P L D 1967 Lahore 1138 (PLP)

(j) Cases regarding eviction of tenants (section 13); (k) Cases where re‑opening of decisions which have become final is prohibited (section 14); (l) Cases where any landlord or a tenant is bound to furnish prescribed particulars to a Controller and the penalty for failure to comply with that (sections 18 and 19(1)). After having noticed that various classes of cases can crop up under the Ordinance, let us now advert to section 15 which provides for appeals. On 5‑5‑66 and on 9‑5‑66, when appeals to this case were filed in the Court of the Additional District Judge and this Court respectively, this section stood as follows:‑ (This section, however, was recast by West Pakistan Urban Rent Restriction (Amendment) Ordinance XXI of 1966 on 11‑5‑1966, but in the instant case, we are concerned with the, section as it stood at the time the appeals were filed), "

15. Appeal.‑(l) (a) Government may by a general or special order, by notification, confer on such District Judges and Additional District Judges as it thinks fit, the powers of appellate authorities for the purposes of this Ordinance, in such area, or in such classes of cases, as may be specified in the order. (b) Any party aggrieved by an order passed by the Controller may within thirty days from the date of such order prefer an appeal in writing to the appellate authority having jurisdiction. (2) On such appeal being preferred, the appellate authority may order stay of further proceedings in the matter pending decision of the appeal. (3) The appellate authority shall decide the appeal after sending for the record of the case from the controller and after giving the parties an opportunity of being heard and, if necessary, after making such further enquiry as it thinks fit either personally or through the Controller. (4) Any party aggrieved by an order passed on appeal by the appellate authority appointed by the Government under clause (a) of subsection (1) and if an appellate authority has not been appointed in respect of any area or class of cases, any party aggrieved by an order of the Controller may, within 30 days from the date of the order of the appellate authority or, as the case may be, of the Controller, prefer an appeal in writing to the High Court and the decision thereof shall be final." (5) No order passed by the Controller, the appellate authority or the High Court under the provisions of this Ordinance shall be called in question in any Court of law by suit or otherwise, except as provided under this Ordinance." The provisions of section 15 indicate that the Scheme of Appeal as contained therein, if analysed properly, comes to be this: (i) That if a case falls under those classes of cases which are made appealable under section 15(1)(a) to the District Judges or Additional District Judges, then a person aggrieved from an order of the Controller passed in the case can appeal to them within thirty days; (ii) If an appellate authority has not been appointed in respect of any classes of cases or in respect of any area then the appeal can be filed direct to the High Court within thirty days. (iii) A second appeal is available to a party aggrieved by an order passed on appeal by an Appellate Authority appointed under section 15(l)(a). This shows that all orders of Rent Controllers are appealable and primarily in all classes of cases the forum of appeal is the High Court except in such classes where the Government by a general or special order by Notification confers the powers of the Appellate Authority on the District Judges or the Additional District Judges where they will hear those appeals. It is to be noticed that from this point of view, the classification to be kept in mind for the purpose of seeing the forum of appeal is the subject‑matter of the main case under the Ordinance in which any individual order may have been passed and not the nature of the individual order itself. Another manner of illustrating my view point is that take for instance the Court Fees Act or the Specific Relief Act. A study of these enactments will show that there can be various types and classes of cases, as for example, suits for accounts, suits for specific performance of contracts, suits for damages, suits for declaration, suits for declaration with consequential reliefs; suits for injunction; suits for possession; suits for pre‑emption; suits for cancellation and rectification of documents, suits for defamation; suits for dissolution of marriages; suits for restitution of conjugal rights; suits on the basis of awards and suits for maintenance etc., etc. Now if there were a provision of law that out of the above, the Government may by general or special order specify the classes of cases in which appeals will lie to the District Judge and then if any such order is issued saying that in such cases or classes of cases appeals will so lie, then in that eventuality if a case falls under that class, would there be any doubt about an appeal being preferred with regard to various orders passed in that class of cases to the appropriate authority? What I mean to say, therefore, is that