1984 PLP 2463 (CLC)

(d) Sind Rented Premises Ordinance (XVII of 1979)‑‑ ‑‑‑Ss. 15, 21 8 22‑‑Civil Procedure Code (V of 1908 6

0. V, r.15‑‑Execution of ejectment order‑‑Tenant contending that ejectment application decided without hearing him but record showing that service of summons and notices was effected on tenant's brother in accordance with provisions of C.P.C. and his brother appearing in court and seeking adjournments on ground that tenant had gone abroad‑‑Brother of tenant not shown to have any interest adverse to tenant‑‑Rent Controller giving a reasonable opportunity to tenant to show cause against ejectment application and tenant was in knowledge of same‑‑Mere fact that Rent Controller did not make a formal order of proceeding ex parte against tenant, held, was an omission of no consequence‑‑Held, it will be a gross abuse of process of court, after an adverse finding against a litigant to permit him to turn round and toward entire proceedings on plea that he was not served‑‑Principle of estoppel by conduct actively attracted in circumstances.‑[Estoppel]. (b) Sind Rented Premises Ordinance (XVII of 1979)‑‑ ‑‑‑Ss. 15, 21 & 22‑‑Ejectment order‑‑Execution‑‑Appeal against ejectment barred by time‑‑Tenant unable to discharge his burden that summons/notices not duly served on him‑‑Order of ejectment passed by Rent Controller valid, in accordance with law and not likely to be set aside‑‑Execution proceedings based on such order, held, legal. Syed Muhammad v. Mazhar Ali Khan P L D 1981 Kar. 76 rel. The First Rent Appeal arises out of the impugned order of the learned XVth Senior Civil Judge & Rent Controller, Karachi, dated 9th June, 1983 in Execution Application No. 28 of 1983 under section 22 of the Sind Rented Premises Ordinance, 1979.

2. The brief facts of the case are that the respondent filed an application under section 15 of the Sind Rented Premises Ordinance, 1979, being Rent Case No. 2383 of 1982 in the learned Court of the XVth Senior Civil Judge & Rent Controller, Karachi, on the grounds of default and personal use. The learned Rent Controller passed usual order for notices on the appellant. The appellant was not in Karachi, and the same were duly served on his brother Azizullah Hassan on 12th October, 1982 and on 13th October, 1982 through the bailiff as well as by registered Post A.D. The said Azizullah Hassan appeared before the learned Rent Controller on 14th October, 1982 and moved an application for an adjournment on the ground that his brother, the appellant, has gone abroad. The learned Rent Controller adjourned the case at the request of the said Azizullah Hassan. The said Azizullah Hassan, thereafter, did not appear before the learned Rent Controller and no steps were taken by him, thereafter, even no written statement was filed as required by the provisions of section 19 of the Sind Rented Premises Ordinance, 1979. On 16th November 1982, an affidavit of evidence‑in‑ex parte proof was filed by the respondent. The learned Rent Controller by his impugned order dated 31st March, 1983 allowed the application and directed the appellant to hand‑over the physical possession of the premises to the respondent forthwith. The respondent filed an execution application being Execution Application No.28 of 1983 before the learned Rent Controller, who issued notice to the appellant and the case was adjourned for service of notice/summons on the appellant for 25th May, 1983. Instead of the appellant, the brother of the appellant, Azizullah Hassan, appeared and moved an application for adjournment on the ground that his brother would appear in the case. The learned Rent Controller adjourned the case to 9th June, 1983. On 9th June, 1983, he again moved an application for adjournment for three weeks. It seems that no orders were passed on this application. In any case, on 9th June, 1983, the learned Rent Controller passed the following order:‑ "Counsel for D.H. present. Opponent/J.D. called absent. On 8th June, 1983, one Azizullah who is said to be brother of J.D. has moved an application that the J.D. has not received the notice of this application as he is out of country. Moving of this application dated 8th June, 1983 means that J.D. is in knowledge of the pending of execution application against him. Service against J.D. cost. Hearing 20th July, 1983." The writ of possession was issued against the appellant, who engaged an advocate, and after obtaining necessary certified copies, he filed the present appeal on 7th July, 1983. The appellant, above‑named, being aggrieved by the impugned orders dated 31st March, 1983 and 9th June, 1983 of the learned Rent Controller, Karachi, has preferred this appeal on the grounds mentioned in the Memo. of Appeal.

