1985 PLP 1085 (MLD)

Abdul Aziz Khan for Appellant. Ghulam Ali Khokhar for Respondent No.l. Nemo for Respondent No.2. Date of hearing: 27th May, 1985. This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 is directed against an ex parte ejectment order dated 7-8-1982, .passed by the Senior Civil Judge Controller 111, Karachi in Rent Case No. 869 of 1982.

2. The respondent Wali Muhammad filed the Rent Case No. 869 of 1982 for ejectment of the opponents from his building situated on Plot No.AK-7, 7S-19 (073), Mason Road, Baghdadi/Lyari Quarters, Karachi on the ground of default in payment of rent for 13 months from 1-1-1981 to 13-1-1982. He claimed that he had inherited the rented premises from his father late Tandail Abdu, who had let it out to the respondent Mat. Mehrunnisa. He alleged that Mst, Mehrunnisa had sublet the premises to Muhammad Yousuf, the opponent No.2 in the rent case and the appellant herein. Notice of the rent case is stated to have been served by way of substituted service as direct service of tile notice could not be effected on the opponents/ tenants. The rent case was not resisted and the learned controller passed impugned ex parte ejectment order dated 7-8-1982.

3. The appellant Muhammad Yousuf, who was opponent No.2 in the rent case became conscious of the ex parte order on 9-4-1983 when notice of Execution Application was pasted at the premises. He preferred this appeal on 8-5-1982.

4. The learned counsel for the appellant has urged at the outset that no notice of the rent case was served on the appellant and ex parte ejectment order was obtained fraudulently and therefore, the impugned order is liable to be set aside. He has next urged that the respondent Wald Muhammad, who filed the rent case, practised fraud on the learned Controller by suppressing the fact that he had earlier filed Rent Case No. 1443/81 on the same facts and grounds and his case was dismissed: According to him, second case which is under appeal could not be maintained. He has placed reliance on P L D 1984 Kar. 195 and 1985 CLC

540. On the other hand, the learned counsel for the respondent No. 1 (Wall Muhammad) has resisted the appeal and contended that all the legal' steps were adopted, in effecting service of notice of the rent case on the appellant and the co-opponent Mst. Mehrunnisa but notices could not be directly served upon them and the service of the notice was effected by publication in newspaper and pasting of the copies of the notices at the premises. He has further contended that the filing of the previous rent case did not stand in the way of the filing of another rent case.

5. Keeping the question of service of the notice of the rent case apart, it has been brought to light that the respondent Wali Muhammad had filed a similar Rent Case No. 1443/81 against the same persons, namely Mst. Mehrunnisa and Munammad Yousuf (the appellant) for their ejectment from the same premises on the same grounds of default in payment of rent , subletting and also on an additional ground of personal requirements. That rent case was dismissed by the learned Controller by an order dated 22-12-1981 wherein it was h,.-Id that the applicant therein, who is the respondent No.l herein, had failed to prove that he was owner/landlord of the rented premises. This order does not seem to have been challenged anywhere and, curiously, the second Rent Case No. 869/82 where from this appeal has arisen was filed on the same grounds and the fact of the filing of the previous case was not disclosed in the second case. Obviously, the second Rent Case No. 869/82 on the same facts and grounds could not be maintained and the impugned ejectment order seems to have been obtained fraudulently and is liable to be set aside. 6.???????? The learned counsel for the respondent Wali Muhammad had agitated the question of limitation in filing of the appeal and placed reliance on cases reported in P L D 1981 Kar. 76 and P L D 1982 S C

88. In view of the fact discussed above that the impugned order had been obtained fraudulently and behind the back of the appellant, the question of limitation was to operate from the day of the appellant became aware of the impugned order. It has been stated by the appellant I that he became aware of the ejectment order on 9-4-1983 when notice of the Execution Application was pasted at the. premises. The appeal was filed on 8-4-1983 i.e. within 30 days which is the period of limitation of filing of appeal. Accordingly, the appeal does not seem to be time barred.

7. For the reasons recorded above, the appeal is allowed and the impugned order of the Controller dated 7-8-1982 passed in the Rent Case No. 869/82 is set aside and the appellant is awarded costs of the appeal . M.Y.H.??????????? Appeal allowed.