the classification contemplated in section 15(1)(a) of the Ordinance is of the type which I have illustrated in the example I have given hereinbefore. It is a classification with regard to the subject‑matter of the main case and not with regard to the kind of the actual order passed in that type of case. (B) Proceeding to find answer to the present case, now let us advert to the relevant notifications which stated as to in what class of cases appeals were to go to the District or Additional District Judges. Notification No. HG‑10‑2/59 dated the 12th March 1959, published in Gazette, Extraordinary, dated the 16th of March 1959, reads as follows:‑ "In exercise of the powers conferred by clause (a) of sub section (1) of section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959, the Governor of West Pakistan is pleased to confer on all District Judges in West Pakistan and the Majlis‑i‑Shoora in Kalat Division the powers of Appellate Authorities for the purposes of the said Ordinance in respect of Urban Areas in their respective jurisdiction with regard to orders made by Controllers under sections 4, 10, 12 and 13 of the said Ordinance." Notification No. Judl/I‑17(4)(59), published in Gazette of West Pakistan, Extraordinary, dated the 22nd of December 1962, reads as follows:‑‑ "In exercise of the powers conferred by clause (a) of sub section (1) of section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (West Pakistan Ordinance VI of 1959) and in continuation of Government of West Pakistan, Home Department Notification No. HG‑10‑2/59, dated the 12th March 1959, the Governor of West Pakistan is pleased to confer on all Additional District Judges in West Pakistan the powers of appellate authorities for the purpose of the said Ordinance in respect of urban areas in their respective jurisdiction with regard to orders made by Controllers under sections 4, 10, 12 and 13 of the said Ordinance." A perusal of these notifications shows that though they say that appeals with regard to orders made under sections 4, 10, 12 and 13 should go to the District Judges or the Additional District Judges what really they mean is that the orders in those classes of cases which are initiated under the said sections would be appealable to District Judges or Additional District Judges. In other words, what the Notifications have in view is not the nature of any individual order but the nature and the class of the lis and case in which the order itself may have been passed. This interpretation is necessary to be made because the classification was to be made, as indicated in point No. (a) above, with regard to classes of cases arising under various sections of the Ordinance and not with regard to further variety of orders in those sub‑classes of cases themselves, because from that point of view neither any infinite classification was possible and if one is attempted to be made, then it will lead to anomalous results as I will hereafter demonstrate. (C) On the other hand, if it be assumed that classification was to be made by the Government with reference to all varieties of orders which may be passed in any types of cases during their trial, then even from that point of view, the present class of cases, namely, where a Rent Controller had refused to set aside an ex parte order has not been included in the list of cases appealable to the District or Additional District Judges If this is a class of cases by itself,‑then its appeal is to lie to the High Court under section 15(4). It is to be stated that the present appeal if treated as a first appeal from the order of the Rent Controller, dated 25‑4‑1966, is quite within time and will be well‑maintainable. (D) Looked at from another point of view, the sentence in the Notification‑(that with regard to orders made by Controllers under sections 4, 10, 12 and 13 of the said Ordinance, the Appellate Authority shall be District or Additional District Judges) in my opinion connotes not merely the final orders under those sections but all the orders passed during the course of a trial of a case under those sections. As for example, if an application is filed under section 13 of the said Ordinance for eviction of a tenant, then all orders which are passed by the Rent Controller in connexion with that case, can legitimately be called as orders under section

13. The view which I have taken can be illustrated by a further example. It is laid down in clause (10) of the Letters Patent (Lahore) that an order passed by a Single Judge in Second Appellate Jurisdiction is appealable to a Division Bench by a certificate of the Judge concerned. Suppose a Single Judge dismisses an application for a temporary injunction filed in a Second Appeal, such an order of the Single Judge will be considered to have been passed in Second Appellate Jurisdiction because it is passed in a second appeal though it may be the first order in the case. The reason is that it is the jurisdiction by virtue of which the Single Judge was seized of the main case in which the order was passed and not the nature of the order itself which is to be seen to find out the source, sanction