3. Mr. Ameer Ahmad Khan, learned counsel for the appellant, has urged the following contentions. (i) That the service on the brother of the appellant is no service in the eye of law and the orders passed by the learned Rent Controller on 31st March, 1983 and 9th June, 1983 be set aside.

4. On the other hand, Mr.Mubarak Hussain Siddiqui, who appeared on the Court notice on behalf of the respondent, has urged that the appeal is hopelessly time‑barred. The appellant's brother appeared on 14th October, 1982, and on his request the case was adjourned and it was his duty to inform the appellant.

5. It was contended by the learned counsel for the appellant that the ejectment application was decided without hearing the appellant, and, therefore, the order of ejectment passed by the learned Rent Controller was not sustainable. He contended that. the appellant was not served in the ejectment application, and, therefore, the learned Rent Controller has erred in passing the ejectment order against him. It is not the appellant's case that his brother had any interest adverse to him. It is clear from the record that his brother appeared before the learned Rent Controller and sought adjournment on the ground that his brother had gone abroad. It is also clear from the record that service of summons were effected on his brother in accordance with the provisions of order V, r.15, C.P.C. being the adult male member.

6. On the other hand, Mr. Mubarak Hussain Siddiqui learned counsel for the respondent, urged that even during his stay abroad, his family resided in the house including his brother. He has urged that it can be legitimately presumed to be well informed of the litigation pending against him.

7. I am of the view that it will be a gross abuse of the process of court after an adverse finding against such a litigant to permit him to turn round and thwart the entire proceedings on the plea that he was not served. The Advocate for the appellant's contention is not bona fide and the principle of estoppel by conduct will actively be attracted.

8. It has already been held that the appellant was in the knowledge of ejectment application. The mere fact that the learned Rent Controller did not make a formal order proceeding ex parte against him is an omission of no consequence. The learned Rent Controller had given a reasonable opportunity to him to show cause against the ejectment application. In 8 this manner, the requirements of subsection (2) of section 19 of the Sind Rented Premises Ordinance, 1979, were fulfilled. The order of ejectment made in this case cannot, therefore be set aside on the ground that he was not allowed to show cause against the ejectment proceedings.

9. The learned counsel urged that in the body of the affidavit‑in‑ex parte proof shows persona service effected on the appellant. The learned Rent Controller at the time of passing the ejectment order, was apparently unaware of the previous order that service was effected on his brother, who appeared and the case was adjourned at his request, and no written statement was filed within the prescribed time.

10. The question of limitation has assumed importance in the instant! case as admittedly the First Rent Appeal has been filed much beyond the period of 30 days provided by section 21 of the Ordinance for filing appeals against 'e impugned orders of the learned Rent Controller, and a' Single Judge of'Lhis Court (Naimuddin, J.) in the case of Syed Muhammad v. Mazhar Ali Khah P L D 1981 Kar. 76 held that section 5 of the Limitation Act is not applicable to appeals filed under section 21 of the Ordinance., In view of this legal position, it was contended by Mr. Mubarak Hussain learned counsel for the respondent, that the present appeal is time‑barred.

11. Notices were sent to the appellant at his address through bailiff as well as by registered post A.D., but the report of the bailiff shows that notices were received by the male member of the appellant's family. The said male member i.e. the brother of the appellant, appeared and the case was adjourned at his request. This factual position could not be denied. In these circumstances, it is apparent that the appellant was aware of the pending of the ejectment proceedings.

12. In the above circumstances of the instant case where notices were sent on the address and were apparently received by the brother of the appellant, and there being no denial that such notices were not received, in my view, the impugned order of the learned Rent Controller granting the ejectment application is a valid order and is not likely to be set aside. The burden of proving that the summons/notices were not duly served on the opponent/appellant. The appellant has failed to discharge the burden. The notices were not only duly served on the male member of the family but he appeared in Court and sought adjournment which was granted by the learned Rent Controller. As such the appeal is hopelessly time‑barred. I am of the view, that the order granting the respondent's application 11.. dated 31st March, 1983 was passed in accordance with law and the execution proceedings based thereon are legal. I direct the office to send R 8 Ps1to to the learned Court of the Rent Controller and Senior Civil Judge Karachi. In the circumstances of the case, the parties shall bear their own costs. M.Y.H. Appeal dismissed.