P L D 1968 Lahore 639 (PLP)

K. E. CHAUHAN, J.‑

Mst. Iqbal Begum (hereinafter called the respondent or landlady) on the 12th of February 1965, filed an application under section 13, subsections (2) and (3) of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959), (hereinafter called the Ordinance), against Siraj Din (hereinafter called the appellant or the tenant) from the shop or shops comprising building No. A/698, situated in Bazar Sammian, inside Texali Gate, Lahore. On 15th of February 1965, this application after the usual formalities, came up for hearing before Raja Muhammad Khurshid, Rent Controller, who issued notice to the tenant for the 25th of March 1965. On 16th March 1965, Wali Muhammad, process‑server, went to the shop in dispute for the service of the appellant. He found the servant of the appellant at the shop. The appellant at that time had gone to Bazar. The process‑server allegedly waited for one hour and recorded a report on the back of the summons, which is to the following effect: This report was never put up before any officer. Anyhow the process‑server says that he made another attempt on the 23rd of March 1965. He learnt that the appellant had just left for his house, so the process‑server went to that house where he learnt from the children that the appellant was present in the upper storey. He called at the appellant, but the appellant concealed himself and did not come out. Thereupon the process‑server affixed a copy of the application‑(and not the summons)‑on the shop‑;and not the house)‑‑which he had earlier visited. The report of the process‑server reads as follows: Along with this report the process‑server filed an affidavit attested by the Clerk of Court on the 24th of March 1965. This affidavit reads as follows: The case came up before the learned Rent Controller on the 25th of March 1965, and he passed the following order:‑ On the 7th of May 1965, the landlady produced three witnesses, namely, P. W. 1, Fateh Muhammad, P. W. 2, Abdul Latif and P. W. 3, Muhammad Sharif, husband and Mukhtar of the landlady, Exh. P. 1, a plan of the house was also produced. After the conclusion of the ex parte evidence the case was adjourned to the 21st of May 1965, for arguments. On the 21st of May 1965, the case could not be taken up for lack of time and was adjourned to the 11th of June 1965. On this last date the appellant filed an application for setting aside the ex parte proceedings. In that application it was stated that the report of the process‑server was collusive, false and fictitious, and that the appellant never evaded service and that during those days he was in Peshawar. It was further disclosed in the application that the landlady had earlier filed two applications which she did not pursue and which were dismissed in default for want of prosecution. Where after, it was averred that she filed the third application in which she got collusive reports from the process‑server. It was, therefore, prayed that the ex parte proceedings be set aside. The learned Rent Controller directed the landlady to file a reply to this application which she did on the 3rd of July 1965. In her written statement she did not deny the fact of earlier two applications having been dismissed in default. On merits she took up the position that the process‑server had rightly affected the "substituted service" on the appellant, because he bad deliberately refused to accept service and that the report of the process‑server was not collusive. Certain other objections were also taken which resulted in framing of three issues in the case but we are not concerned with all of them except the main issue, viz. No. 3, which reads as follows:‑ "Whether the applicant was not served in the original petition. Is there any sufficient cause for setting aside the ex parte proceedings?" The appellant produced Sheikh Muhammad Iqbal (A. W. 1), a salesman who was in his employment for 10 years. He deposed that no process‑server visited his shop. The appellant appeared as his own witness as A. W.

2. The landlady produced three witnesses; R. W. 1 was Wali Muhammad, process‑server, who proved his report and admitted that he had not indicated the number of the shop or the house or the name of the Mohallah in his report. R. W. 2 was Abdul Latif, who deposed that he had signed the report of the process‑server as an attesting witness thereto. He had appeared earlier as well in ex parte evidence against the appellant. R. W. 3 was the husband and attorney of the landlady. The learned Rent Controller on the 12th of February 1966, rejected the application of the appellant. He held that the appellant had taken up the plea that he was in Peshawar during those days but he had not proved that fact by any independent or corroborated evidence. He found that substituted service was effected after making genuine efforts and was a good service as held in Akbar v. Abdul Ghani and others (P L D 1955 Posh. 20). He further held that from ex parte evidence already recorded the allegation of (i) default in rent; (ii) sub‑tenancy; and (iii) need for personal use in good faith had been established. He accordingly directed the appellant to vacate the premises in ‑dispute.

2. The appellant filed an appeal but without any success and the learned District Judge dismissed the same on the 4th of May 1966, holding that the tenant was evading service and that in the circumstances of the case he had been properly served. An argument was raised before him that even though the proceedings may have been ex parte, still the tenant had the right to join those proceedings subsequently when the case was yet pending. The learned District Judge did not accept this plea and rejected the same holding that so long as an order directing ex parte proceedings was not set aside a defendant could not join proceedings later on.

3. The appellant filed a second appeal which also met the same fate and was dismissed by a learned Single Judge of this Court on the 1st of November 1966, who also held that the appellant had been duly served in accordance with law. He also held with reference to Mst. Mukhtar Begum v. Muhammad Hussain (P L D 1963 Lah. 364) that service by affixture was an ordinary mode of service under Order V, rule 17 which had been adopted in this case and that such a service was not a substituted service. The appellant thereafter filed this Letters Patent Appeal which was admitted by a Division Bench consisting of Mr. Justice Muhammad Akram and Mr. Justice Ata Ullah Sajjad, on the 30th of January 1967.

4. The learned counsel for the parties have argued their case at great length and have raised a number of contentions before us which we will presently dispose of.