or basis of that order. The example which Ii have given is contained in Volume I of Law of Civil Appeals and Revisions by Banerjee 1963 Edition, page 183, with reference to a case reported as Smti. Biatidevi v. Manohar Lal Sultania (1957 B L J R 107). To the same effect are observations in Lakshmi Narain v. Mirza Muhammad Akbar (A I R 1939 All. 185), where it was held as follows by Bennet, C. J:‑ "The Letters Patent do not contemplate that a case which comes before the Court in one kind of jurisdiction can be supplemented by the exercise by the Court of any other kind of jurisdiction. When a Second Appeal comes before a Judge of High Court, if it is within his jurisdiction, the jurisdiction which he exercises is a jurisdiction of second appeal. That jurisdiction covers all the orders which he may make in the course of the second appeal from its commencement to its termination. Hence the order of Single Judge in second appeal refusing to set aside the abatement of appeal is an order made in Second Appellate Jurisdiction and cannot be considered an order passed in original jurisdiction." Similarly in Mohan Lal and another v. Amar Chand (A I R 1935 Lah. 815), it was held that: "It is only in the exercise of his appellate power that a Judge of the High Court can exercise his jurisdiction under Order XLII, read with Order XLI, rule 19 and whatever order he may pass affects the original appeal. When the Judge of the High Court dismisses the appeal for default, he confirms the judgment and decree of the lower Appellate Court and in refusing to set aside that order, he declines as it were to re‑open the case or in other words, to withdraw his order affirming the decree of the lower appellate Court. The order of refusal, therefore, is made in respect of appeal and this has been done in the exercise of the appellate jurisdiction. The certificate required by clause (10) Letters Patent is accordingly necessary before an appeal against the order of refusal can be presented." Applying the same principle here when a Rent Controller in a case under section 13 passes various orders, I would hold that all his orders are passed under that section; because if that section was not there the Rent Controller would not have had the jurisdiction to entertain the application or to proceed to try it or to pass various orders thereon whether interlocutory or final. It does not behove reason to hold that when passing final orders he is passing them under section 13 but when passing interlocutory orders he is passing them under some Other jurisdiction and to pose a question which is that section or jurisdiction? (E) A perusal of section 13(2) of the Ordnance shows that the Controller could pass an order of ejectment only after giving the tenant a reasonable opportunity of showing cause against the application of ejectment. In the instant case, the order directing that ex parte proceedings should be taken against the tenant has been challenged by the learned counsel for the appellant, inter alia on the ground that it purported to violate the provisions of section 13(2) inasmuch as it did not give a reasonable opportunity to the tenant and was, therefore, illegal. On the other hand, from the point of view of the landlady the impugned order purported to show that the Rent Controller did give a reasonable opportunity and it was after the tenant had failed to avail of the same that the Rent Controller proceeded ex parte against him. The question, therefore, whether the Rent Controller afforded a reasonable opportunity is a question arising directly under section 13 and the order of the Rent Controller t on this point will also be an order under the said section and will, therefore, be well‑covered by the Notification which stated that orders under the aforesaid section were appealable to the District Judge or Additional District Judge. (F) Section 15(4) says that "if an Appellate Authority has not been appointed in respect of any area, or class of cases," then any party aggrieved by "an" order of the Rent Controller can appeal to the High Court. The use of the words "any" and "an" read along with the word "case" or "cases" as mentioned in sections 15(4) and 15(1) (a) shows that the provisions of appeal are very wide and (subject to what I will hold later) all classes of cases and all types of orders are appealable. It has been stated in Stroud's Judicial Dictionary (1952 Edition) (Volume I) page 132 that the word "an" is sometime read in the most absolute sense as meaning "any‑whatsoever". Reliance for this proposition has been placed by the learned author on Ex parte: Pratt in re: Pratt (1884) 53 L J Ch. 613), where Cotton, L. J., while interpreting the phrase "an act of Bankruptcy" in Bankruptcy Act, 1.883 (46 and 47 Victoria C. 52) held at page 614 that "I am of the opinion that the expression an act of Bankruptcy includes everything which by Legislative enactment is made to be an act of bankruptcy whether by the Act itself or by some other Act passed before it came into operation", Similarly, it has been held by Fry, L. J., in Duck v. Bates (1884) 13 Q B D 43), that the word "any" is a word which excludes limitations or qualifications. The same was the view taken in Wooler v. North Eastern Breweries (1910) 1 K B 247), A Full Bench of this Court also held the same in Dr. Cowas C. Mehta v. Additional Settlement and Rehabilitation Commissioner and others (P L D 1963 Kar. 938), as per Farooqi, J., at page

