2005 PLP 3108 (YLR)

MUSHIR ALAM, J.

Through this petition, petitioner has impugned the judgment, dated 9-2-2004 passed in F.R.A. No.45 of 2001 whereby learned Appellate Court maintained the order, dated 9-2-2002 passed on application under Order IX, rule 13, C.P.C. by the Ist Rent Controller in Rent Case No.1045 of 2001 declining to set aside the ejectment order, dated 25-8-2001 passed ex parte against the petitioner. It is inter alia contended by the learned counsel for the petitioner that, the respondent claimed ejectment of the petitioner from shop situated at Kassim Manzil, Plot No.PR-1/29, Randal Road, Opposite Ancel Saria Hospital, Karachi. It was contended that the respondent has disclosed two address of the petitioner one that of subject premises and other that of business premises. According to the learned counsel no efforts were made to effect the service at the rented premises. According to him ejectment application was presented on 1-6-2001 on alleged refusal service was held good only on the second attempt i.e. 25-6-2001 at the business address. It appears that the endorsement of the bailiff as well as postal authority showed refusal. Service was held good and the ejectment order was pronounced on 25-8-2001. It seems that after ejectment order was allowed. The petitioner on gaining knowledge from respondent moved the application under Order IX, rule 13, C.P.C. seeking recall of the above order. The application was heard and order impugned was passed whereby dismissing the application. Order of Rent Controller was challenged in appeal as referred to above, which did not find favour with the learned Appellate Court. It was contended by the learned counsel that in terms of Rules 105 to 107 Sindh Chief Court Rule read with Order 5, Rule 17, where there is a refusal service though pasting is to be effected and alter mode of the service is to be employed. However no steps were taken to serve the petitioner at shop. It was contended that not a single notice was issued at the subject tenement in respect of which ejectment was claimed. It is therefore, urged that the appellant was deprived of valuable tenancy right in a summary and slipshod manner. Learned counsel for the respondent contended that business address is not disputed. However, learned counsel was unable to satisfactorily reply to the query of the Court as to why notices were not served or attempted at the rented premises on examination of postal and courier receipts it appears same were undelivered. Notices were addressed at the second address and not at the rented shop. The petitioner has made out the case that the Courts below has not exercised the jurisdiction vested in them in a proper manner. For the facts and reasons disclosed above the impugned order of the learned trial Court and judgment of the Appellate Court are set aside. Application under Order IX, rule 13 stands allowed. Ejectment order, dated 25-8-2001 is set aside. Learned counsel for the petitioner and the respondents are directed to appear before the learned trial Court on 27-8-2005. Learned counsel for the petitioner will appear before the learned trial Court along with written statement with advance copy to the respondent and the respondent shall file affidavit-in-evidence within two weeks thereafter with advance copy to the petitioner/opponent. The parties shall not seek any undue adjournment. Learned trial Court shall decide the fate of the application within four months in accordance with law. Any party seeking adjournment shall be burden with cost of Rs.500 (five hundred) for each adjournment. H.B.T./M-264/K Petition allowed.