' This appeal under section 15 of West Pakistan Urban Rent Restric-. Tion Ordinance VI of 1959, seeks to challenge order dated 17th April 1979 passed by learned Senior Civil Judge-cum-Rent Controller, Quetta.
2. The facts briefly are that appellant was a tenant in the house bearing Municipal No, 3-1/116 situated on Natbasingh Street, Quetta at a monthly rent of Rs,
80. Respondent purchased the house from its previous owner Haji Jamal Din on or about 9th January, 1979 through a registered sale deed and issued a notice dated 6th February 1979 through his counsel requiring him to vacate the house in question within 30 days as he needed it in good faith for his personal bona fide use and occupation as he was living in a rented house himself. In the meantime appellant stated to have paid rent of the months of January and February, 1979 to the respondent. As the house was not vacated by the appellant as per notice respondent filed an application on 17th March, 1979 under section 13 of the West Pakistan Urban Rent Restriction Ordinance VI of 1959, for eviction against appellant which was registered on the next day and notice was issued for 1st April, 1979 by the Rent Controller. As nobody appeared for the appellant on 1st April, 1979 and notice was returned unnerved the Court had ordered the service by affixation and fixed the matter for 12th April, 1979. On 12th April, 1979 in spite of service of notice through affixation nobody appeared ; the Court ordered ex parte proceedings and fixed the matter for 17th April, 1979. On that date after recording ex parte evidence of some witnesses, impugned order of eviction was passed noting that process was issued twice, the first summons was received with a report that the house remain closed and other summons has been received duly served through affixation on the outer door of the respondent's house but respondent in spite of service through affixation has not appeared, Thereafter under the Court's order lock of the house was broken and possession of same was given to the respondent in the presence of Masheer on or about 5th May, 1979.
3. I have beard Mr. Muftakharuddin, counsel for appellant and Mr. I. H. B. Hanafi, counsel for respondent. The grounds taken by counsel for appellant are 'that the report of the Process-Server is in collusion with staff of Court below and that the appellant was at Panjgur in Mekran Division and this fact is known to the respondent, who has been living in the same lane for the last many years the Process-Server did not use due diligence to enquire the whereabouts of the appellant, hence the impugned order is bad and the learned Rent Controller has therefore acted illegally in using the civil punitive procedure contained in Order V, rule 17, C. P. C. And therefore order of service of summons by affixation on the house was without jurisdiction and the appellant was condemned unheard. It may be noted that when this appeal came up for admission before order of my learned brother, counsel relied on Siraj Din v. Mst. Lqbal Begum (1) a Division Bench judgment, wherein it was, held that West Pakistan Urban Rent Restriction Ordinance VI of 1959, sections 13 and 16 read with Civil Procedure Code, 1908 the provisions of Order V, rule 17 are highly technical and penal in nature therefore not applicable to proceedings before Rent Controller. When this appeal came for hearing before me, Mr. Hanafi learned counsel for (1) PLD 1968 Lab. 639 respondent submitted at the time of admission of this appeal that counsel for appellant deliberately placed reliance on the above-cited judgment and got the appeal admitted knowing fully well that the same judgment has been overruled by their Lordships of the Supreme Court in their judgment reported in Ayub Khan v. Fazal Haq and others (1) thus attempted to misguide the Court. When confronted with the Supreme Court judgment and asked as to why he got this appeal admitted placing reliance on a judgment which has since been overruled by the Supreme Court, counsel failed to make any worthwhile answer as there could be none. I do record regret that counsel for appellant who is practising in this Court for , the last so many years has got this appeal admitted on judgment which has since been overruled and I gave him a warning to be more careful I future before referring the matter to Bar Council.
4. Coming back to the case the facts and legal points involved in the judgment (Ayub Khan v. Fazal Haq) more or less are the same as in present case therein it was held that contention that service by affixation by serving officer without approval of Rent Controller being contrary to rule was no service, was not accepted and it was held that Rent Controller's B order deciding case to proceed ex parte amounted to approval of service effected on appellant, Hare I may note that the case before me is that the Rent Controller has passed specific orders that service has been effected by affixation. As to overruling of Siraj Din's case their Lordships have observed as under :- "Mr. Batalvi's next submission was that the Civil Procedure Code was not applicable to proceedings before the Rent Controller, therefore, the said Rule was not applicable to such proceedings because it was a penal rule. Whilst I deprecate contradictory submissions I am compelled to examine this argument because it is supported by a judgment of a Division Bench of the West Pakistan High Court in Siraj Din v. Lqbal Begum. As in the instant case, the appellant in this case had been served by affixation under the said Rule. He, therefore, challenged this service as illegal on the ground that as the Rent Controller was not a Court, he could not follow the said Rule because it was a penal provision. The learned Judges not only accepted the submission that the said Rule was a penal rule, but they further held that as it was a penal rule 'the action of the process-server in effecting service by affixture was illegal, ultra vines and without lawful authority'."
' I am unable to agree with this judgment for more reasons than one. Taking first the question whether the said is a penal pro-, vision, as pointed out by the learned Judges, it is attracted in two situations only. The first is when the defendant refuses to accept the summons of the Court and the second is when he cannot be found. To hold that service by affixation is penal in the first situation would, in humble opinion, amount to putting a premium on fraud and dishonesty. As to the second situation, the provision might, at first sight, seem harsh, but it is not because of the stringent conditions, prescribed by the (1) PLD 1976 SC 422 rule-maker. Those are that the defendant has not been found by the process-server despite 'all due and reasonable diligence' and has also not left any agent or other person empowered to accept service on this behalf. Except on the assumption that the law's delays are to be encouraged, this provision cannot be described as penal. On the contrary, it is a provision which strikes a fair balance between the interest of the plaintiff and of the defendant and its object is to prevent the defendant from defeating the ends of justice by prolonging litigation."
5. There is another circumstance which goes against the contention of appellant that the so-called application of appellant for eviction was manipulated by respondent to evict the appellant, but this is not so because it was the very appellant, who through his counsel in reply to the notice of eviction by respondent dated 1st March 1979 has clearly stated that "he has started looking for another accommodation and as soon as one is found he would vacate the house in his possession. Resort to litigation under the circumstances would not be called for". In other words appellant did not even at that early stage doubted the requirement of bona fide personal use of the respondent and was looking further other accommodation. This reply was given in the month of March, 1979 although order for eviction was passed on 17th April 1979.
' For the reasons given above this appeal saving no force is dismissed with costs.