1995 PLP 315 (CLC)

"Let the notice be issued for publication in Newspaper, for affixation on the case premises and Court notice board and also send by Registered Post/A.D." In compliance of the said order, the notice was published in Daily "Hurriyat" dated 18‑2‑1988 and as per bailiff's endorsement a notice was also pasted on the door of case premises and also on the door of the residential address of appellants/tenants, for hearing 25‑2‑1988, on his own, for want of non‑availability of any witness. On 25‑2‑1988, the Rent Controller on the basis of the publication, held the service upon the opponent/appellants/tenants good and adjourned the matter to 2‑3‑1988 for written statement of the tenants. On 2‑3‑1988 the Rent Controller passed ex parte order against the appellants and fixed the matter on 21‑3‑1988 for the affidavit of applicant/respondent in ex parte proof, which was filed on 5‑4‑1988, as such passed ejectment order directing the tenants/appellants to vacate the rented premises within two months. On 5‑10‑1989 the opponents/appellants made application for setting aside the order dated 5‑4‑1988 under Order 9, rule 13, C.P.C., when the applicant/respondent had already filed execution proceedings. The main ground advanced in the said application was that the ex parte orders were obtained by the applicant/respondent against them, by playing fraud upon the Court and by misrepresentation and manipulation of the facts as their wrong address was given and thereby managed to obtain ex parte orders against them. This application was resisted by the applicant/respondent and after hearing the parties' advocates the Rent Controller dismissed it vide order dated 22‑1‑1991. In the above appeal, the appellants/tenants have challenged the order dated 5‑4‑1988 followed by order dated 22‑1‑1991. I have heard Mr. Ahmedullah Farooqui, Advocate for the appellants and Mr. Iqbal Kazi, Advocate for the respondent and with their assistance also p9rused the record. Mr. Ahmedullah Farooqui has mainly argued on the point of service of notices on the appellants and has referred different decisions in support of his contention reported in 1989 CLC 2183, 1394, 691; 1983 CLC 1462; 1989 MLD 578; 1988 MLD 105 and 1987 CLC 635 and an unreported judgment of Supreme Court of Pakistan in Civil Appeal No. 321/91 dated 13‑5‑1992 while Mr. Iqbal Kazi supported the impugned orders and stressed that no illegality is committed in serving the appellants/opponents in the trial Court. The crucial point involved in the case is as to whether Rent Controller was justified to pass ex parte order dated 5‑4‑1988 against the appellants, on the basis of the material available an record. Admittedly the notices returned unserved on four occasions i.e. for hearings 6‑10‑1987, 27‑10‑1987, 26‑11‑1987 and 20‑12‑1987. The notices for 6‑10‑1987 were returned with the endorsement that the rented premises was closed and at the given residential address of tenants no such persons are living there. It is pertinent to note that the notices for 6‑10‑1987 neither bears signature of the issuing authority nor the seal of the Court, as such the same were no more legal, notices and liable to be overlooked. The notices for 27‑10‑1987 were returned with the endorsement that the rented shop was closed, while the residential house could not be located. This also was not a valid service. The notices for 26‑11‑1987 were returned with the same endorsement as that of 6‑10‑1987 because the bailiff happens to be the same on both occasions i.e. for hearings 6‑10‑1987 and 26‑11‑1987. The notices for 20‑12‑1987 were returned with the endorsement that the shop in question and so also the residence given in the notices were found closed. ' In order to serve the opponents in the Rent Case, the Rent Controller issued process through bailiff only and not by Registered Post A.D. simultaneously as required under Order 5, rule 10‑A, C.P.C. This is clear violation of the requirements of law. On 20‑12‑1987, when application under Order 5, rule 20, C.P.C. for substituted service was made, the Rent Controller, without applying its judicious mind to the requirements of Order 5, rule 20, C.P.C., allowed the said application by passing an unreasonable order mentioned above. The record of the case does not show that the notice was also pasted on Court Notice Board in compliance of the order dated 20‑12‑1987. The record is also silent as to whether the notices for 25‑2‑1988 were also sent to the opponents by Registered Post A.D., as ordered by the Rent Controller in its order dated 20‑12‑1987. In view of the above position, it is clear that the order dated 20‑12‑1987 was not complied with in its true sense and meanings, as such the Rent Controller was not justified to pass ex parte order against the appellants in the circumstances. The legal requirement of Order 5, rule 17, C.P.C. is that the notice should be pasted on the given address in presence of some person as witness, but in the instant case the notices were pasted by the bailiff on his own and in absence of any witness, as such it cannot be termed as service by pasting on the opponents, in accordance with law. The legal requirement of Order 5, rule 20, C.P.C. is that where Court is satisfied that there is reason to believe that defendant is keeping out of way for the purpose of avoiding service or that for any other reason the summons cannot be served in the ordinary way, the Court shall order service by pasting or in any such other manner deemed fit. In the instant case vide order dated 20‑12‑1987 service was ordered by way of .(i) publication in newspaper (ii) affixation on the case premises and the Court Notice Board and also (iii) Registered Post A.D. The Rent Controller failed to satisfy itself whether notices were pasted on Court Notice Board and secondly whether notices were sent to opponents through Registered Post A.D. The record is silent in this respect. Moreover, there was no evidence to show that appellants/tenants were avoiding service. In the Memo. of Appeal, the appellants who are opponents in the Rent Case, are shown to be son and mother, as appellant No. 1 is son while appellant No. 2 is widow of Abdul Khalique, but in the Rent Case they are shown as husband and wife, as the opponent No. 2/appellant No. 2 is shown as wife of opponent No. 1/appellant No.

1. On this aspect of the case none of the learned advocates argued before me, as such it is left for the parties and the Rent Controller to determine as to which of the relation between them is correct. For the facts and reasons mentioned above, I set aside the impugned orders dated 5‑4‑1988 and 22‑1‑1991 and allow the appeal with no order as to costs. The case is remanded to the learned Vth Rent Controller, Karachi‑East for fresh decision on merits after giving chance to the appellants to file their written statement, recording evidence of both sides and hearing them. H.B.T./S‑1107/K???????????????????????????????????????????????????????????????????? Appeal allowed.