Bank Ltd. v. Fairfax Textiles Ltd. and others that the service by publication of the summons in a suit under Order XXXVII, rule 1, C. P. C. and particularly in a suit under the Ordinance' is proper and valid, if the summons has been published in proper form requiring the defendant to make application for leave to appear and defend the suit within 10 days. But, with respect, I do not find myself in agreement with the view expressed in the several orders/judgment cited at the Bar viz. P L D 1986 Kar. 369 and 1986 C L C 1985, and the unreported order in the case of Habib Bank Ltd. v. Cargo Despatch and others that the service by mere publication in a suit under the Ordinance is not good, unless it is shown that the defendant was avoiding service through bailiff and by registered posts on his whereabouts were not known, perhaps, for the reason that the service by publication could only be ordered by the Court under Order V, rule 20, C. P. C., after it was satisfied that the defendant was avoiding service in ordinary course. The above orders/judgments, to my mind, overlook the legal position inasmuch as the incidence of service by publication has undergone a change, as per rule 8 of the Banking Companies (Recovery of Loans) Rules, 1980. The service by publication, therefore, cannot be made dependent on the showing by the plaintiff that the defendant was avoiding service in ordinary course. The service by publication stands on its own footing and is in the same category as service through bailiff and be registered post.
17. I may refer to an observation of Mr. Justice A. R. Cornelius, a former Chief Justice of Pakistan, from his learned and thought provoking paper read at the Third Commonwealth and Empire Law Conference at Sydney (Australia) on 27th August, 1965 (P L D 1965 Jour. 149) which,,, reads as under :--
"A major concern of present day thinkers on criminal law appears to be the safety of the criminal or rather the accused person, through the processes of justice . . . .A survey of the results of criminal proceedings in Pakistan leaves the impression that any further attention paid to such matters in my country would place accused persons at an advantage which in the eye of the public interest would be unconscionable and even somewhat dangerous."
The same, I think, is true to a defendant, to some extent, in a civil cause. The current trend also seems to be in favour of showing leniency to defendant is a civil action, but, let me say, it should not go to that extent that it may amount to give a long rope to a fugitive from law. Law's delays have become chronic which are of deep concern to every body. It is almost in every case and particularly in a civil cause that the defendant tries to delay the proceedings and to start with by avoiding service of summons and notices through bailiff and by post. It is true that the reputation of the process-servers in Indo-Pakistan Sub-Continent is not enviable, but at the same time there is a general tendency to avoid service of summons on the part of the persons required to be served. In fact, there seems to be dishonesty on both sides of the counter, that is, the process-server and the person to be served. It was, perhaps, for this reason that the Law Reforms Commission (1967-70) headed by late Justice Hamoodur Rahman, former Chief Justice of Pakistan, while recommending the simultaneous issue of summons by bailiff as well as by registered post observed at page 342 of the Report that "we are, therefore, of the view that process by post should be issued simultaneously with the usual process and the Court should proceed to act on whichever report shows effective service." It appears that as a result of the above recommendation rule 10-A in Order V, C. P. C. was added in 1972. There is always room for improvement. This again, perhaps, seems to be the reason that rule 8 made under the Ordinance has also provided for simultaneous issue of summons by publication as well, which implies that the Court, borrowing the words from the said Report, "should proceed to act on whichever mode shows effective service".
18. I will, therefore, accept the above application (which, in the circumstances of the case, can only be treated as an application under rule 15 of the Sind Chief Court Rules), and set aside the order dated 26-11-1986 of the learned Additional Registrar insisting the service on the defendants by Registered Post, notwithstanding the fact that the defendants were served by publication on 14-8-1986 as well as by affixation on 30-10-1986 under Order V, rule 20, C. P. C., as substituted service.
19. These are the reasons for my short order dated 23-12-1986 holding the service good on the defendants, and ordering for taking further proceedings in the matter according to law.
20. A copy of this order may be sent by the Registrar of this Court to the Secretary, Justice Division, Ministry of Parliamentary Affairs, Government of Pakistan, Islamabad, to consider the advisability of an amendment in the Banking Companies (Recovery of Loans) Ordinance, 1979 or the rules of 1980 made thereunder, so as to avoid conflict of decisions on the point of service of summons and notices on the defendant.
M.S. A./U-2,/K Application accepted.
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