1984 PLP 71 (MLD)

Date of hearing: 27th February, 1984. By this appeal, the appellant Mst. Hurbai has impugned the order dated 18-3-1980 of the IVth Rent Controller, Karachi declining to set aside the ex parte order whereby the appellant was required to be ejected from the demised premises.

2. The brief facts giving rise to this appeal are: -- The appellant has been tenant of the respondent Waris Masood in respect of the disputed premises which is a residential house-cum-shop on Plot No.8/4, Firdous Colony, Karachi on monthly rent of Rs.65 since 1972. On 17-9-1975 the respondent instituted ejectment Case No.2228/74 seeking eviction of the appellant from the aforesaid premises on the ground of default in payment of rent from 1-6-1974 to 31-7-1974. The ejectment was vehemently opposed by the appellant who repudiated the allegations of non-payment of rent.

3. However, the ejectment application was dismissed by order dated 6-12-1977 owing to absence of the respondent and his counsel. Later on the same day the respondent appeared in the Court and moved an application for restoration of his dismissed application which was ultimately restored. However, the restoration was made ex parte in absence of the appellant who, according to the material available on record, could not be served by ordinary process and, therefore, substituted service was ordered against him and he was served through a notice published in the newspaper. Despite the said notice the appellant remained absent. Accordingly the Controller after considering the evidence adduced by the respondent in support of his case passed the ex parte order directing ejectment of the appellant from the demised premises.

4. The appellant's case is that she came to know about the ejectment order after she was served with the notice in the execution proceedings taken out by the respondent for her ejectment. Thereupon she moved an application for setting aside the ejectment order but her application was dismissed by the learned Rent Controller by the impugned order and hence she has filed the present appeal.

5. The learned counsel for the parties were heard a. great length and with their assistance relevant record was also perused. It would be noticed that while passing the impugned order the learned Rent Controller was influenced by the only consideration that the Sind Rented Premises Ordinance, 1979 (hereinafter referred as the Rent Ordinance) does not permit him to set aside or review the ex parte order passed by him. In this connection reference may be made to subsection (2) of section 19 of the Rent Ordinance which places her on the powers of the Rent Controller to set aside the ex parte order. The said subsection is couched in the following words: "Where on the day fixed in the notice for the respondent to file written reply, it is found that notice has been served but the respondent has failed to file his reply without any reasonable excuse the Controller may, proceed to make an ex parte order and after such order has been made the Controller shall have no power to rescind such order." The language used in the above subsection came up for consideration in the case of Syed Ahmed Ali v. Muhammad Yakoob 1983 C L C 1135 wherein the learned Single Judge held as follows: "I, however,- feel that the question whether the Controller has no power to recall an ex parte order passed against a tenant even when he is satisfied that the notice of the proceedings was not duly served on him, is not free from difficulty on the language of section 19(2) of the Sind Rented Premises Ordinance. It seems that the section contemplates the passing of ex parte order if it is found by the Controller that "the notice has been served, but the respondent has failed to file his reply." If, therefore, the Controller has the jurisdiction to go into the question of service even after the passing of the ex parte order under section 19(2). It will be appropriate for this Court to allow, in the first instance the Controller to examine the question." More or less same view was taken by the Supreme Court in the case Mashlakhuddin v. Syed Ali Haider 1982 S C M R

570. The Supreme Court interpreted, the aforesaid provision of law in the following words: "I find on a plain reading of this provision that in cases of this nature the Rent Controller have to keep two facts in mind and give a finding on the same. This subsection states that it should be found that the notice has been served and further that the default in filing of reply is without reasonable excuse. The use of the word "found" and the word "without any reasonable excuse" clearly mean and imply that the Rent Controller has to record a finding that a notice has been served and further that the default in making reply was without any reasonable excuse. Unless findings on these two facts are recorded, the Controller cannot give full effect to subsection (2) of section 19 of the Sind Rented Premises Ordinance." It emerges from the above authorities that even after passing of the ex parte order the Rent Controller can go into the question of service of notice and if he comes to the conclusion that there is no satisfactory proof that notice has been served on the applicant he will be within his power to set aside the ex parte order. On the point whether the' appellant was properly served with notice before ex parte order was passed the learned counsel has made reference to Sind Civil Court Rules, particularly rule 107 which inter alia provides that if the person sought to be served cannot be found, the serving officer shall obtain on the original process the endorsement by signature or thumb-impression of pt least one responsible person of the locality before affixing a copy of the process on the outer door of the same person. According to learned counsel for the appellant since the procedure contained in the above rule was not observed, order allowing substituted service was not called for and consequently the appellant could not be held to have been validly served with the notice before passing of the ex parte order. The above argument cannot, of course, be lightly ignored but in view of the authorities referred to above it would be initially for the learned Rent Controller to consider the question of service of process and come to the definite finding for the purpose of setting aside the ex parte order. There is no doubt that the learned Rent Controller has not considered this aspect of the case nor has he based his order on such reasoning. The impugned order passed by him shows that he did not go into the controversy as to service of process on the appellant before he passed the ex parte order. On the other hand, the learned counsel for the respondent has contended that appeal against the impugned order is not maintainable for the reason that it is not directed against the final order within the meaning of section 21 of the Rent Ordinance. The argument is obviously erroneous. In view of what has been stated in the foregoing paragraphs, it was within the right of the appellant to first approach the learned Rent Controller for setting aside the ex parte order which he obviously did. However, his application did not find favour with the learned Rent Controller, who dismissed the same by the impugned order. Thus, the impugned order became the final order in terms of section 21 of the Rent Ordinance. In view' of above the appeal was allowed by short order, dated 27-2-1984 for reasons to be recorded separately. Above are the reasons for the said order. As per short order the case was remanded to the learned Rent Controller with the direction to hear the same afresh from the stage where ex parts order, dated 29-4-1979 was passed by him, by giving reasonable opportunity to both the parties for leading evidence if any. The parties were directed by the same order to appear before the learned Rent Controller on 24-4-1984. M. A. K. Case remanded.