2001 SCMR 99 (PLP)

Laws Cited

Representation

• Syed Haider Ali Pirzada, Advocate Supreme Court and A. Aziz Khan, Advocate- on-Record for Petitioner.
• Abdul Rahim Kazi, Advocate Supreme Court and Miss Wajahat Niaz, Advocate- on-Record for Respondent:
• Date of hearing: 6th July, 2000.
• 3. It is mainly contended by Syed Haider Ali Pirzada, Advocate Supreme Court that the mandatory provisions as contained in Order V, rule 20, C.P.C., were never complied with which resulted in serious miscarriage of justice. It is also contended that substituted service could not have been made as initially the summons were issued at wrong address showing that -the petitioner was carrying some business in a shop but on the contrary an office was established and the distinction between shop and the office escaped notice. It is argued that proper opportunity of hearing had not been afforded and the petitioner was condemned unheard which is in violation of settled norms of justice. It is urged with vehemence that an amount of Rs.50,000 was handed over to the respondent which could have been adjusted against rent and hence the question of any default does not
• 4. Mr. Abdul Rahim Kazi, Advocate Supreme Court appeared for respondent and vehemently controverted the arguments as advanced on behalf of petitioner by contending that various summons were issued but could not be served and thus no option was left available but to, invoke substituted service and, accordingly, order was passed by the learned Rent Controller after having complied with all the necessary formalities. It is contended that no cogent proof and convincing documentary or oral evidence could be led showing that an amount of Rs.50,000 was handed over to the respondent as 'Pagri' and the receipt as produced being unsigned and undated could not have been considered.
• 5. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of the provisions as contained in Order V. rule 20, C.P.C. and record of the case. We have minutely gone through the order, dated 16-3-1998 of learned Rent Controller and impugned judgment, The Paramount question which needs determination is as to whether proper service has been effected or otherwise? It transpires from the scrutiny of the record that various notices were issued for 28-11-1995, 12-12-1995, 21-1-1998, 18-3-1998, 12-9-1997 and 10-10-1997 but the attendance of respondent could not be procured and resultantly substituted service by way of publication in daily 'Nawa-i-Waqt' was directed by learned Rent Controller. It is worth mentioning that the statement of bailiff was got recorded on oath by whom it has been stated in categoric manner that in spite of his best efforts notice could not be served upon the respondent on the given address as the premises were found locked and resultantly the notice was pasted at the outer door of the premises. A thorough examination of the record would further reveal that due care and caution has been observed by the learned Rent Controller in this regard and even after publication an opportunity was afforded to respondent for filing written statement but the same could not be availed. We are conscious of the fact that "unless all efforts to effect service in the ordinary manner are verified to have failed, substituted service cannot be resorted to". (1996 SCMR 1703, PLD 1998 Lah. 118, 1995 MLD 170, 1993 CLC 2303, 1984 CLC 2855). As mentioned hereinabove in spite of various efforts and issuance of notices on different dates the service could not be effected on the respondent and, accordingly, a direction was given regarding substituted service which is as effective as personal service. In this regard reference can be made to PLD 1979 SC 18, 1993 MLD 54 and 1988 CLC 292. There is no cavil to the proposition as mentioned hereinabove that "substituted service is as effective as personal service and the Court may on the failure of the defendant to appear when the suit is called on for hearing proceed with the hearing of the suit ex parte" (PLD 1975 Azad J&K 122). Substituted service has always been equated to that of a due service. We have not been persuaded to agree with Syed Haider Ali Pirzada, Advocate Supreme Court that the mandatory formalities as envisaged under Order V, rule 20 have not been adhered to in letter and spirit for the simple reason that persual of record as per details mentioned hereinabove negates his version. We have not been impressed by the contention that there is a distinction between a shop and an office for the reason that petitioner himself was not sure as to whether the premises in question were being used as an office or shop. It is noticeable that the petitioner himself has admitted that he was a lawful tenant and in possession of premises office bearing No.1, sitauted at MR-1-146, Hamid Market, Marriot Road, Karachi (ground B of the memorandum of appeal filed before High Court of Sindh, Karachi). It may not be out of place to mention here that even in this petition property in dispute has been shown as "office" as is apparent from the title of the petition. The petitioner failed miserably to prove that an amount of Rs.50,000 was given to respondent and the receipt produced in this regard has rightly been discarded as it is unsigned and undated. It is not known by whom the said amount was given and to whom? For the sake of argument even if it is admitted that an amount of Rs.50,000 was given to petitioner by way of 'Pagri' it could not have been adjusted against rent which is an admitted legal position.

Headnotes / Summary

Judgment & Decree