1995 PLP 825 (MLD)

Niazy A. Khaliq for Appellant. Nemo for Respondents (absent). Date of hearing: 21st December, 1993. This appeal has been filed challenging the orders passed by the 1st Senior Civil Judge/Rent Controller, Karachi (East) in Execution Application No.45 of 1989 filed in Rent Case No.2156 of 1985. Briefly the facts are that the present appellant had fled an application under section 11 of the Sindh Rented Premises Ordinance, 1979 for restoration of amenities (Gas and Electric supply). The notice of the application was sent to the respondent but he could not be served. Ultimately, on 17‑5‑1986 the Bailiff reported that he had served the notice on one Aamir the grandson of the respondent. Thereafter, someone had been appearing in the Court and giving applications signed in the name of the Opponent to the affect that the rent case may be dismissed. Again on 5‑8‑1986 the Advocate for the present appellant had filed an application before the Rent Controller wherein it was alleged that the said applications purporting to have been filed by the Opponent are in fact submitted by someone else and not the opponent himself. No order was passed by the Rent Controller on this application but subsequently the affidavit‑in‑evidence was taken from the appellant and the rent case was allowed ex parte, directing the restoration of the above said amenities. Subsequently the appellant filed the Execution Application and at that stage an application under section 12(2), C.P.C. was moved on behalf of the respondent to the effect that the earlier order obtained in the rent case was by way of fraud and misrepresentation which be set aside. The learned Rent Controller after hearing the arguments passed the impugned order. Being aggrieved the appellant has preferred this appeal. I have heard Mr. Niazy A. Khaliq, the learned counsel for the appellant while none is present for the respondent. The basic question that requires consideration in the matter is as to whether the respondent was served in the rent case. The record shows that the Bailiff had reported on 17‑5‑1986 that he had served the notice on one Aamir the grandson of the respondent as the respondent was not available. This service of notice also is not witnessed by any person of the locality. Thereafter, some body appears and moved applications purporting to have signed by the said Kaley Khan but it was not ascertained as to whether Kaley Khan had given these applications. The record further shows that on 5‑8‑1986 the Advocate for the present appellant had also given the application to the effect that the person appearing in the Court is not Kaley Khan. These circumstances clearly show that there is no evidence of service of notice on respondent Kaley Khan and as such no order to proceed ex parte could have been passed in the case. Accordingly the very order dated 18‑10‑1986 allowing the rent case under section 11 of the Ordinance is not in accordance with law and had to be struck down. Consequently, the impugned order which has been passed under section 12(2), C.P.C. is maintained. However, it is observed that there is no fraud played on the Court on the part of the present appellant who had himself made an application in the Court of Rent Controller to the effect that the person appearing as respondent is a fictitious person. With these observations, this appeal is dismissed with no order as to costs. The parties will appear in the Court of Rent Controller on 20th January, 1994 at 11‑00 a.m. H.B.T./F‑235/K Appeal dismissed.