952. Respectfully following the above, in my opinion, all and from that point of view even interlocutory orders, would also be appealable. Here I would like to give another example. Under the Letters Patent when it is laid down that an appeal would lie from the judgment of "judgment" a Single Judge, it has been consistently held that the word would include interlocutory judgments and judgments on interlocutory matters as well. Reference can be made to Gokal Chand v. Sanwal Das and others (A I R 1920 Lah.326), Ruldu Singh and others v. Sanwal Singh (A I R 1922 Lah 380(A I R 1960 All. 692), Standard Glass Beads Factory and another v. Shri Dhar and others (A I R 1960 All. 692), The Firm Badri Das Jankidas of Delhi v. Mathanmal and others (A I R 1922 Lah. 185), Firm Shaw Hari Dial & Sons, Madras through H. R. Bagdy v. Messrs Sohna Mal Beli Ram through Arjan Dass (A I R 1942 Lah. 95). Applying the same principle I would hold that the word "case" as used in sections 15(1)(a) and 15(A I R 1922 Lah. 185) of the Ordinance would include decisions on interlocutory matters as well. It is well‑settled as held by seven Judges of this Court in Bibi Gurdevi v. Chaudhri Muhammad Bakhsh and others (A I R 1943 Lah. 65), that the word "case" covers interlocuctory matters and orders as well. This point was thrashed out by a recent Full Bench again of seven Judges in S. Zafar Ahmad v. Abdul Khaliq (P

1. D 1964 Kar. 149), where they reiterated the view that the word "case" covers interlocutory matters. Giving the same meaning to the word "case" or "classes of cases", as used in sections 15(1)(a) and 15(4) it would be obvious that the scheme of the Ordinance is to make every order appealable provided it purports to decide a case. The only thing to be seen is as to whether the forum of their appeal should be fixed with reference to the main case in which they are passed or by treating them as a class by itself or themselves. 1 would prefer to fix their forum with reference to the main case and hold that if the appeal in the main case lies to the High Court then the appeal from an interlocutory order would also go to the same Court. Similarly, if the appeal in the main case lies to the District Judge or the Additional District Judge, then the appeal from an interlocutory order would also go before him. This construction is more plausible and remains consistent with the view which I have taken earlier that it is the class, source and base of the main case which should be seen and not the nature, class, type or kind of the individual order itself. If any other view is taken and as I have held that each interlocutory order can also be taken to be a class by itself then there is likely to arise an anomaly, as for example, in a particular situation the appeals from interlocutory orders may lie to the High Court while appeal from the main order may lie to the District Judge or Additional District Judge , . . . . a situation which would look very odd. (G) There can be another approach. Special Tribunals or Courts functioning under special statutes are sometimes required to follow Civil Procedure Code as far as possible. The effect of this is that the orders of such tribunals then can be divided into two broad categories; namely (i) those falling strictly under the special statute under which those tribunals function and (ii) the others which have to be passed due to the procedural law of the C. P. C., having been followed. If the case is to be examined from this stand, then orders passed under sections 4, 10, 12 and 13 of the Ordinance can be appealed against to the District Judge or Additional District Judge and the rest of the orders falling in the remaining sections of the Ordinance or which may have been passed due to the procedural law of the C. P. C. having been followed will be appealable to the High Court. In this way, so far as the present appeal to this Court directly as a first appeal against the order of 25‑4‑1966 is concerned it would be quite competent though otherwise if this distinction is followed to its logical conclusion, the result would be as held towards the close of reason No. (F) mentioned above. In this way, it would appear, the defect will be in the Notification issued by the Provincial Government‑(and not in the statute) which brings about such a situation.

7. The upshot of the above discussion is that the order of the kind involved in this case did fall within the category of orders passed under section 13 and was appealable to the Additional District Judge and his finding to the contrary was wrong. In the alternative, if it did not fall under section 13 strictly, then it 'being an order of a residuary class will be appealable to the High Court and` from that point of view I am prepared to treat the present appeal as a first appeal.

