1996 PLP 1339 (SCMR)

SAJJAD ALI SHAH, J.

This appeal with leave of the Court is directed against order dated 4-10-1992, whereby F.R.A. No.464/92 filed by the appellant, who is tenant, is dismissed in limine.

2. Briefly stated the relevant facts in the background are that the building in which the tenement in dispute is situated was purchased by new landlord, who served notice of attornment on the tenant. Landlord filed Rent Case No.1298/91 on 7-8-1991 for eviction under section, 15(2) of Sindh Rented Premises Ordinance, 1979 against Hassan Khan as tenant and Gul Naushad as sub-lettee. Vide order dated 9-10-1991 ex parte order in the proceedings was passed for the reason that both opponents named in rent application remained absent after service, which was held good.

3. In the execution proceedings arising from ex parte order of eviction, objections were filed on 31-3-1992 to the effect that proper service of notice did not take place in the rent. case and tenant came to know about the proceedings after receiving notices in the execution proceedings. Plea was taken that opponent No.2 named in the rent case is servant of tenant and had nothing to do with the case. Vide order dated 9-9-1992 execution application was allowed and writ of possession was issued on the ground that judgment-debtor after filing objections disappeared and remained absent. F.R.A. No.464/92 was filed in the High Court praying for setting aside of ex parte order of eviction in Rent Case No.1298/91 and issue of writ of possession in Execution Application No. 10 of 1992.

4. It is submitted before us on behalf of appellant/tenant that both ex parte orders have been passed against Gul Naushad who is impleaded before us as respondent No .2 and further stand is taken that he is not actual tenant of the premises in dispute. It is submitted that appellant Hassan Khan, who is actual tenant, was not served at all in both the proceedings. Record shows that in the objections filed in the execution proceedings, it is mentioned that opponent No.2 (Gul Naushad) is servant of tenant. Further report of bailiff in the rent case (page 41 of paper book) shows that service of both notices was accepted by Gul Naushad on 18-8-1991. Endorsement on the back page shows that when the bailiff came to the shop in question, Gul Naushad was present in the shop and accepted notice on his behalf as well as on behalf of tenant Hassan Khan. On 2-9-1991 the Court held service of notices on both the opponents as good and waited till 2-p.m. and then adjourned the case to 14-9-1991 for filing of written statement. The case was once again adjourned to 19-9-1991 for the same purpose but since there was no intimation from the opponents in the rent case, order was passed for ex parte proceedings.

5. Learned counsel for the appellant has pointed out to us that in the notice (page 41 of the paper-book), date of hearing is mentioned as 2-8-1991 and not 2-9-1991 as is shown in the case diary on which date the service was held good. We are of the view that there is no mistake and the date of hearing mentioned in the body of notice is 2-9-1991 because 9 slightly appears as 8 but it is obvious that the notice was issued on 12-8-1991, hence there was no room or justification for mistaking the date of hearing as 2-8-1991. In any case, if there was room for doubt the same could have been got clarified by making enquiry from the Court particularly when the notice was accepted by Gul Naushad on his behalf as well as on behalf of tenant Hassan Khan and ex parte order was passed on 19-9-1991 after giving sufficient time for filing of written statement. It is admitted that Gul Naushad is servant of Hassan Khan, who is tenant and in that case it is expected that Gul Naushad must have informed Hassan Khan about receiving notice from the Court in the rent case.

6. Appellant has mentioned in memorandum of petition filed in this Court in paragraph 3 that after letter of attornment was served upon him by the new landlord, he attempted to pay the rent but Munshi of that landlord refused, hence he was compelled to send the rent through money order which was also refused and in such circumstances he filed Miscellaneous Rent Case No.1188/91 and after seeking permission of the Rent Controller deposited rent for May, June and July, 1991 after refusal of money orders. Not only that but it is mentioned by the appellant that he had also filed Suit No.1168/91 against the landlord on 17-8-1991 for permanent injunction as landlord on 17-8-1991 for permanent injunction as landlord attempted to dispossess him unlawfully and obtained order of status quo on 19-8-1991. In such circumstances how can tenant disown service of notice in rent case or knowledge of service of notice upon him through Gul Naushad, who is claimed to be servant in the shop. Tenant had already picked up litigation in respect of shop against new landlord and his explanation is not convincing that notice in the rent case was served upon his servant and not on him in spite of the fact that notice was accepted on behalf of both.

7. It appears that after acquiring knowledge of the rent case from his servant, tenant could have participated in the rent case or could have found out about ex parte order and could have filed First Rent Appeal against the ex parte order of eviction, which was not done and instead attempt was made to contest execution proceedings. Mr. Rehmat Elahi learned Advocate, Supreme Court for the respondent (landlord) has pointed out that in the additional paper book he has filed copy of written statement in Suit No.1168/91 on 9-9-1991 and tenant had received copy thereof. In the said written statement additional plea was taken that defendant/landlord had already filed Rent Case No.1298/91 against tenant and one Gul Naushad for eviction which was pending. It was in the knowledge of the tenant that rent case was pending in which ex parte order was passed after one month on 9-10-1991.

8. In such circumstances as stated above, joint appeal in the High Court is time-barred to the extent of ex parte order of eviction which was passed on 9-10 1991 and is filed after 5-1/2 months. In the execution proceedings also there appears to be no plausible explanation for remaining absent after filing objections.

9. For facts and reasons stated above, we are unable to find any flaw or legal infirmity in the impugned order, which is hereby upheld and the appeal is dismissed which has no merits. A.A./H-223/S Appeal dismissed.