P L D 1995 Karachi 242 (PLP)

Short point involved in this appeal under section 21 of the Sindh Rented Premises Ordinance is whether the appellant was duly served with notice of ejectment application fled by the respondent and whether learned Controller was right in directing eviction of the appellant from the demised premises ex parte. Respondent filed an Eviction Application No.806 of 1993 against the appellant in respect of residential premises on the ground of personal bona fide requirement for the use of the respondent who was engaged to her cousin and her marriage was held up for want of accommodation. Case was initially . fixed for service of notice on 9‑1‑1994, 29‑1‑1994, 12‑2‑1994, 12‑3‑1994 but them service could not be effected on the appellant through the process‑server of the lower Court. On 12‑2‑1994 hearing was adjourned to 12‑3‑199`1 for which date notice was sent by registered post but neither the A.D. receipt nor the envelope covering the notice was returned to the Court. For the hearings fixed on ‑1‑1994 as well as 12‑5‑1994 notice was returned by the process‑server with endorsement that he visited the residence of the appellant twice on both occasions on different dates taut the latter was not available. On his last visit on 10‑5‑1994 Process Saver noticed that the flat was locked. In this view pt the matter learned Controller directed service of notice by way of pasting on the. outer door of the premises in presence of two witnesses for the hearing fixed on 16‑7‑1994. For this date of hearing, the process‑server reported that the appellant was not available at his residence, therefore, as directed by Controller he affixed the notice on the outer door of the flat in presence of two witnesses whose signatures were obtained on the notice and marked as `A' and SR' Learned Controller held the service good and summoned the Bailiff for his statement for 1‑8‑1994 and 1‑9‑3994 on which date he recorded the statement of Process‑Server Abdul Karim on oath who corroborated his report in respect of service by affixation in presence of two witnesses on 10‑7‑1994. Learned Controller being fully satisfied with his mode of service held service of notice good against the appellant and adjourned the hearing to 10‑10‑1994 for. filing written statement but none was filed on 10‑10‑1994 the case was adjourned on the request of ‑the respondent` to 18‑10‑1994 and fixed for filing written statement. On this date as the appellant did not turn‑up to file the written statement, learned Controller decided to proceed ex parte and adjourned the hearing to 30‑10‑1994 when respondent filed her affidavit‑in evidence ex parte which was accepted on the face of it and eviction application allowed vide order dated 10‑11‑1994. Since the appellant had not taken any part in the ejectment proceedings despite service and knowledge .pre‑admission notice was issued against the respondent whose mother Mst. Shaheen appeared in the Court and being unrepresented was voluntarily represented by Mr. lqbal Kazi. Mr. Amarnath, learned counsel appearing for the appellant has assailed the mode of service of notice on the appellant and contended that the service by way of affixation was neither proper nor warranted by law as the appellant was not keeping out of the way or avoiding to accept the service. He further contended that the service by affixation amounted to substituted service which could be resorted only when service of notice on appellant was not possible in the ordinary course. He further contended that the report of the process‑server showing absence of the appellant at his address did not indicate the presence of any witness of locality and in any case service by affucation was not affirmed on oath as required by Rule 108 of the Sindh Civil Court Rules. It may be observed that the Rent Controller had not resorted to substituted service as misunderstood by the learned counsel. Neither there was any prayer for substituted service nor does the record show that the Rent Controller had adopted this mode of service by substitution. Although the provision of C.P.C. regulating the service of notice of summons are not attracted to proceedings under the Rent Laws learned Controller finding that the appellant could not be served directly by process‑server and he had not responded to the notice sent by registered post though it in the fitness of thing. to serve the notice by way of pasting on the outer door of his residence which: was sufficient legal compliance with the provisions relating to service‑ of notice of a cause. It would appear that a notice had been sent by registered post A.D . on or about 19‑2‑1994 to appellant for the hearing fixed on 12‑3‑1994 which was not returned to the office of the Controller undelivered. In the circumstances there is a presumption of service of notice on the appellant by virtue of Article 129, Clause (e) of Qanun‑e‑Shahadat, 1984 as well as section 27 of the General Clauses Act: There is a presumption of correctness and regular performance in favour of judicial and official acts. Besides under the General Clauses Act service of any document by post shall be deemed to have been effected at the time at which the letter would be delivered in the ordinary could of post unless it is proved to be contrary. It may be observed that the notice by registered post was sent to the appellant at his address which under all probabilities is deemed to have been delivered, to him since it was not returned to the office of the Controller undelivered. Learned Controller had taker, precaution to satisfy himself by recording statement of process‑server on oath in proof of pasting of notice in presence of two witnesses and even thereafter adjourned, the hearing in order to enable the appellant to appear and contest the proceedings but it seems that he had been watching the proceedings as silent spectator and waiting for an order with the hope that he would be able to challenge it by way of appeal on the ground of absence of `service of notice. It is pertinent to point out that the appellant himself had filed Suit No.151h of 1993 against the respondent and another seeking a declaration and permanent injunction on the basis of eleven months lease agreement in his favour for a declaration of tenancy to his favour and injunction against the respondent from interfering with his lawful possession in any manner except under due process of law, This suit was contested by the respondent who had filed a parawise written statement within time and her advocate had filed numerous statements under his signature before the Civil Court; to the effect that a rent case for ejectment of the appellant had been filed as such the suit had been rendered infructuous. Learned counsel appearing for the respondent has filed a certified copy of one of such statements filed on 0‑10‑1994 but since Mr. Amarnath, learned counsel for the appellant made a statement at the Bar that the appellant had no notice of this statement, l sent for the R & Ps. of the suit to ascertain the actual position. From the R . Ps. of the suit it appears that for the first time such statement was filed before the civil Court do 22‑1?‑1993 which was repeated on 2‑1