5. The first point argued by the learned counsel for the appellant was that it is a common ground and an admitted fact that there was no order of the Rent Controller to the effect that service on the appellant should be effected by affixation of notice or summons on his place of residence or business (hereinafter called service by affixture). He submitted that this recourse or method was adopted by the process‑server in this case of his own. He argued in suits in ordinary Civil Courts this may be an implied authority of a process‑server to effect service by affixture as laid down in Order V, rule 17 of the Code of Civil Procedure, and as held in Mst. Mukhtar Begum v. Muhammad Hussain and thus may be included in the ordinary mode of service under the Code, but since the said Code is not applicable to a Rent Controller, who is not a Court, but a persona designata, therefore, the provision of effecting service by affixture‑which the learned counsel described as a highly technical and penal provision should not be implied in the authority of a process‑server under the Ordinance. For the proposition that these provisions are penal in nature, he referred to the A. I. R. Commentaries on the Code of Civil Procedure, Volume II, 7th Edition, edited by Chitaley and Appu Rao under Order V, rule 17, Note 22, footnote 2 on page 2117 where with reference to Muchiram Chand v. Paresh Nath Maity and others (A I R 1956 Cal. 208), Ganeshmal Bhawarlal v. Kesoram Cotton Mills Limited (A I R 1952 Cal. 10), Marotu Guranna v. Kshetri Mohanty (A I R 1944 Pat. 297), Mali Narain Roy Chaudhury v. Sheikh Bajoo and others ((1898) 3 C W N 307) and Gopaldas Girdhardal v. Islu (A I R 1917 Nag. 49) it is written that:‑ "The rule is of a highly penal nature and must be strictly complied with in order to give validity to the service purporting to be effected thereunder." He also referred to a similar commentary of Shaukat Mahmood in Volume II of the Civil Procedure on Order V, rule 17, Note 1, footnote 52, on page 898 where the same proposition and mostly the same case‑law is quoted as cited by Chitaley. 5‑A. We have examined the above‑mentioned cases and though we have not been able to find any observation in them to the effect that the rule is penal in nature, still the opinion seems to be uniform that the provisions of this rule should be e strictly complied with. We have ourselves studied the provisions r of Order V, rule 17, and we are prepared to opine that there is some penal element in them. As for example‑when it is A stated that if the defendant refuses to sign the acknowledgment or where the defendant cannot be found after using all due and reasonable diligence then the process‑server may effect service by affixture‑this is a sort of civil punitive action. If the stage in any given case reaches the pitch of an intentional prevention of service, then that may bring the defendant within the ambit of section 173, P. P. C. as well. See Bhudhua v. Emperor ((1927) 29 Cr. L J 263). We, therefore, find considerable force in the submissions of the learned counsel and are prepared to hold that the provision of effecting service by affixture (as contained in Order V, rule 17, C. P. C.) is of a highly technical and penal in nature and should be very strictly construed and applied. 5‑B. If the provision of effecting service by affixture is of a highly technical and penal in nature‑a proposition which was not disputed by the learned counsel for the appellant‑then we have no hesitation to hold that technical and penal provisions of the C. P. C. cannot be applied to the proceedings before a Rent Controller unless there be some express sanction for the same. Examining from this point of view, we find that there is no section in the Ordinance saying that technical or penal provisions of the C. P. C. should apply to proceedings before a Rent Controller. The only section in the Ordinance which applies C. P. C. is section 16 which reads as follows:‑ "16 (1). For the purposes of this Ordinance and Appellate Authority or a Controller appointed under this Ordinance shall have the same powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence as are vested in a Court under the Code of Civil Procedure, 1908. (2) The Controller shall for the purpose of section 480 of the Code of Criminal Procedure, 1.898, be deemed to be a Court." This section nowhere says that all the provisions and especially the technical or penal provisions of the C. P. C. shall apply in the matters of service of the tenants or other respondents before a Rent Controller. The above section so far as relevant for the present case, is confined to summoning and enforcing the attendance of witnesses and compelling the production of evidence by exercise of the same powers as are vested in a Court under the Code of Civil Procedure. This has reference to Order XVI, rule 10 (3) where to compel summoning or attendance of a witness, a Court can issue a proclamation to that effect and if it is not heeded to, then it can issue bailable or non‑bailable warrants, or attach the property or impose a in under Order XVI, rule

12. It is only the provisions which: have been made applicable for the purpose of procuring evidence alone and not the provisions of Order V, rule 17, C. P. C. On the own language of section 16 of the Ordinance, therefore, we have no hesitation in holding that it does not apply all the provisions of C. P. C. but only limited ones as has held in Faqir Muhammad v. Dr. Muhammad Yasin and 2 others (P L D 1964 Lah. 686) and Khadim Mohy‑ud‑Din and another v. Ch. Rehmat Ali Nagra and another (P L D 1965 S C 459).

6. When confronted with this situation, the learned counsel for the contesting Landlady submitted that if section 16 of the Ordinance is not applicable to the facts and the circumstances of the present case, then C. P. C. will be applicable by virtue of section 141 of the said Code. This contention again has no force for various reasons. Firstly, because if section 16 of the Ordinance implies that whole of the C. P. C. is not applicable and only its limited provisions are applicable then to hold that by virtue of section 141 whole of the C. P. C. is applicable, will be doing that indirectly which the Legislature has directly prohibited. Secondly, a perusal of section 141, C. P. C. which reads as follows:‑-- "The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable in proceedings in any Court of Civil jurisdiction." will show that it purports to apply procedural provisions of the C. P. C. to a Court of Civil Jurisdiction. There are high and abundant authorities now available to show that a Rent Controller is not a Court. See Khadim Mohy‑ud‑Din and another v. Ch. Rehmat Ali Nagra and another, Ibrahim v. Muhammad Rafiq (P L D 1964 Lah. 644), Faqir Muhammad v. Dr. Muhammad) Yasin and two others, Mst. Aziz Begum v. Sh. Nur Muhammad .and others (P L D 1962 Lah. 887) and The Corporation of the City of Lahore v. Mst. Fahmida Begum (P L D 1962 Lah. 258). In this view of the matter, section 141, D in its very terms will not cover a Rent Controller so as to apply C. P. C. to him. Thirdly, all that section 141 says is that it is only the "procedure" provided in this Code, i.e., the procedural provisions which alone can be applied to a Court of Civil Jurisdiction. For authorities that it is only a procedural provision which will apply by virtue of this section and that this section refers to procedure and procedure alone, reference can be made to Sm. Bhagwanti v. New Bank of India Ltd., Amritsar (A I R 1950 East Pb. 111),District Judge, Hoshangabad v. Seth Shri Kisan Das and others (A I R 1942 Nag. 8), Ma Ngwe Nyun v. a Thwe (A I R 1928 Rang. 137), Hureenath Koondoo v. Modhoo Soodun Saba and another ((1873) 19 S W R 122) and Ninga'ppa v. Ganga'wa (I L R 10 Bom. 433). This means that it does not confer any substantive right net expressly given elsewhere by the Code. As for example, a right of appeal cannot be claimed merely on the strength of section 141; Gaja v. Muhammad Farukh and others (A I R 1961 All. 561), Sm. Bhagwand v. New Bank of India Limited Amritsar, Tirathdas Dharmadas and another v. Sh. Parmeshwaribai w/o Kundannial (A I R 1943 Sind 223), Para,surama Ayyar and another v. S. Shier and others (I L R 27 Mad. 504) and Ninga'ppa v. Ganga'wa. Nor can the right conferred by Order 1X, rule 8, C. P. C. be claimed because that is a substantive right Sita Ram Khandu v. Bapurao Ma Kandroo and others (A I R 1953 Nag. 153) nor a right to review Debi Prasad and others v. Khelawan and others (A I R 1957 All. 67), Ningthoujam Maugi Singh and others v. Oinam lbomeha Singh and others (A I R 1957 Manipur 39) and Anantharaju, Shetty, v. Appu Hegade (A I R 1919 Mad. 244). Nor a right to proceed by way of execution against a surety who is not a party to the proceedings on the analogy of section 145 of the Civil Procedure Code Sm. Bhagwanti v. New Bank of India Limited Amritsar and Khushiram Tejbhandas v. Jhalibai and others (A I R 1926 Sind 35) per observations of Rup Chand, J. Against the provisions of section 90, C. P. C. or Order XIV, rule 6 or Order XXX, rules 1 to 5 are not purely matters of procedure, they being provisions which deal with the powers of Civil Courts to deal with the matter which came up before them Sm. Bhagwanti v. New Bank of India Ltd., Amritsar. On the other band, matters provided in sections 10 and 11, C. P: C., In the goods of Mrs. Lilian Singh (A I R 1943 Cal. 19). In the matter of Arbitration between the firm of Jai Narain Babulal v. Firm of Narain Dass Janimal (A I R 1922 Sind 6) or Order XXIII, rule 1, Ganpat Kinushet Sonar v. Vithal Bhikan Patil (A I R 1942 Bom. 57) or Order XXXIX, rule 1, E. D. Sassoon & Company v. Mangal Chand and " others ((1909) S L R 128), are matters of procedure and may, therefore, be applied to proceedings in a Court of Civil Jurisdiction. It has been held that penalties provided in Order XXII, rule 4 cannot, without any express direction in that behalf, apply, as for example, to writ petition, as per Muhammad Yaqub Ali and Cheema, JJ. in Chand and others v. Abdul Ghaffar and others (P L D 1965 Lah. 596). We need not dilate upon this point any further and the authorities quoted above are sufficient to establish that it is a procedural provision alone, which can be applied by virtue of‑ section 141, C. P. C. The implied authority of a Process‑server to effect service by affixture as given in Order V, rule 17, C. P. C., is not a mere matter of procedure but is a matter of substantive power and jurisdiction, and also being highly technical and penal in character cannot be invoked on the bare working of section 141, C. P. C. In this context we may also observe that in Order V, rule 17 of C. P. C. One thing is noteworthy when it is compared with Order V, rule

