1988 PLP 128 (MLD)

The learned counsel for the appellant Mr. G.P Sheikh submitted that the appellant was not duly served with the notice of the ejectment application. In support of his submission it was contended that the notice issued by the office of the learned Rent Controller did not contain the correct address of the appellant, and therefore, the bailiffs reports, as such, are not to be relied upon. The submission seems to be without force. Admittedly, the building in question is situated on a small plot of land, consisting of one ground first floor and 2nd floor. The ground floor is occupied by landlord, whereas the appellant is in occupation of two rooms as a tenant on the second floor for the last 15 years. So, the address of the appellant as well as tar the building i.e. No. III‑C 3/2, Nazimabad, Karachi. The counsel further submitted that second floor has not been mentioned in the address of the appellant, neither in the application for ejectment filed by the respondent nor the notice issued by the office of the learned Rent Controller. But in the facts and circumstances of the case, it is of little significance, as well as shown presently. It seems proper to look into the facts as to service of notice. The first notice was ordered to be issued to the appellant through the bailiff. The bailiffs report is as under:‑‑ However the learned Rent Controller ordered the issue of fresh notice to the appellant by pasting through bailiff and fixed the next date as 10‑7‑1986. As per bailiffs report on 15‑6‑1986 at about 3 p.m. he went to the address and pasted the notice on the house of the appellant in presence of two witnesses whose signature were obtained by him on the copy of the notice returned to the Court. These witnesses are named as Shaukat and Raheel. The‑address shown of the witness Raheel is III‑C 4/2, i.e. adjoining to the building in question. The learned Rent Controller further ordered for the publication of notice which was duly published in daily newspaper "Hurriyat" on 12‑8‑1986 for 21‑8‑1986. The case, on 21‑8‑1986, was called but the appellant remained absent, so it was put off to 26‑8‑1986 for further order On 26‑8‑1986 the appellant, though served again remained absent. The learned Rent Controller therefore ordered the matter to proceed ex parte against him. Thereafter, the case was adjourned to 10‑9‑1986. On 10‑9‑1986 it was put of to 6-10-1986 for judgment. On 6‑10‑1986 the learned Rent Controller allowed the ejectment application. On 11‑11‑1986 the learned counsel for the appellant filed an application under section 19(2). Counter affidavit was filed by the respondent. It was then heard. On 4‑12‑1986 on the same day the application was dismissed by his order dated 10‑1‑1987. Learned Counsel for the Appellant relied on the case of Mashlakhuddin v. Syed order 1982 S C M R 570). In that case it was observed that:‑‑ "I find on a plain reading of this provision that in cases of this nature the rent controller has keep two facts in mind and give a finding on the same. This subsection states that it should be found that the notice has been served and further that the default in filing of reply is without reasonable excuse. The use of the word `found' and the word `without any reasonable excuse clearly mean and reply that the Rend Controller has to record a finding that a notice has been served and further that the default in making reply was without any reasonable excuse. Unless findings on these two facts are recorded the Controller cannot give full effect to subsection (2) of section 19 of the Sind Rented Premise Ordinance. (Incidentally it may be mentioned by me that in the above judgment the name of Mr. Justice Abdul Hayee Kureshi, has been printed, but so far as my recollection goes the judgment was delivered by Mr. Justice Abdul Kadir Shaikh, as Mr. Justice Abdul Hayee Kureshi was never a Judge of the Supreme Court). However, testing the order passed by the learned Rent Controller, on the above judgment of the Hon'ble Supreme Court I am of the view the learned Rent Controller was justified in dismissing the application under section 19(2) of the Ordinance. I may reproduce the relevant portion of the order passed by him:‑‑ "From perusal of record, I observe that opponent was properly served through bailiff. According to bailiff's statement he pasted copy of summons on demised premises. On 17‑7‑1986 the statement of bailiff was recorded on solemn affirmation before Court in which he stated that the pasted copy of summons on demised premises. He also received signatures of two witnesses on spot. Moreover, the opponent was served through daily newspaper `Hurriyat' dated 12th August, 1986, it means that proper mentioned service was held upon opponent but he miserably failed to appear before this Court. In view of above reasons, I am of the view that this application does no merit consideration and is dismissed." In view of the above finding I see no justification to interfere with the order of the learned Rent Controller. At this stage, after the above order was dictated, Mr. G.P. Shaikh came out with a submission that he does not press the appeal if the respondent agrees to give the appellant some reasonable time to vacate the premises. Mr. Muhammad Ziauddin Qureshi Advocate fur the respondent consents to give the appellant six months' time to vacate the premises. 1, therefore, order that the appeal is dismissed as withdrawn. The appellant will vacate the premises within six months. The appellant will also continue to deposit the monthly rent regularly in the Court of Rent Controller. If the appellant fails to vacate the premises within six months from today, he will be liable to be ejected without notice. M.Y.H./A‑322/K Appeal dismissed