1983 PLP 1132 (SCMR)

ABDUL KADIR SHAIKH, J.‑This is a petition for leave to appeal from the judgment of a learned Judge of Sind High Court dated 13‑3‑1983 setting aside the ex parte order of ejectment dated 25‑11‑1980 passed by the Rent Controller against the respondent in respect of the demised premises. It was submitted before the High Court on behalf of the respondent that "he had absolutely no knowledge of the institution of the case of ejectment as at no point of time any notice or other process was served upon him and that on 22‑8‑1981, in his absence, the writ of possession was executed". Learned Judge in the High Court on examination of the record of the Rent Controller accepted these assertions and set aside the order of the Rent Controller in these words "I have found from a perusal of the R & P that none of the reports of the bailiff is available on the record. The registered acknowledge ment' due card is available on the record to show that the service through registered post had been effected. Even the notices/ summons are not available on the record. There is no evidence to show that the service had been effected on the appellant. In the circumstances, the impugned order of ejectment, dated 25‑11‑1980 is set aside and as a consequence further actions/orders taken/passed in pursuance thereof in execution application are also declared to be illegal and invalid. Mr. Nasim Faruqi learned counsel for the petitioner submits with reference to order‑sheet of the Rent Controller that respondent was actually served with notices by ordinary process and on his refusal to accept the summons, he was served by substituted service by publica tion of notice in the daily `Hurriat', dated 16th September, 1980. According to learned counsel, the original notice and the ports of the bailiff were "apparently removed from the file", and "the respon dent in fact collusively and fraudulently manipulated the record of the learned Rent Controller in order to show that ex parte order ex facie was illegally obtained." Learned counsel submitted that learned Judge in the High Court ought to have held an enquiry into disappearance of the reports of the bailiff so as to establish the responsibility of the concerned persons and institution of proceedings for such wanton acts. The question whether notice of the ejectment application was duly served on the respondent in accordance with .law is essentially a question of fact, and since the High Court has given a finding of fact in this regard on the basis of the record, we do not see how interference by this Court would be justified. It was open to the petitioner to urge before the High Court that an enquiry be ordered as to the disappearance of the original notices and the bailiff's reports in order to establish the responsibility of the persons concerned. Since in the absence to these documents learned Judge took the view that "there is no evidence to show that service had been effected on the appellant (respondent herein)" no exception in law can be taken. The petition is, therefore dismissed. M. A. K. Leave refused.