20. In rule 17 as read with rule 19 a power is given to a Court to confirm that a service already effected by a process‑server in a particular manner without any prior order of a Court to that effect, e.g. by affixture is a valid service and acceptable to the Court, while in Order. V, rule 20, a power is given to a Court to direct before‑hand that service may be effected in such and such manner, e.g. by a substituted method. The very nature of the provisions of rule 17 thus shows that it is not a mere matter of procedure but of jurisdiction and authority both of the process‑server as well as the Court concerned. Such a jurisdiction unless expressly conferred cannot be considered to vest in a Rent Controller merely on the analogy of section 141, C. P. C.

7. Learned counsel for the contesting landlady referred to us to Muhammad Azeem and others v. Muhammad Nawaz and others (P L D 1961 Lah. 137), Sh. Muhammad Nawaz v. Muhammad Azeem and others (P L D 1961 Lah. 788) and Syed Nafis Ahmad Zaidi v. S. M. Hussain (P L D 1964 Lah. 536) to show those authorities it had been held that Civil Procedure Code applied by virtue of the provisions of section 141, C. P. C. to proceedings before a Rent Controller. We will refer to these authorities later on but we may observe at this stage that if it is suggested that these authorities say that Civil Procedure Code applied per force of its section 141, then in view of the Supreme Court's ruling reported in Khadim Mohy ud‑Din and another v. Ch. Rehmat Ali Nagra and another, this will not be a correct law any longer. Moreover, a general reading of these authorities shows that in none of them the point was considered that the Rent Controller is not a Court and as to what should be its impact on the provisions of section 141, C. P. C. which apply only to Courts. In view of the dictum o P their Lordships of the Supreme Court in Khadim Mohy‑ud‑Din's case that a Rent Controller is not a Court, the aforesaid authorities, which impliedly proceeded, on the contrary assumption, can no longer be held to be a good law. If there was scope for any further debate we might have considered the advisability of referring this point to larger Bench, but in view of the authority of the Supreme Court Khadim Mohy‑ud‑Din and another v. Ch. Rehmat Ali Nagra and another, this is not any more necessary; because the observations in the said case are sufficient to support the view which we have taken. The actual passages in the Supreme Court's judgment are as follows:‑ "From the provisions of the Ordinance it appears that though under section 16 the `Controller' has been given powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence, he is not bound in every case to follow the procedure as laid down in the Code of Civil Procedure. He has been given powers under sections 4, 10 (3) and 12 to make orders after holding such inquiry as he thinks fit. In such cases the question of nature of inquiry is left to him. That means that in such enquiries the parties have no right to insist on production of such evidence which they desire to adduce in support of their case. Therefore, no machinery is prescribed for summoning witnesses or compelling production of documents in such enquiries. In short these enquiries may be such as are conducted by an Executive Officer. Furthermore, the Controller has been given power to regulate the use by a landlord of his own property, inasmuch as within the Urban Area the landlord may not convert a residential building into a non‑residential building. The power thus conferred on the Controller would appear to be a purely executive. Then subsection (3) of section 13 says that before putting the landlord in possession of the tenanted premises, the Controller should be satisfied that the claim of the landlord is bona fide But there is no express mention of any enquiry by the Controller. If the word `satisfied' imports the necessity of an enquiry, even then it cannot be said that in holding such enquiry he will be bound by any particular procedure." We, therefore, conclude from the foregoing examination of the relevant provisions of the Ordinance that though some of the functions of the Controller are judicial in character, but yet he is not required to act judicially in discharging many of his functions. In these circumstances, it will be difficult to hold that the Controller while performing his functions under this Ordinance acts as a Court. At the most it may be said that he acts in a quasi judicial capacity." In the above passages, the portions *underlined, clearly suggest that the Rent Controller is not a Court, nor is he bound in any case to follow the procedure laid down in the Code of Civil Procedure. The question of the nature of enquiry is left exclusively to him so much so that the parties have no right to insist on production of such evidence which they desire to adduce in support of their case. His position is just like a quasi judicial officer and his enquiry, if any, is not bound by any particular procedure. These observations are a clear reply to the suggestion that the procedural provisions of the Civil Procedure Code should apply to a Rent Controller per force of section 141, Civil Procedure Code.