14. On both the dates there is art order of notice which would amount to sufficient knowledge of ejectment proceedings as the Rent Case as well as Civil Suit were fixed on identical dates before same Judge. Lastly such statement was filed on 30‑10‑1994 stating that ex parte order had been passed on 18‑10‑1994 and affidavit in ex parte proof by the respondent had been filed on 30‑10‑1994. On this date as well advocate for appellant was in attendance and learned Senior Civil Judge accordingly' dismissed the suit on 1‑11‑1994. In these events appellants cannot be allowed to say that he had no notice of eviction proceedings. Be that as it may, there is no legal defect or infirmity in the matter of service by affixation against the appellant on the part of the learned Controller since he was not bound by intricacies and technicalities of the Code of Civil Procedure. Learned counsel for the appellant has cited Messrs Baltistan Boutique v. District Judge, Karachi and others 1987 CLC 428 and Mst. Azizan and another v. Mehr Din 1993 CLC 1187. The first case relates to the substituted service by way of pasting of notice under Order V, Rule 20, C.P.C. which is hardly attracted in the circumstances of this case while the second case also deals with substituted service of summons in a suit against a Pardahnashin lady. Since the point involved in this case also relates to substituted service, this case is of" no assistance to appellant. Similarly the case reported as Mst. Salima Khatoon v. Manzar Hussain 1989 CLC 691 is distinguishable on facts. Even the decision in F.RA. No.719 of 1980 (1982 SCMR 570) by Abdul Hayee Kureshi, J. (as he then was) which lays down that the Rent Controller is required to record a finding that a notice had been served and further that the default in making reply was without any reasonable cause before proceeding with an ejectment application ex parte is hardly of any consequence. In the present case, it would appear that the Rent Controller was fully satisfied with the mode of service and, he had recorded his satisfaction after examining the process‑server on oath. . As regards the applicability of the provisions of C.P.C. to rent proceeding there is an elaborate judgment of the Supreme Court of Pakistan in the case of Ayub Khan and another v. Fazal Haq and others PLD 1976 SC

422. In this case it was held that Rent Controller's order deciding case to proceed ex parte amounted to approval of. service effected on appellants. It was held than Order V, Rule 17, C.P.C. did not fetter decision of serving officer to effect service by affixation if conditions prescribed in rule were satisfied. Dealing with the discretion of the Controller regulating the procedure as regards service it was held that as the Rent Controller is not bound by the Civil Procedure Code, the question of procedure and especially the procedure for effecting service on defendant is within his exclusive discretion therefore, he would be entitled, in the exercise of his discretion to follow the equitable principles of the Civil Procedure Code. Similarly, he would be free not to follow the technical provisions of the Code. In view of authoritative pronouncement by the Supreme Court on point in issue, there is no merit in the contention raised on behalf of the appellant that he has been condemned unheard. Lastly it was submitted on behalf of the appellant that law favours adjudication on merits rather than technical knock‑out. There is no cavil with this proposition of law but a party' is required to be vigilant and diligent in the prosecution of his remedy under all circumstances. In case a party chooses to l remain away from the Court proceedings and to take advantage of his own negligence and in difference towards Court law would not come to his rescue. For the foregoing reasons, there is no substance in this appeal which is hereby dismissed in limine. Appellant is, however, allowed 30 days period to 11 hand over possession of the premises failing which writ of possession shall I issue without notice. H.B.T./P‑308/K Appeal dismissed.