1986 PLP 2040 (CLC)

2. I must, however, make it clear that I am deciding this appeal against the order of 27‑2‑1985 and not against the order of 31‑7‑1983 because on 24‑3‑1985 when this appeal was filed an appeal merely against order of 31‑7‑1983 had become time barred. However, since I have decided, after hearing the two counsels on both sides that the order of rejection of application under Order IX, rule 13, dated 27‑2‑1985, was incorrect and I am allowing the said application, therefore, the result is that the order of 27 2‑1985 is set aside and by allowing of the application under Order IX, rule 13, C.P.C. the order of 31‑7‑1983 is also set aside and the matter is remanded for fresh decision on merits by the Rent Controller of the area having jurisdiction in this case.

3. The ejectment application had been filed by the respondent against K.B. Bashir on 21‑2‑1982 and I have seen the various endorsements on the summons made by bailiff to the effect that the summons were returned unserved. There is only one endorsement of 2‑4 1983 in which the bailiff had stated that some one had come out of the house and after reading the notice had stated that the opponent was not in the house. However, no name or relationship of that person with late K.B. Bashir is mentioned. What is more important is that on 23‑4‑1983 the bailiff had reported that he could not find the house of the opponent. It appears that notice by registered A.D. post was also sent to K.B. Bashir on the address given in the application but the same was returned with the endorsement, "refused", dated 13‑4‑1983.

4. The Rent Controller allowed application under Order V, rule 20 filed by the respondent for substituted service on 24‑4‑1983. And that substituted service was effected through publication in newspaper, pasting of notice on the house of K . B . Bashir and sending a notice by registered A.D. post, again, which was returned with the endorsement "refused to accept" in Urdu. The endorsement of the bailiff about pasting of the notice on the house of K.B. Bashir is that he had pasted the notice on 28‑5‑1985 but no witness was available. The Court accepted the service as good and decided the matter ex parte on 31‑7‑1983 Application for setting aside of the ex parte order was made by legal representatives of K.B. Bashir on 17‑1‑1985 because K.B. Bashir had died on 17 10‑1983. The said application was rejected on the ground that because the summons could not be served upon K.B. Bashir and postal service was refused, therefore, the service of summons by substituted service was correct.

5. The present appellant had also brought to the notice of the Rent Controller that the respondent had been recovering rent from them regularly but the learned Rent Controller disregarded the same on the ground that since they were lump sum payments receipts, therefore, they were against the provisions of Sind Rented Premises Ordinance, 1979

6. I am unable to understand as to why payment of rent receipt is disregarded by the Rent Controller merely because it is a lump sum payment. The said receipts were shown to the Rent Controller in order to show that K.B. Bashir was present during the time that the proceedings before Rent Controller were pending, and that rent was being recovered from him and. therefore, in those circumstances the service of summons by substituted service was not proper. In that context, those receipts were relevant and should have been given due consideration. These lump sum payment receipts would of course receive a different consideration when they were produced for the purpose of the discharge of responsibility in respect of the payment of rent which payment should be made regularly. Therefore, the view of the Rent Controller that the lump sum payment receipts were against the provisions of Sind Rented Premises Ordinance, 1979 was not absolutely correct for the purposes of consideration of application under Order IX, rule 13, C.P.C.

7. I have gone through the record and proceedings of the lower Court and I find that the bailiff had never found K.B. Bashir at the premises, on 2‑4‑1983, and on other occasions he had returned the summons without any service as he could not either locate the premises or could not serve them due to want of time, therefore, in these circumstances it could not be said that K.B. Bashir was avoiding to receive the summons from the bailiff.

8. In respect of the refusal of postal A.D. letter on 13‑4‑1983 it is sufficient to refer to P L D 1964 Kar 211 where it has been observed as under:‑ .......I am unable to accept the contention that by the mere endorsement of the word refused' on the envelope containing the notice sent in the name of the respondent, a presumption should be raised against him without there being any evidence or statement on oath of the appellant in support of this circumstance. There was no proof that this notice was actually served on the respondent, and was refused by him."

9. Mr. Azhar Ali Siddiqui had relied upon N L R 1984 A C 57 where it had been observed that it was not necessary for Rent Controller to examine postman where the postman had made an endorsement several times on registered A.D. letters that the shop had been found locked by postman. However, the facts of that case are different inasmuch as several attempts have been made by the bailiff in that case and he had endorsed that the shop had been found locked and several registered A.D. letters have been sent on that address and every time the endorsement came that the shop has been found locked by the postman. In the present case before me only one registered letter has been sent before substituted service which was returned with the word. "refused". Moreover there was not even a single endorsement from the bailiff that K.B. Bashir had ever refused to receive the summons of that he was hiding or concealing himself in the house.

10. In these circumstances I am of the view that since the appellants had clearly denied any receipt of letter or service of summons upon K.B. Bashir, therefore, there was no justification to refuse the application under Order IX, rule 13, C.P.C. I am clearly of the view that on 24‑4‑1983 when the application under Order V, rule 20 was made by the respondent there was no justification of moving that application by that date because it could not be said that K.B. Bashir was avoiding to receive the summons or was keeping out of the way for the purpose of avoiding service. Since K.B. Bashir was made some payments of rent during this period, therefore, he was clearly available for service of summons the ordinary way and, therefore, the order of substituted service of summons was not justified and consequently the service of summons effected by substituted service was not in accordance with law. Even the pasting of the notice on the house K . B. Bashir was not witnessed by any one on 29‑5‑1983 and publication of notice in daily Mashriq on 4‑6‑1983 could not be regarded as enough service in the circumstances of the case particularly when the basis for substituted service was missing. Similarly the endorsement from the post office that the addressee had refused to take the summons was again of no consequence as the same had been denied by the appellants and no one had been examined from the post office to prove the endorsement.

11. Consequently the order. dated 27‑2‑1985 passed by the Rent Controller is set aside and the application under Order IX, rule 13, C.P.C. made by the present appellants is allowed with the result the order, dated 31‑7‑1983 is also set aside.

12. The appeal is disposed of and the case is remanded back to District Judge, East, Karachi, for allocating the same to some Rent Controller for fresh decision on merits. R&PS should be sent back to District Judge (East), Karachi, within 15 days and both the parties are directed to present themselves before District Judge (East), Karachi on 4th January, 1986 for the purpose of allocation of the case to the Rent Controller, and the District Judge would also give a date of hearing to the parties before Rent Controller, so that the Rent Controller could decide the case within four months of the first hearing before him. The Rent Controller is directed to decide the matter after allowing parties to adduce fresh evidence. I am directing the appellants to file their written statement on the first date of their appearance before the Rent Controller, Mr. Munwar Malik has been supplied the copy of the original application of ejectment, and he has undertaken to file the written statement as per orders of this Court. A. A. Order accordingly.