8. We may have point out that the law which was declared by the Supreme Court in Khadim Mohy‑ud‑Din and another v. Ch. Rehmat All Nagra and another was, as a matter of fact, laid down earlier as well in a Full Bench ruling of this Court reported in P L D 1952 Lah. 258 wherein the actual passage runs as follows:‑ "Even though, therefore, all Subordinate Judges and District Judges have been invested with the relevant powers under the Act, the inference by no means follows that they are to function as Courts. The Controller does not appear to be armed with all the powers of a Civil Court under the Act and, therefore, does not seem to be bound by all the provisions of the Code of Civil Procedure." In the said case it was further laid down that "a Rent Controller had no jurisdiction to issue temporary injunctions or appoint receivers." We want to make it clear that when we have said that Civil Procedure Code does not apply to a Rent Controller per force of section 141, C. P. C., we do not intend to lay down that if the Rent Controller so chooses he cannot adopt the "procedure" laid down in the said Code with such modifications as the circumstances warrant. This will be the choice of the Rent Controller and if he wants to follow that procedure there is no bar on his part to do so, but then it is he who is to so direct and it is his and his privilege alone and not as for example of a process‑server to apply any technical or penal provision of the Civil Procedure Code or make selection even from procedural provisions. Had the Rent Controller himself directed before hand that the service by affixture or as for example by proclamation or advertisement should take place, there might have been no defect in the matter. But in the absence of any such before‑hand direction, a process‑server could not of his own select a mode of service as an alternate to a personal service in the ordinary sense and nor could the Rent Controller rectify the same.

9. Taking up P L D 1961 Lah. 137, that was a case in which a point arose as to whether a Rent Controller had jurisdiction to bring on record the legal representatives of a deceased tenant. It was held that the Rent Controller had such a power and the learned Judge who decided the case sought support for this proposition from section 141, C. P. C. (though on the facts of that case he took the view that since the right to sue did not survive after the death of the tenant, his legal representatives could not have been brought on record). He held as follows:‑ "With regard to the merits of the appeal, the learned counsel for the appellant urged that as there was no provision in the West Pakistan Urban Rent Restriction Ordinance that a legal representative of a tenant against whom proceedings under the Ordinance had been lodged could be brought on the record, there was no power in the Rent Controller to implead the legal representatives of a tenant, who happened to die during the pendency of the proceedings. I cannot accept this argument because I am of the view that section 141, C. P. C., which is in the following terms:‑ `The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction, has application to proceedings taken under the West Pakistan Urban Rent Restriction Ordinance, 1959. It will be noticed that the language used in this section is comprehensive. If, therefore, the proceedings before the Rent Controller are proceedings of a civil nature, this section could be invoked for regulating the procedure with regard to the trial of the application presented to the Rent Controller. If the con tention of the learned counsel for the respondent be accepted, it will have to be held that the Rent Controller is not bound by any fixed rules of procedure and if that were so, there would be nothing in law to prevent a Rent Controller from following any procedure that he liked, with the result that different Rent Controllers would be following different forms of procedure and the result will be chaos. Section 141, C. P. C., has been applied to various kinds of proceedings of a civil nature, though the law under which those proceedings were taken did not specifically make section 141, C. P. C., applicable to those proceedings. I would, therefore, hold that the contention of the learned counsel for the' appellants that if a tenant happened to die during the pendency of proceedings under the West Pakistan Urban Rent Restriction Ordinance, 1959, the proceedings terminated and could not be continued by bringing his legal representatives on the record is without force." With great respect, we do not agree with the view of the learned Judge that section 141, C. P. C., has application per its own language to proceedings before a Rent Controller. In this authority emphasis has been laid on the concept that since proceedings before a Rent Controller are of civil nature, therefore, section 141, C. P. C. applies. It is to be pointed out that the fact that section 141 applies only to Courts and not to persona designata or executive officers had been lost sight of. The above observations of the learned Single Judge are not a correct enunciation of law as they are contrary to the dictum of the Supreme Court in Khadim Mohy‑ud‑Din and another v. Ch. Rehmat Ali Nagra and another and even to the earlier Full Bench ruling in Corporation of the City of Lahore v. Mst. Fehmida Begum. Apart from the generality of the observations of the learned Single Judge in the said case, we otherwise agree with him that if a Rent Controller brings on record the legal representatives of a deceased tenant, he has an authority to do so as is so held in Muhammad Azim and others v. Sh. Muhammad Nawaz and others.

10. Taking up Sh. Muhammad Nawaz v. Muhammad Azeem and others this was a judgment in the above case in the Letters Patent Appeal where the learned Judges in paragraph 11 of the judgment endorsed the view of the learned Single Judge in Muhammad Azeem and others v. Muhammad Nawaz and others. This authority so far as relevant regarding section 141, C. P. C. suffers from the same comments which we have made against the judgment of the learned Single Judge in that case. Before parting with the subject, we may observe that the cases reported in P L D 1961 Lah. 137 and P L D 1961 Lah. 788, went to the Supreme Court in P L D 1966 S C

182. The Supreme Court decided the appeal on the sole question that since the legal representatives of the deceased tenant claimed tenancy through their father, they were bound by his defaults also, and as such were a necessary party in the case and rightly brought on record. The Supreme Court thus decided the cases from this point of view and made no observation as to the applicability of C. P. C., to the proceedings before a Rent Controller which subject is independently covered by the judgment reported in Khadim Mohy‑ud‑Din's case.

11. As regards Syed Nafis Ahmad Zaidi v. S. M. Hussain, this followed Sh. Muhammad Nawaz v. Muhammad Azim and others about which we have already offered our comments. Here we may state with respect that a more careful enunciation of law is contained in Faqir Muhammad v. Dr. Muhammad Yasin and two others where it was held at page 690 as follows:‑ "There is no denying the fact that the Code of Civil Procedure is applicable to the proceedings under Ordinance VI of 1959 for limited purposes which are contained in sections 16 and

17. By virtue of them, an Appellate Authority or a Rent Controller, has power to summon and enforce attendance of witnesses to execute the orders under section 10 or 13 and every order passed in appeal under section

15. It was, therefore, not obligatory on the Rent Controller to frame any issue. If a Rent Controller frames issues, it is done only to facilitate trial. The failure of a Rent Controller to frame issues in any case, therefore, does not furnish a ground to urge that the Rent Controller has in any way acted illegally. The Rent Controller is a special tribunal constituted under Ordinance VI of 1959. He is not a Court stricto sensu and it was so held in Corporation of Lahore v. Fahmeeda Begum P L D 1952 Lab. 258 and Mst. Aziz Begum v. Sh. Nur Muhammad and others P L D 1962 Lab. 887 and the pro ceedings before them cannot be challenged, in my opinion, .on the ground that they failed to observe the procedure prescribed for the Civil Courts. I may with advantage refer to the observations of Qadeeruddin, J. in Khuda Bakhsh v. Yida Hussain and others P L D 1963 Kar. 446 that:‑- 'Special tribunals are often appointed so that the strictness .of elaborate technicalities may not hamper their proceedings. 'If they are by circuitous arguments subjected to the same strictness, irrespective of the object of legislation of the ends of justice and without an express or implied but definite requirement of law, it may amount to indirectly frustrating tithe purpose of their creation. The fact, that no issue was framed, by itself will not, therefore, make the order of the Courts below illegal or irregular."