8. Coming to the case‑law on the subject, in Muhammad Baqa Ullah Khan v. Muhammad Rashid (P L D 1961 Lah. 638), it was held by S. A. Mahmood, J., that it was only the final order falling strictly under the provisions of sections 4, 10, 12 and 13 which could be appealable to the District Judge or Additional District Judge and that interlocutory orders passed in the proceedings under these sections were not appealable. It was a case in which an application for a de novo trial was refused by the Rent Controller and an appeal was taken against that order wherein it was held that such an appeal was not competent, In that case, the finding about the non‑maintainability of appeal was not challenged by the counsel and this feature of the case has to be kept in mind while assessing its value, though there is an observation of the learned Judge in para 7 of the judgment that he was of the opinion that no first or second appeal against such an order was maintainable. The judgment does not discuss the point in detail. As against this, there is a Single Bench Authority of Qadeer‑ud‑Din Ahmad, J., in Faqir Chand v. Mst. Bibi Zulekha (P L D 1961 Pesh. 1), where he differed from S. A. Mahmood, J., in Muhammad Baqa Ullah K han v. Muhammad Rashid and held that appeals against interlocutory orders were also permissible. The interlocutory points in dispute in that case were about the effect of the failure of the landlord to file a plan of the house, about the fact as to whether the application disclosed a cause of action, and about the effect of not giving a notice of ejectment. Both these rulings came to the notice of a Division Bench of this Court in Muhammad Naeem v. Sher Ali (P L D 1963 Quetta 1), where Farooqi and. Nana, JJ‑, preferred the view of S. A. Mahmood, J., in Muhammad Baqa Ullah Khan v. Muhanimad Rashid and did not agree with the view of Qadeer‑ud‑Din Ahmad, J., in Faqir Chand v. Mst. Bibi Zulekha. The case before the Division Bench was about the maintainability of an appeal against an order refusing a person to be impleaded as a party and they held that this being an interlocutory order was not appealable. Had the matter rested there, the position would have been different but another Division Bench of this Court in Mst. Shah Jehan v. Mst. Mukhti (P L D 1963 Kar. 777), (Inamullah, J., as then he was and Waheed ud‑Din, J.) held that orders on interlocutory matters were also appealable. To the similar effect are observations in Muhammad Amin v. Jamshed Ali (P L D 1963 Lah. 436), which was a case about fixation of a tentative rent or arrears of rent under section 13(6) of the Ordinance. It was held by S. A. Mahmood, J., Abdul Aziz Khan, J., concurring that such an order though interloctfory was appealable, Muhammad Yaqub Ali, J., who was the third member of the Full Bench did not agree and wrote a dissenting judgment. In Jalal‑ud‑Din and another v. Aziz‑ud‑Din and anwher (P L D 1963 Lah. 436), Muhammad Yaqub Ali, J., had also taken up a similar view which he had taken in his minority judgment in Muhammad Amin v. Jamshed Ali and held that power to strike out a defence vested only in the Rent Controller and not in Appellate Authority. As this view of Muhammad Yaqub Ali, J., was obviously in conflict with the majority view in Muhammad Amin v. Jamshed Ali, it was taken note of in Muhammad Hussain and another v. Mehraj Din and another (P L D 1965 Lah. 179) and the matter was referred to a larger Bench for considering as to whether in view of the majority view in Muhammad Amin's case the view of Muhammad Yaqub Ali, J., was still correct or not. The case incidentally came up before Muhammad Yaqub Ali, J., where he expressed himself as follows:‑ "I must concede at once that I was not properly advised in expressing the view in Jalal Din and another v. Aziz‑ud‑Din and another that the power conferred on a Rent Controller to strike off defence of the respondent under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) was not available to the appellate authority under section 15(1)(b) of the Ordinance. Though the Ordinance does not contain provisions corresponding to section 107(2) of the Code of Civil Procedure, namely, that the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. Order XLI, rule 33 of the Code of Civil Procedure, which is applicable to appeals under section 15(t)(b) of the Ordinance, inter alia lays down:‑ `The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, . . . . .' This point was not expressly raised before the Full Bench in Muhammad Amin v. Sh. Jamshed Ali but as observed by my learned brother Nazeer Ahmad Mahmood, J., if an order striking off defence is open to appeal a jorliori the appellate authority is competent to pass a correct order in the cases. The reference is answered accordingly." This shows that Muhammad Yaqub Ali, J., also ultimately adopted the majority view of Muhammad Amin's case. Then in Syed Nafis Ahmad Zaidi v. S. M. Hussain (P L D 1964 Lah. 536), S. Anwar‑ul‑Haq and A. R. Sheikh, JJ., maintained an order of the Rent Controller whereby he had set aside his ex parte order of ejectment., In this case a first appeal against that order (i.e., setting aside ex parte order) was entertained and dealt with on merit which impliedly shows that such type of order was assumed to be appealable. In Jiando Khan v. Hakim Muhammad Ishaq (P L D 1964 Kar. 61), it was held that an order striking off the defence of the tenant or directing deposit of rent could be challenged in appeal. Then there is a decision in Allah Ditta and others v. Muhammad Hussain and others (P L D 1965 Lah. 29), dated 18‑2‑63 but reported in 1955 . . . . where the case was about the failure to implead a person as a party and it was held that such an interlocutory order was not appealable. It will thus be seen that the case‑law on the subject is not uniform and it is this state of affairs which had persuaded me to make an independent approach to the point in hand. I have dealt with the case from an original inception and given reasons of my own in support of the view which, I have taken. Though the view which I have taken connotes that all types of orders whether interlocutory or final are appealable but on this point one thing I want to guard against and that is that when I have said that interlocutory orders are appealable, I really mean to exclude such types of orders which are purely of procedural or executive nature or which do not decide a "case" or a "class of cases". As for example, an order adjourning a case or refusing to implead a third person as a party on his own application or disallowing the question to a witness are not u orders deciding a case and would not be appealable. Again, the word "order" is not defined in the Ordinance but then this should not present any difficulty in understanding as to what it means. The short answer can be that an order should be such which decides a case whether it is interlocutory or final.

