1986 (PLP)

‑‑‑S. 21‑‑Civil Procedure Code (V of 1908),

0. V., r.20 Affixing copy of summons in Court premises‑‑‑ Non‑compliance of‑‑Effect‑ Provisions of O.V., r. 20, C.P.C., being mandatory in nature must be complied with‑‑Copy of summons was not affixed in some conspicuous place in Court premises‑‑Service of summons, held, was not effected in accordance with law and could not, therefore, be good in circumstances. Muhammad Yaseen and another v. Mst. Akhtar Jehan 1983 CLC 3063 distinguished. Muhammad Samin Jan v. Messrs Ferozsons Laboratories Ltd., Nowshera and 2 others P L D 1972 Pesh. 133 rel. Khalid Habibullah for Appellant. Mian Mushtaq Ahmed for Respondent. Date of hearing: 20th April, 1985. The respondent landlady brought an application against the appellant in the Court of Controller seeking eviction of the appellant from the house bearing No. 10‑B, Rafa‑e‑Aam Society, Malir Halt, Karachi on the grounds of default in payment of rent, personal need and sub‑letting of the premises in question without her consent. The notice was issued for service on the appellant. The diary of the Court, dated 25‑3‑1981 shows that the notice not to the appellant was not received back. It was ordered that the fresh notice be issued. Notice for 12‑4‑1981 returned unserved. An application for substituted service was filed. Court allowed such application and after the publication of the notice in the newspaper the Controller held the service good on 28‑9‑1981.The appellant was .called absent and ex parte proceedings were started against him. An affidavit was filed by Mujtaba Hussain, husband of the applicant‑respondent. The learned Rent Controller accepted such statement and allowed the rent application. Hence the present appeal.

2. The order impugned in this appeal is, dated 25‑10‑1981 but the appeal has been filed on 23‑5‑1982 i.e. after about delay of seven months. The period for filing such appeal under section 21(1) of the Sind Rented Premises Ordinance, 1979 is 30 days, therefore, the appeal is time‑barred. The learned counsel for the appellant stated that the servicewas not affected upon the appellant and, therefore, the time would run from the date of knowledge. It is the case of the appellant that the respondent filed the execution application No. 4 of 1982 in the Court of Controller and the appellant received execution notice by registered post on 5‑5‑1982 at 2‑00 p.m. for appearance on 5‑5‑1982 in the Court and thus came to know for the first time about any legal proceedings pending against him in the Court. The record shows that the bailiff alongwith the son of the respondent went to serve the notice on the appellant on 1‑4‑1981. A young boy came out of the house and told that the appellant is not present but he did not disclose his name. Again on 4‑4‑1981 at about 6‑00 p.m., he alongwith the applicant's son reached at the given address. On pointing out by the applicant's son he knocked the door. A person came out from the house. The applicant's son told him that he was the opponent. On the pointation of the applicant's son he offered him a copy of the notice to which he refused to accept and sign and came in anger and used bad words. The bailiff further stated that he, therefore, pasted a copy of the notice on the outer door of the opponent's house which he removed from there and torn it. No one witness was available there. He did not know the opponent personally. He obtained such signature of the applicant's son on the original. The record further shows that on the address given in the application a registered letter was sent to the appellant but it was returned undelivered. It appears that attempts had been made on various dates to deliver the letter but it was not received by the appellant. The endorsement is not clear whether the appellant had refused to receive the letter or who had been approached for the delivery of this letter. It was the duty of the respondent to examine the postman in order to show that the appellant had refused to accept the notice. The publication has been made in an English daily. The appellant has stated that he is an illiterate man and this contention has not been refuted. It cannot be presumed that an illiterate semi‑illiterate man would read an English paper which is otherwise not of wide circulation. The publication has not been made in an Urdu daily so that the service may be held good. Under Order V, rule 10‑A notice through registered cover was sent but as the same remained undelivered no adverse inference can be drawn against the appellant either under the General Act or under rule 10‑A of Order V of C.P.C. The learned counsel for the appellant has referred to the ease of Muhammad Nasir v. Sadiq Muhammad, reported in 1982 C L C 856 which lays down that summons for material date not affixed at Court notice board or at outer door of premises in question, it was held that the service was not proper, and if the applicant is not served properly and as such he had no knowledge of the suit the period of limitation for setting aside such decree be computed from the date of knowledge. Under the Sind Civil Courts Rules, the Serving Officer shall serve all, the 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 if it appears to the Court that sufficient information cannot be given as to the identity and place of residence of the person on whom process is to be served the person aforesaid could not be identified after due diligence and inquiry, it may ask the party concerned to supply an identifier. The order of the Court has not been obtained by the process‑server before taking son of the applicant for the purpose of identification. The process‑server himself did not make any effort to identify the person. He has stated that he did not know the appellant but as the order of the Court had not been obtained, therefore, rule 105 of the Sind Civil Courts Rules has not been complied with as such in my opinion the service is not proper. The process‑server has also not obtained the signature or thumb‑impression of a respectable person of the locality identifying such person as required by rule

106. If a person refuses to sign the acknowledgement the serving officer before affixing a copy of the summons on the outer door of the house obtain on the original process the endorsement by signature or thumb impression of at least one respectable person of the locality as required by rule

107. This rule has also not been complied with, and it is stated by the bailiff that no respectable person was available. Similarly rule 109 has not been adhered to. There is also non‑compliance of Order V, rule 20 as the copy of the summons was not affixed in some conspicuous place in the Court house. The learned counsel for the respondent has referred to the case of Muhammad Yaseen and another v. Mst. Akhtar Jehan, reported in 1983 C L C 3063 but the facts are distinguishable and are not attracted in the present case. On the other hand, the case of Muhammad Samin Jan v. Messrs Ferozsons Laboratories Ltd.. Nowshera and 2 others reported in P L D 1972 Pesh. 133 supports the contention that provisions of Order V, rule 20 are mandatory in nature and must be complied with.

3. In these circumstances, I am of the opinion that the service on the appellant had not been done in accordance with law, therefore, the service cannot be held good. The learned Rent Controller did not apply his mind before passing the ex parte order against the appellant. The appellant has stated that he had come to know of the pending proceedings against him when a notice was served upon him through registered 'cover and, therefore, time would run from the date of knowledge.

4. The appeal is accepted. The order of eviction passed by the Rent Controller is set aside and he is directed to proceed with then case after obtaining written statement from the appellant. There will be no order as to costs. H.B.T. Appeal accepted.