12. The upshot of the above discussion is that the action ,of the Process‑server in effecting service by affixture was illegal, :ultra vires and without lawful authority. This act could not have been ratified or validated by the Rent Controller later on B because it is well‑settled that there cannot be a ratification of an ultra vires act. See Secretary, Notified Area Committee, Okara v. Rai Bahadur Kidar Nath and others (137 I C Lah. 253). Same principle was laid down by the Supreme Court in Yousaf Ali v. Muhammad Aslam Zia and two others (P L D 1958 S C 104) wherein it was held that where the basis of an order is a void act or order then all superstructure built on the said order or action is itself void. The actual passage in the Supreme Court's judgment reads as follows:‑-- "Where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void and non‑existent. And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded." Respectfully following the said principles, we hold that since the orders of the Rent Controller, the District Judge and the learned Single Judge are all based on the ultra vires act of the process‑server they must fall when it is declared that the action of the process‑server was totally void; illegal and in excess of his authority. Service by affixture in the circumstances of this case was no service and no order could be passed on that basis.

13. The second point argued by the learned counsel for the appellant was that assuming, without conceding, that the provisions of Order V, rule 17, C. P. C., were applicable even then the service had not been effected in accordance with the said rule as read with rules 14 to

16. These rules read as follows:‑ "Order V, rule 14.‑Where in a suit to obtain relief respecting, or compensation for wrong to immovable property, service7 cannot be made on the defendant in person, and the defendant has no agent empowered to accept the service,, it may be made on any agent of the defendant in charge of" the property. Order V, rule IS.‑Where in any suit the defendant cannot be found and has no agent empowered to accept service of the summons on his behalf, service may be made on any adult male member of the family of the defendant who is residing with him. Explanation: Order V, rule 16.‑Where the serving officer delivers or tenders a copy of the summons to the defendant personally or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgment of service endorsed on, the original summons. Order V, rule 17.‑Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledg ment, or where the serving officer, after using all due and reasonable diligence, cannot find the 'defendant, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed." The learned counsel argued that since this was a case seeking relief respecting immovable property, therefore, service should have been effected under Order V, rule 14, C. P. C. on the agent of the appellant, who was incharge of the shop in question, namely, Sh. Muhammad Iqbal (A. W. 1) whom the Process‑server described as a servant of the appellant. The said witness stated that he was in the employment of the appellant for the last ten years and used to sit on the shop in dispute. It is obvious that his status was nothing more than that of salesman and it is well‑settled that a salesman cannot be called) an agent incharge of the property. Messrs Idrees Barry & Company v. Commissioner of Income‑tax, West Pakistan (P L D 1900 Lah. 852) clarifying Muhammad Idrees Barry & Co , Lahore v. The Commissioner of Income‑tax, Punjab and N.‑W. F. P., Lahore (P L D 1957 Lah. 270) Again an agent mentioned in Order V, rule 14 is that agent who is recognized by C. P. C. in Order 111, rule 2 which reads as follows:‑ "

2. Recognised agents.‑The recognized agents of parties by whom such appearances, applications and acts may be made or done are‑ (a) persons holding powers of attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties ; (b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorised to make and do such appearances, applications and acts." According to this provision, agents are of two kinds, one who hold written‑authority for the purpose; second those who act for such principals who do not live within the local limits of the Court's jurisdiction. Obviously, A. W. 1 was not a person of any of these descriptions and could not be called an agent of the appellant and incharge of the property in question. In Nagary Rasappa Setti v. Namburi Ven Kataratnam (21 I C 922) it was held that a gumashta cannot be called an agent of the principal. In Sheo Charan Das v. Baij Nath Singh (A I R 1920 Oudh 220) it was held that a chela cannot be called an agent. Similarly, it was held in K. P. Chaganlal Oil Mills v. The Commissioner of Income‑tax, Hyderabad (I L R 1955 Hyd. 80) and Ram Soonduree D.issia v. Renee Surut Soonduree Debia ((1872) 17 South W R 33) that employees or persons merely looking after the affairs and gomashta and a am‑mookhtiars were not agents. In Ram Gopal Kanhia Lal v. Narain Das and others (A I R 1918 Lah. 295) it was held that service of notice on the munim of a party resident within jurisdiction was not sufficient. In Jagadesh Prasad Khakalia v. Firm Jesraj Talakchand Lalchand (A I R 1954 Assam 223), Reliance Marine Insurance Co. Ltd. v. Muhammad Omar Muhammad Yaqoob (A I R 1926 Cal. 1030) and Papamma Rao Garu and others v. Revenue Divisional Officer, Guntur (A I R 1918 Mad. 589) it was held that mere managers are not agents of their principals. An agent is one, who can enter into a contract with a third party and bind his principal Mevsrs Idrees Barry & Co. v. Commissioner of Income‑tax, West Pakistan, Saccharin Corporation Ltd. v. Chamische Fabrik Van Heyden Aktiengesellschaft ((1911)2KB516) and Okura & Co. Ltd. v. Forsbacka Jernverks Aktiebolog ((1914)1KB715). A. W. 1 not being a person falling under this category, the alternate argument of the learned counsel for the appellant that service should have been effected on him has no force.

14. The third argument of the learned counsel for the appellant was that service could have been effected on any adult male member of the appellant who resided with him as laid down in Order V, rule 15, C. P. C. The appellant was present in person in Court and when this argument was advanced, we asked him as to whether any adult male member of his family was residing with him on the relevant dates. He replied in the negative and disclosed that besides his minor daughters he has no adult male member in the family and nor any such person was residing with him on the said dates. In this view of the matter, the point which was sought to be raised on the basis of Order V, rule 15, C. P. C., cannot hold water.