9. Coming to the merits of the case, the point to be seen is whether there was sufficient ground or sufficient cause for the tenant for non‑appearance on the 23rd of December 1965, when ex parte proceedings were ordered against him and as to whether he had been properly served for that date. In this respect, the summons which was allegedly served by the process‑server on the tenant contained the following endorse. ment: Below this endorsement is appended an affidavit of the process‑server which is to the following effect:‑ The process‑server in this case seems to have acted under Order V, rules 16, 17 and 18 of the Civil Procedure Code. The said rules read as follows:‑ "(16) Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgment of service endorsed on the original summons. (17) Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment or where the serving officer, after using all due and reasonable diligence, cannot find the defendant and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any), by whom the house was identified and in whose presence the copy was affixed. (18) The serving officer shall, in all cases in which the summons has been served under rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons." A perusal of the aforesaid provisions alongwith the endorsement of the process‑server and his affidavit, would reveal that the service effected by the process‑server suffered from the following defects. Firstly, according to Order V, rule 17, the process server was supposed to affix a copy of the summons on the outer‑door or some other conspicuous part of the house in which the tenant resided. The report/endorsement of the process‑server shows that he did not affix a copy of the summons, but according to his own showing merely a copy of the plaint (i.e., ejectment application). Secondly, the report endorsement also does not contain the names or attestation of the two witnesses (D. H. W.2) of (D. H. W.3) who later on turned up to support the process‑server by saying that they were passing by that place when they saw the process‑server N offering the summons to the tenant and that the tenant refused to receive the same. Thirdly, the said witnesses have nowhere deposed that the process‑server in their presence affixed the copy of the summons on any house and, if so, which that house was and who identified the same. Fourthly, according to rule 18, the process‑server was required to state on the original summons the time when the summons was served. Strangely enough, the report of the process‑server did not contain any such time and from that point of view also the alleged service did not comply with the requisites laid down by the law on the subject. Fifthly, according to rule 4 of the High Court Rules and Orders Volume 1V, Chapter VII, Part B, read with rule 19 of the Order V of the C. P. C. the return of the summons was to be accompanied 0 by an affidavit. The pro forma of that affidavit is prescribed in Appendix I attached to the said rule and is to the following effect: A perusal of the report/return/endorsement and the affidavit filed by the process‑server would, however, show that it did not in the least correspond with the requisite pro forma nor it fulfilled the other requirements. Sixthly, apart from these legal defects in .the service, allegedly, effected by the process‑server, there is a further inherent improbability in the version of the process‑server. It is the case of the landlady that the service was effected at about 6 or 6‑30 p.m. in the month of December. This will be a pretty dark time and I am not inclined to believe that the process‑server during those winter days would have taken the trouble of going to Model Town for effecting the service at that awkward hour. Then there is nothing to indicate as to whether there was light at the place where the process‑server alleges to have delivered the summons to the tenant; and the tenant is alleged to have read the same. The case of the landlord is that the tenant came out of his house when the process was offered to him. The house is a double‑storeyed building and the tenant is alleged to reside in the first‑floor. At what place the tenant came and where the process was offered to him and where he read the same is all a mystery. Seventhly, the tenant led evidence that on 20‑12‑1965, he was out of Lahore and the story of effecting any service on him was a concoction. On this point, one very important witness produced by him was P. W. 3 Mian Sultan Ahmad who proved that on that day there was a marriage function of his daughter, on which the tenant was also invited as per invitation card Exh. A/1. He stated that on that date, the tenant did not turn up and on his asking next day the tenant told him that on the day of marriage he was out of Lahore in Gujranwala. It is significant to point out that this witness was