1984 PLP 2000 (CLC)

‑‑ S. 21‑Civil Procedure Code (V of 1908) O. IX, r. 13‑Ejectment application‑Ex parte order of ejectment, setting aside of‑Several efforts made by Rent Controller to effect service of notice of ejectment case on tenant but he avoided to make appearance‑One notice of ejectment received by brother of tenant bust no appearance made -Substituted service also availed‑After ejectment order passed ex-parte by Rent Controller and application for execution thereof made by landlord, tenant moving application for setting aside ex parte ejectment order and that too with negligence‑Held, in view of evidence on record service of notice rightly treated as good and case set up by landlord having gone uncontroverted ejectment: case rightly allowed. Mrs. Salima Nasiruddin for Appellant. Zahiruddin Ahmed for Respondent. Date of hearing : 27th November, 1983. Ejectment Case No. 5691 of 1979 was instituted on 19‑12‑1979 by the respondent/landlord for ejectment of the appellant/tenant on the grounds of default and personal requirement. Several attempts were made to serve the appellant with the notice of the ejectment case but the appellant could not be served in the ordinary manner. In the circumstances an application was filed for substituted service by the respondent which was granted by order dated 4‑1‑1981 by Rent Controller and it was directed that the notice may be served through Registered A/D Post, by pasting the notice on a conspicuous part of the premises in question and by publication in a newspaper. After this was done, and the service was held good and on the basis of the affidavit‑in- evidence filed by the respondent, there being no cross‑examination as the appel lant was absent, the learned Rent Controller granted the ejectment application filed on the grounds of default as well as personas requirement. The ejectment order of the Rent Controller is dated 23‑4‑1981. After the ejectment order had been passed the respondent filed Execution No. 57/81 for obtaining possession of the premises in dispute. On 30‑10‑1981 a Vakalatnama was filed purporting to have been signed by the appellant and on that day when the case was fixed for the hearing of the Execution Application, the case was adjourned to 26‑10‑1981 for hearing of the objections. The case was adjourned then to 15‑11‑1981 and then 2‑12‑1981 and then 9‑12‑1981 but no objections were filed. On 9‑12‑1981 another Advocate filed Vakalatnama on behalf of the appellant and filed an application under Order IX, rule 13, C. P. C. for setting aside the ex parte ejectment order. This application was dismissed by order dated 9‑5‑1982 of the Rent-Controller. Being aggrieved the appellant has filed this appeal under section 2.1 of Sind Rented Premises Ordinance, 1979. I have heard Mrs. Salima Nasiruddin, learned counsel for the appellant and Mr. Zahiruddin Ahmed, learned counsel for the respondent.

2. It was contended by the learned counsel for the appellant that proper service was not effected on the appellant and as such the ejectment order had been obtained ex parte which is liable to be set aside in order to give an opportunity to 'he appellant to defend the ejectmaent case. In this case there are several reports of the bailiff when he had gone to effect service of the notice of the ejectment case upon the appellant but the premises were found locked. One Registered A/D notice sent to the appellant was returned with the endorsement of the Postman that he had come on several occasions to the premises but always found it locked and accordingly the registered cover was returned. Then there is one notice on the record of the Rent Controller which bad linen taken by the bailiff of the Rent Controller for Service for the next date of hearing fixed on 24‑9‑1980 and the report of the bailiff in respect of this notice was that one person by the name of Muhammad Yousuf claiming to be the brother of the appellant received the notice and appended his signature on the notice. The signature of Muhammad Yousuf on the said notice appears to have been made by the same person who moved an applica tion in the Execution Application for adjournment on 2‑12‑1981. Muhammad Yousuf who signed the application for adjournment dated 2‑12‑1981 in the Execution Application on behalf of the appellant is the brother of the appellant. This is admitted by the learned counsel for the appellant. These facts show that several efforts were made by the Rent Controller to effect service of notice of the ejectment case upon the appellant but who avoided to make appearance in the ejectment case. Muhammad Yousuf is admittedly brother of the appellant and one notice of the ejectment case had been received by Muhammad Yousuf but in spite of that no appearance was made before the Rent Controller in the ejectment case. On the basis of the reports of the bailiff, report of the Postal Authority and the fact that one notice had been accepted by Muhammad Yousuf, brother of the appellant, the Rent Controller did not commit any illegality in ordering service of notice through the sub stituted mode of service. In my view on the basis of the material on record the learned Rent Controller correctly held that the service on the appellant was good., The material on record further indicates that the appellant was aware of the fact that the ejectment case bad been filed against him but in spite of this the appellant did not make any appearance in the ejectment case. It has already been noted that there was further negligence on the part of the appellant in moving application under Order IX, rule 13, C. P. C. on 9‑12‑1981 although Vakalatnama of Mr. Muzaffar had been filed and appearance had been made on behalf of the appellant before the Rent Controller in Execution Application on 3‑10‑1981.

3. On the basis of the evidence on record adduced by the respondent in the form of an affidavit with the appellant being absent and no cross‑examina tion having taken place and the case set up by the respondent having gone uncontroverted, the ejectment case was rightly allowed by the Rent Controller. As a result F. R. A. No. 540/82 is dismissed but with no order as to costs. The appellant is, however, granted time till 30‑4‑1984 to vacate the premises subject however to payment of rent. M. Y. H. Appeal dismissed.