15. The fourth point argued by the learned counsel for the appellant was that; (i) all the ingredients necessary for effecting service by affixture as laid down in Order V, rule 17, C. P. C. neither existed; (ii) nor was the service effected strictly in accordance with that rule. He submitted:‑ (a) that it was not a case of any tender of summons having been made to the appellant or his agent or their refusal to sign the acknowledgement of the same; (b) that nor was it a case where the serving officer using all due and reasonable diligence, `cannot find the defendant'; (c) that the rule requires that it is a copy of the summons which is to be affixed and not as for example a copy of the plaint or application; and (d) that according to the pro forma prescribed in submitting an affidavit by the Process‑server as contained in Appendix 1 of the High Court Rules and Orders, Volume IV, Chapter 7, Part B, a process‑server is to mention the time when he calls on a defendant, as also the identity of the house visited by him. The learned counsel submitted that these requirements were not fulfilled in this case.

16. Taking up the point at (a) above, it is a common ground that it does not arise in the present case so we need not detain ourselves on it.

17. As regards the point at (b) according to our opinion it has a great force. The reports and the endorsements of the process‑server do not show that the appellant "could not be found". The implication of the phrase "defendant cannot be K found" in Order V, rule 17 is that the whereabouts of the defendant are not known or that he is not traceable or cannot be located. This phrase cannot be applied when the whereabouts of the defendant are known or where he is actually available and can be found but otherwise evades service or keeps out of the way for the purpose of avoiding service. This is so clear from the wording of Order V, rule 20 which reads as follows:‑ "

20. Substituted Service.‑(1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the 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 the summons to be served by affixing a copy thereof in some conspicuous place in the Court‑house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. (2) Effect of substituted service.‑Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally." (3) Where service substituted, time for appearance to be fixed.‑Where service is substituted by order of the Court, the Court shall fix such time for the appearance of defendant as the case may require." If this rule is compared with rule 17 (reproduced in an earlier part of this judgment in extenso) the difference which we have pointed out becomes clear. Rule 17 talks of cases where a defendant refuses to sign an acknowledgment or cannot be found. Rule 20 deals with cases where a defendant evades service. In cases of evasion of process, the service is to be effected in a substituted manner, while in cases contemplated in rule 17 it can be effected by affixation. The view which we have taken was also taken in Ganeshmal Bhawarlal v. Kesoram Cotton Mills Limited where it was held at page 14 column 2:‑-- "Order 5, rule 20 of the Code provides for such a case and the plaintiff may obtain an order for substituted service. It may be impossible to comply with rule 17 because of other wrongful acts of the defendant. He may be present at his residence but may be evading service. He may forcibly prevent affixation of copy on the other door. 1n all such cases the defendant must be served under rule 20 by obtaining an order for substituted service." In Le Grand v. Fairall (86 Lowa 211) the facts were that a defendant lady was lying ill in her house which the process‑server visited but he could not have access to her. The law on the subject was that if a defendant "could not be found within the country of his residence" then a substituted service could be effected on him. On these facts it was held that since the lady was in her house it could not be held that she "could not be found". The case quoted hereinbefore was not available to us but we found its mention in Kshirods Sundari Dasi and another v. Nabin Chandra Saba (19 C W N 1231). In this Calcutta authority the facts were that a summons was issued to a Hindu Parda nashin lady, to whom according to the custom and con ventions of the Hindu Family system, the process‑server could have no access even though she was present in her house. She had no agent either to accept service on her behalf. The learned Judges who decided that case held that that was a situation where the defendant‑lady could not be found under Order V, rule 17, C. P. C. The case of Le Grand v. Fairall was cited before them but they refused to follow it holding that there the language was that "a defendant cannot be found in his county of residence" and therefore, such a phrase was different from the one used in Order V, rule

17. They also held that they would prefer to apply a wider interpretation of the phrase, "cannot. find the defendant" in Order V, rule 17, C. P. C. and not a narrow one. When told that there was a great danger in adopting such a wider construction, they opined that there was no such danger inasmuch as a Court will always exercise wise jurisdiction under Order V, rule 19 before confirming a service by affixture as a valid service and expected that even in a case where apparently the situation may be as was involved in the case before them, a Court will be well advised to ignore such service and may direct service by post, etc. There is not much case‑law on the subject, but we are of the opinion that the view taken in 19 C W N 1231 is too broad a view and there are involved too many risks in accepting the same. Probably it was for this reason that the Calcutta High Court thereafter in 1927 changed its rule so as to make it of the type that if a Pardanashin Lady was present in the house then she could not be considered as "cannot be found". Anyhow in A I R 1952 Cal. 10 Bachawat, J. struck an entirely different note and held that in cases where a defendant is present in his house but evades service, then in all such cases be must be served under Order V, rule 20 by a substituted service. We think that that is a more reasonable view inasmuch as it maintains distinction between Order V, rule 17, and Order V, rule 20, because, otherwise both rules will override one another and their scope will be confused. Moreover if the proposition that provisions of Order V, rule 17 are highly technical and penal is correct then it would be consistent with the same line of reasoning as not to give a wide scope or rope to those provisions or to unnecessarily enlarge them. This can be illustrated by various examples. Suppose a defendant is present in his bungalow but his servant does not allow access to the process‑server so as to go inside the bungalow. We have already held earlier that a servant is not an agent of the principal. In these circumstances, if the process‑server affixes the summons and goes away on the pretence that he cannot find the defendant, will it be consistent with the spirit and purpose of the law to accept it as a valid service. Similarly if a defendant is sick in his house and the Doctors have temporarily prohibited visits to him, can it be said that the defendant "cannot be found"? Again the answer is no because such a temporary difficulty in having access to the defendant cannot be considered as a permanent impossibility in finding the defendant, which with exercise of all due and reasonable diligence cannot be overcome. The phrase, "cannot find the defendant" if read along with the phrase, "after using all due and reasonable diligence" will show that it should b such a difficulty which is in the matter of finding the defendant and not which arises in effecting service after having found the defendant. The word "find" as used in the Shorter Oxford Dictionary 2nd Edn., Vol, I, p. 700, Col. 2 inter alia contains the following meanings:‑ "To come across, fall in with, light upon. Primarily of persons; hence of things viewed as agents.