not cross‑examined by the counsel for the landlady which means that the statement of this witness was not being taken exception t o and was rather accepted. It is laid down in Karnidan Sarda and another v. Sailaja Kanta Mitra and another (A I R 1940 Pat. 683), per Wort, J. at page 685 that failure to cross‑examine a witness means that his statement o is being accepted. Eighthly the tenant produced judicial proof from the record of the Court of the A. D. C. Gujranwala, by producing a copy of the proceedings, dated 20‑12‑1965, in a case in which the tenant appeared before him. These proceedings were proved by Mr. Muhammad Ibrahim (P. .1) who brought the original file of the relevant case? The Rent Controller did not attach proper importance to this judicial record and at the same time did not take the inherent defect in the service report endorsement of the process‑server and nor did he attach full weight to the above aspects of the tenant's evidence and nor noticed the salient features of the statements of his witnesses. The Rent Controller appears to have dealt with the matter in a most cursory and haphazard manner. He did not keep in view the past history of the case, which had been given by the landlady herself in her ejectment application as to how many times she had sued the tenant and how the tenant always appeared and defended the litigation. The learned Rent Controller did not consider as to whether in that context and in view of the past history of the case, the tenant would have allowed the case to go ex parte against him or would have dared to refuse process of the Court or would have afforded to suffer an order of ejectment in default like the present one. The Rent Controller thought that since the tenant had stated that from GuiranvAala re went to Wazirabad by Shaheen Express and since the train Shaheen Express did not operate between these two stations, therefore, the whole of his statement, version or case should be condemned. The Rent Controller did not give allowance for the fact that this might be a case of lack of exactness in knowing the names of various trains nor did he get it clarified from the tenant as to whether by Shaheen Express he really meant a train or a bus; because it is common knowledge that these days buses also carry various popular names‑even after the names of the trains. Anyhow, against this slight lacuna there was other overwhelming proof led by the tenant which was sufficient to convince that the service on him was never effected and he never refused the same and that he was not in Lahore on the relevant date. The witnesses produced by the landlady are just chance witnesses whose names do not appear in the report/endorsement of the process‑server. The husband of the landlady, who is a resident of Model Town seems to have put up those witnesses. Though in the report of the process‑server no time was given nor in the affidavit there was any indication to that effect but in Court they all tried to show that it was 6 or 6‑30 p.m. From this I get a clue that the story that the tenant was in Gujranwala on that day, appears to be true and correct and was impliedly admitted to be correct by the landlady and that is why that she introduced 6 or 6‑30 p.m. time so that she may take up the plea of the possibility of the tenant having come back by that time. For the various reasons given above, 1 am inclined to accept the version and the evidence of the tenant and would reject the evidence of the landlady as being unreliable. 10.The outcome of the above discussion is that the order of the Rent Controller dated the 25th of April 1966, refusing P to set aside the ex parte proceedings is set aside and he is directed to decide the main case on merits in accordance with law. The appellant will get the costs of his appeal. S. A. O. No. 183 of 1966

11. As regards S. A. O. No. 183 of 1966, it was conceded by the learned counsel for the landlady that if the order dated 25‑4‑1966 of the Rent Controller refusing to set aside the order directing ex parte proceedings is vacated and held illegal, then the ex parte order of ejectment, dated 8‑1‑1966, will also fall along with the same and in that eventuality this S. A. O. would become in fructuous. On the findings, which I have given in S. A. O. No. 136 of 1966 (which should be read as a part of the judgment in this case), the order, dated 25‑4‑1966, has been held to be illegal with the result that the ex parte order of ejectment dated 8‑1‑1966, automatically collapses and there is no need to formally set the same aside in appeal. The ejectment order aforesaid in view of my findings in S. A. O. No. 136 of 1966, no longer exists and is a nullity. The present S. A. O. No. 183 of 1966, there‑fore, becomes infructuous and is disposed of accordingly. The appellant will have his costs in this appeal as well. M. A. Appeal accepted.