1988 PLP 105 (MLD)

G.M. Saleem for Appellant. Date of hearing: 20th January, 1988. This appeal came up before me for hearing on 16‑10‑1987. On that day, too, as on today, the respondent and his counsel remained be absent, I am, therefore, constrained to hear this appeal in the absence of the respondent.

2. Mr. G.M. Saleem learned counsel for the appellant submitted that the notice of the Rent Case No. 2905/85, out of which this appeal, arises, was not served through bailiff on the appellant as well as by registered post. The appellant has however been served by publication of which he had no knowledge. It was further submitted that the service of notice by Registered Post A/D as required under Rule 10‑A of Order 5 of C.P.C. was also not effected as the same was returned by the Postman for inaccuracy of address as is apparant from his endorsement. It is further submitted by him that the service by newspaper was premature and unwarranted in the said circumstances, and in the circumstances, cannot be said to be a good service in law.

3. I have gone through the application moved by the respondent's counsel for substituted service by publication. In the affidavit of the attorney of the respondent accompanying the said application under Order 5, Rule 20, C.P.C it was stated in para 5 that "the opponent could not be served in ordinary way, hence the accompanying application is made for publication of notice m the newspaper". It seems that due service of notice by bailiff as well as by registered post, was not made on the appellant. The learned VI Rent Controller, therefore, granted the said application for substituted service by publication.

4. It is significant to note, as submitted by Mr. Saleem, that the appellant is a tenant in respect of hotel premises situated at Liaquatabad in the building on the ground floor, and the respondent/landlord is residing on the upper floor. The A notice appears to have been issued on the residential address of the appellant and not on the business premises which was locked, which is not admitted before me by the learned counsel and his client, at best, the order for the pasting of the notice at the hotel premises should have been obtained by the respondent. It also noticeable that only once notice by Registered Post A/D was issued but the same was returned for inaccurate address. It also appears that the notice, by of substituted service, was not affixed on the Notice Board of the Court about which the case diary is completely silent. The learned counsel for the appellant also submitted that the respondent has been making attempts to evict the appellant by hook or crook. He, therefore, was compelled to file a Civil Suit No. 2298 of 1985 against the respondent which was decreed by order dated 10‑9‑198 passed by the learned Civil Judge, Karachi. (Copy placed on record of this Court page 31) on the statement of the counsel for the respondent that he will not disposses the plaintiff without due course of law.

5. I, therefore, remand the Rent Case No. 2905/85 to the learned VI Senior Civil Judge (West) Karachi to decide the case on merits,

6. The impugned order is, therefore, set aside and the appeal is accepted but, in the circumstances, there will be no order as to costs. M.Y.H./J‑43/K Appeal allowed.