2. To" discover the whereabouts of (something hidden or not previously observed) ME.

3. To come to have, receive, get OE . . . . .

5. To discover on inspection or consideration (of F. Trouver). Also reft. M. E. . . . To discover or attain by search or effort OE.; also reft. 1647 . . . ." One of the meanings as given above is to discover the where abouts of something. It is in that sense that this word is used in Order V, rule 17, and not in the sense of "meeting" the defendant. Once the whereabouts of a person have been known and he is located and discovered to be present in a particular place, then he can be said to have been found out and in this context it cannot be said that the process‑server cannot find him. This difficulty with the process‑server may later on feel, might be in physically contacting him, which is a matter different from finding or not finding a person. In the instant case, the reports of the process‑server suggest that he located both the place of residence as well as the place of business of the appellant. On the first occasion on the 16th of March 1965, when the process‑server went only to the place of business of the appellant he learnt from the munshi that the appellant was temporarily absent and had gone to the bazar. He allegedly waited for about one hour and then came back. It is well‑settled that a person cannot be said to be "not found" merely by reason of his being temporarily absent to another place Nihala and others v. Kazam Singh (A I R 1924 Lah. 233), Mathura Singh v. Sheo Mohan Prasad (A I R 1924 Oudh 237), Nathu v. Sarup Singh (A I R 1917 All. 368), Subramania Pillai v. Subramania Ayyar (I L R 21 Mad. 419), Vellayappa Chetty v. Veerappa Chetty and another (AIR 1914 Mad. 159), Chintanman Pawar v. Pannalal and another (A I R 1931 Nag. 119), Gopiram Agarwalla v. Ist Addl. Income‑tax Officer and others (A I R 1959 Cal. 420); Tripura Modern Bank Ltd. v. Bansen & Co. (A I R 1952 Cal. 781), Kung Behari Lal v. Sarju Prasad and another (A I R 1916 All. 337); Pandit Ram Harachk v. Babu Sarju Prasad and others (161 C 600), Mohan Lal Kojriwal v. Sunder Lai Nand Lal Saraf and another (A I R 1949 E Pb. 295) and Dina Nath Pali and others v. Upendra Nandan Das Mahapatra and others (A I R 1924 Cal. 1004). From the first report of the process‑server a finding of "cannot be found" could not, therefore, be recorded against the appellant. On the second occasion on the 23rd of March 1965, the process server again went to the shop of the appellant where he learnt that the appellant had gone to his house. He then went to the house and allegedly learnt from the children that the appellant was in the upper storey. He alleges to have called the appellant but the latter did not come out and rather concealed himself. Here again the appellant had been found out and no question of "cannot be found" arises in this context. Assuming, however, without conceding that at that time the appellant was still not found even then it was there where the stage arose to see as to whether "after using all due and reasonable diligence" the process‑server could not have contacted or found the appellant later on. We are of the opinion that with little more reasonable deligence the process‑server could not have contacted the appellant. As for example the date in the case was the 25th of March 1965, and there was still a day to contact the appellant. He could have been contacted during the intervening period either at his shop or his house. From one solitary attempt of calling the appellant from his house, the sphere of "all due and reasonable diligence" was not exhausted and there was scope still to utilise a little more prudence as it was not a case of total impossibility in having access to the appellant. On the admitted facts of the case, therefore, no case under Order V, rule 17 was made out and the order of proceeding ex parte against the appellant was clearly unwarranted. It may here be pointed out that all the authorities below have treated it as a case of evasion of service and not of the kind of "the defendant cannot be found". If this was a case of evasion of service then as analysed earlier, it more appropriately fell under rule 20 and rule 17 could not have been invoked.

18. As regards the point at (c), this has again a considerable force. As laid down in various authorities and especially those l and as a matter of fact reproduced in Para. 5 of this there is no difference of opinion on this point)‑the provisions of Order V, rule 17 are mandatory and should be strictly construed and applied. What the rule requires is that the process‑server is to affix a copy of the summons and not of the plaint or application. In the report and the affidavit of the process‑server reproduced earlier, it is stated that he affixed only the copy of the application and not the summons or the notice. No doubt when the process‑server appeared as a witness during the subsequent proceedings, he drifted from this position and stated that he affixed a copy of the summons. But this is a subsequent statement while we are required to see the case on the basis of the report or endorsement of the process‑server and his affidavit on which the learned Rent Controller on 25‑3‑1965, held that proper service had taken place. The fact that it is a summons which is mandatory to be affixed is clear from the wording of rule 17 but if authority be needed reference may be made to Dalu and another v. Khema and others (A I R 1951 Raj. 132) where it was held as follows at page 133: "In the present case from the report of the process‑server dated 4‑3‑1949, it is clear that he did not use all due and reasonable diligence in finding Hema. He was known to have gone to Udaipur and it cannot be said that he could not be found after the exercise of all due and reasonable diligence nor diligence nor did the process‑server try to find out whether there was any agent empowered to accept service of the summons on behalf of Hema, as there was any other person on whom service could be made. Under these circumstances, the process‑server was not entitled to affix a copy of the summons on Hema's house. But when the affixing of the copy of summons is not to be found in the report, dated 4‑3‑1949, the only thing mentioned is that a copy of the plaint was affixed. Rule 17, Order V requires that in order what the service of summons might be considered to be due service a copy of summons should be affixed. The report of the process‑server shows as said above that only a copy of the ‑plaint was affixed which was not due service according to law. I cannot, therefore, find any fault with the order of learned Munsif." The view which we have taken has an implied support from a decision of the Supreme Court in The Punjab Province (now West Pakistan) v. Kanwar Latif Ahmad Khan (P L D 1958 S C (Pak.) 195). That was a case where the plaintiff filed an application to sue as a pauper. Notice of this application was sent to the defendant who chose not to appear. The trial Court granted the pauper application and con sidering the service in pauper application as service in the whole suit, passed an ex parte decree against the defendant. No fresh summons was issued with regard to the main suit to the defendant. The Supreme Court held that such an ex parte decree was illegal and set that aside. The passage which we are going to reproduce from this judgment not only laid emphasis on the necessity of issuing summons but also on the form in which the summons ought to have issued :‑ "The trial Court should have after deciding the question of pauperism and registering the plaint, issued a proper summons to the defendant under form No.1 or 2, Appendix `B' in the First Schedule to the Civil Procedure Code an required by section 27 and Order V, rule 1, of the Code of Civil Procedure, calling upon him to answer the claim. As this was not done the whole trial was vitiated and the ex parte decree cannot be sustained." The essential formalities of a summons as referred to in Order V, rule 1, C. P. C. were also emphasised and held as mandatory in Mst. Mahboob Jan v. Sher Afzal (P L D 1952 Lah. 552). In that case the point gained importance because it was held that if summons was not in a proper form then it will leave scope for frauds, etc. The actual passage that occurs at page 554 of the report reads as follows:‑ "What is more remarkable in the sommons, however, is the fact that it bears neither the signature of the presiding officer nor the seal of the Court. For this the Naib Sheriff has given no explanation, and the argument, therefore, that a blank form of summons was filled by the Naib Shariff in conspiracy with the plaintiff's father is not without force. Apart from the fact that this will strengthen the presumption against the genuineness of the summons, it is clear that any service effected by such a summons cannot be regarded as service within the contemplation of Order V, rules 1 and 10 of the Code of Civil Procedure." In Ramzan and another v. Illahi Bux and others (P L D 1958 Lah. 45,) the facts were that a process‑server duly served a summons on a defendant in a suit, but did not give him a copy of the plaint. This Court held that in the Civil Procedure Code there was no provision exonerating appearance of a defendant to whom a summons may have been delivered, but not a copy of the plaint, because all that the Code required was to give a copy of the summons to the defendant. Consequently, it was held that service of summons without a copy of the plaint was quite valid. Following this argument to its logical conclusion the converse must also tie true, and it will have to be held that where only a copy of the plaint is given or affixed, but no summons is served on a defendant or affixed as required in Order V, rule 17, then that would not be a proper service. Respectfully following the view deducible from the authority quoted above, we are of the view that when a summons is not axed, and in its place some other document is affixed‑then the case vis‑a‑vis, the defendant stands on the same level as if no summons are issued to him or as if no due service has taken place.

19. As regards the point at (d), this also seems to be correct. According to the pro forma of affidavit as provided in Appendix 1 of the High Court's Rules and Orders, Volume IV, Chapter 7, Part B, a process‑server must denote the time of his visit as also the particular of the locality and the house he visits. No doubt the said pro forma does not deal with service by affixture but it covers the various visits which a process‑server may have made. The above‑mentioned requirements are essential because it has been held in Bhowanidas Ramgobind v. Punna Chand Luehnaipat and others (A I R 1925 Cal. 801); Braja Nath Pal Chowdhury v. Surendra Krishna Roy and others (A I R 1918 Cal. 179) and Ram Churn Saha v. Ashutosh Dutt and another (2 C W N 188) that affixture should be at the ordinary place of residence of a defendant and not at the place where he might be present when the process‑server goes to serve him. This can only be verified if the particulars of the location, street, Mohallah and number, etc., of the house are disclosed in the report. Similarly, mention of time when the visit was made or affixture was done is also essential. In Tripura Modern Bank Ltd. v. Bansen & Co. (A I R 1952 Cal. 781) at page 788 it was held:‑- "In many cases the return fails to state the time when the attempt to serve was made. This is fatal." and we may say, with respect, for obvious reasons, because the time factor will be an important point in the matter of deter. mining as to whether all due and. reasonable diligence was exercised or not. As for example where the visit was at an odd hour when compared with the defendant's status in life, his habits, his co‑occupation and so forth. Time factor even otherwise will go a long way in determining the truth or falsehood of the process‑server's report. A perusal of the affidavit of the P process‑server as reproduced in an earlier portion of this judgment, shows that various things are missing from it. The said affidavit was of a general character and suggested that the appellant used to remain away or hidden. It did not state the detailed facts and was in no circumstances such, on which the Rent Controller should have decided that the service had been duly effected. It did not state that the process‑server visited the house, or called out the appellant after hearing from the children or that he concealed himself. Unless these facts and this incident was verified in an affidavit the learned Rent Controller could not act on the same under Order V, rule 19, C. P. C.

20. The present case can be examined from another point of view and that is that under section 13 (2) of the Ordinance, an order of ejectment can be passed only:‑ "If the Controller after giving the tenant a reasonable opportunity of showing cause against the application is satisfied that . . . . ." (The various facts mentioned in the section are proved). The question arises as to whether the circumstances of the present case show that a reasonable opportunity was afforded to the tenant. Our answer is in the negative. The reasons are:‑-- (i)that though the Rent Controller himself did not so direct, the process‑server of his own effected a penal and technical service on the appellant which was in excess of his authority; (ii) the Rent Controller instead of rectifying this mistake illegally ratified it; (iii) that though the final order in the case had not yet been passed when the tenant put in appearance and wanted to join the proceedings but the Rent Controller disallowed him to do so‑A step which was too harsh and could not be justified as reasonable; (iv) the service by affixture which was accepted as valid service was no service in the eye of law for the detailed reasons already given herein before; (v) the Rent Controller did not consider the advisability of remedying the wrong, if any, by granting costs to the landlady for late joining of appellant in the proceedings; (vi) the District Judge took a wrong view of the law that unless an order directing ex parte proceedings was set aside, a defendant could not join the proceedings‑a view opposed to Ghulam Muhammad and others v. Mst. Irshad Begum and others P L D 1964 Lah. 782 ; and (vii) the Rent Controller did not notice an admitted fact that earlier two applications had been filed by the same landlady which were duly contested by the tenant and which were dismissed in default for want of prosecution on the part of the landlady and that the present was a third application, which if examined in the back history would had to the inference that the defendant must tae interested in opposing the same and so the proceedings should not have been allowed to remain ex parte against him.

21. In reply to all what has been said above, the learned counsel for the landlady submitted that it was a question of fact as to whether the appellant had been properly served or not and that this Court should not go into it in the course of a Letters Patent Appeal, especially when all the authorities below have held id favour of the landlady on this point. This contention has no force; firstly, because a point as to whether a defendant has been properly served are not on the admitted facts of a case is a question of law; see Mst. Ghulam Fatima and another v. Mst. Bilkis Jan and others (A I R 1944 Posh. 7) which was a case of service of an adult male member of the family under Order V, rule 15, and where it was R held that such a question was a question of law. Secondly, even if this is a question of fact, the endings of the authorities below are vitiated on account of their failure to take into consideration the important points of law and facts mentioned above and by taking a wrong view of the whole situation and the law applicable thereto. Thirdly, all the authorities below were led astray by an assumption which they raised from a suggestion contained in the affidavit of the process‑server, viz., that the appellant had knowledge of the case or the proceedings before the Rent Controller. It is to point out that when the question to be seen is as to whether a defendant has been duly served or not, the point of knowledge is totally irrelevant in that behalf; see Kassim Ebrahim Saleji v. Johurmull Khemko (A I R 1916 Cal. 181) and Jagadesh Prasad Khakalia v. Firm Jesraj Talackchand Lalchand (A I R 1954 Assam 223).

22. The result is that this appeal is accepted and the orders of all the athorities below are set aside and the case is remanded to the learned Rent Controller for fresh decision in accordance with law. The appellant shall get his costs throughout. K.B.A Appeal accepted.