1. ' MUNIB AHMAD KHAN, J.---Although this F.R.A. Is fixed today for orders on C.M.A. No,1171 of 2009 but keeping in view that short point is involved while both the counsel have insisted for hearing of case on merit therefore the main case has been taken up for hearing with their consent.
2. ' This F.R.A. Has been filed against the order, dated 25-11-2008 passed by Controller of Rents, Clifton Cantonment Karachi, in Rent Case No,101 of 2008 whereby ejectment application filed by the respondent has been allowed and appellants have been directed to vacate the shop i,e, Shop No,2, Ground Floor, Plot No,12-D, Stadium Lane No,1, Phase-V, Defence Housing Authority, Karachi (hereinafter referred to as the demised shop) which was in their occupation. The appellants have further been directed to handover vacant and peaceful possession of the demised shop to the respondent within 30 days.
3. ' The factual position coming out from the record is that the respondent rented out the demised shop to the appellants on a monthly rent of Rs,15,000, which was subsequently enhanced to Rs,20,000 but the appellants defaulted in the payment of rent and made addition and alteration in the demised shop without permission of the respondent and that the respondents required the demised shop for his personal use. On the basis of such allegations, the respondent prayed to order to respondents to vacate the demised shop and hand over the possession of the same to the respondent.
4. ' I have heard the learned counsel and perused the material available on record. For deciding the controversy involved in this FRA, it would be profitable to reproduce the relevant para from the impugned order, which is as under:-- "...The notice was sent through bailiff. The bailiff reported on oath that the Notice could not be served on the respondents as the respondents were not available and they were at Lahore at that time. The notice was also delivered through TCS Courier Service which returned with remarks "refused to accept". The notice thereafter was served by way of pasting, as per report of the bailiff notice was pasted at the prominent place of the respondents address in the presence of two witnesses. Photographs of the process of pasting of the notice was also taken and placed on record. The notice thereafter was also published in daily Nawa-i-Waqt issue, dated 30-8-2008 but none appears for the respondents during Court hours on 9-9-2008 the service of notice on the respondent was held good and case was adjourned to 7-10-2008 for filing of written statement. At later stage of the day on 9-9-2008 Mr. G.N. Qureshi, Advocate appeared on behalf of the respondent and filed undertaking to file Vakalatnama on next date of hearing. On 7-10-2008 and 14-10-2008 none present for the respondent. On 8-11-2008 Mr. G.N. Qureshi Advocate filed Vakalatnama to represent the respondent and case was adjourned to 18-11-2008 for filing of Written Statement. On 18-11-2008 Junior of the respondents counsel present and requests for adjournment to file the written statement which was allowed as last and final chance and case was adjourned to 22-11-2008. On 22-11-2008 the respondent was present but his counsel neither appeared nor he filed written statement despite direction on 18-11-2008 consequently the side of the respondent for filing of written statement was closed and the petitioner was directed to file Affidavit-in-Ex parte Proof, which he filed today.... ".
5. ' Learned counsel for the appellants has contended that the impugned order is ex parte and that the appellants are not defaulters in respect to the demised shop nor the respondent required the same for personal bona fide need and that the respondent concealed that he was regularly receiving monthly rent and further that appellants started depositing the rent in MRC as the respondent with mala fide intention refused to accept the monthly rent from the appellants. The learned counsel for the appellants has contended that the Rent Controller has not taken into consideration the contentions of appellants therefore, order, dated 25-11-2008 was illegal in nature and was to be set aside and that the appellants would have been provided an opportunity of hearing. He further submits that non-appearance on the dates between 9-9-2008 to 22-11-2008 was not deliberate but counsel for the appellants was busy before this Court in some other matter and to support he has filed copies of cause list. He has further argued that even the alleged ground of default was not available as the appellant had made payment of due rent and the very basis of default was not available. He submits that the matter has not been decided on merits as eviction has been ordered on the grounds which were not available at the time of filing of rent case nor afterwards and that the finding of Rent Controller is contrary to law, therefore, the impugned order be set aside and case be remanded for rehearing.
6. ' Learned counsel of the respondents has fully supported the impugned order and contended that the same has been passed after taking into account the factual position involved. Learned counsel has further stated that the appellants had full knowledge about the proceedings in view of the bailiffs report as the notice was pasted and service was also effected in the newspaper through publication. He submits that all available modes, which include bailiff, TCS, pasting and publication, with interval of time, were attempted and thereafter counsel for the appellants appeared and simply filed an undertaking to file power and reply but despite opportunities no reply was filed, hence Rent. Controller closed the opportunity of the appellants to file written statement and proceeded further and in that Rent Controller was right in ordering eviction by his order, dated 25- 11-2008. Learned counsel to support his arguments has referred judgments in F.R.A. No, 7 of 2008 and F.R.A. 58 of 2008 as well as copy of judgment in C.P.0 No,491-K/2008 passed by the Hon'ble Supreme Court.
7. ' After hearing the learned counsel and perusing of record it appears that in the instant case, as recorded by the Rent Controller in his order, all the required efforts were made by him towards the service and notices were issued on the rented premises of the appellants and service was effected with difficulty after pasting of the notices, and publication. Anyhow, the counsel for the appellants appeared and filed his undertaking on 9-9-2008 but did not file power or written statement. He filed Vakalanama after about two months on 8-11-2008 while in between 9-9-2008 and 8-11-2008 there came the case twice but none from appellants side attended.
8. ' Keeping in view the factual position involved in this case as well as gist of the order, I find that the authority 2008 SCM R 635 is relevant to the facts of this case. In the said authority on the issue of service, Hon'ble Supreme Court has recorded as follows:-- .... According to the report of Process-Server a copy of notice was affixed on the abode of the petitioner. It may be noted that the petitioner has not disputed the address furnished by the respondent in the ejectment petition was not correct or notices were sent on wrong addresses. All the notices through ordinary process, by registered post and through publication were sent on the same address i,e, 271-A, Street No,6, Cavalry Ground, Walton Lahore Cant. Thus the petitioner was served through all modes of - services provided under the law and orders, dated 9-1-2007, whereby the petitioner was proceeded ex parte, dated 5-6-2007, through which petitioners application for setting aside order, dated 9-1-2007 was dismissed, are not open to any exception....
9. ' The above authority shows that if proper procedure for issuance of notices for service is adopted by a Rent Controller with interval of time, then no exception can be taken to that. In the instant case, all modes were adopted and at the last stage counsel for the appellants appeared and only filed an undertaking while case remained for two dates without any attendance from the appellants and again an opportunity was given after about two months when the counsel filed Vakalatanama and case was adjourned for written statement but written statement could not be filed on that adjourned date and again matter was adjourned for written statement with last and final chance to 22-11-2008 but even on that date no written statement was filed hence opportunity for the appellants to file the written statement was closed and matter proceeded ex parte. All above factual position shows that it took six months to the Court to come to final stage for closing the side as the appellants failed to file written statement. Above factual position shows that the appellants themselves were not keen to safeguard their own A interest and took the matter with the Court very lightly as they appeared when all the modes of services were exhausted and even thereafter failed to file written statement from 9-9-2008 to 22-11-2008. It will also be pertinent to mention that on 22-11-2008 case was adjourned for filing ex parte proof but even during that time there was no interception by the appellants by filing any application along with written statement so there was likelihood that an opportunity would have been given but the appellants waited for the result which was expected. The contention of the learned counsel that he was busy before this Court hence could not appear before the Rent Controller cannot be considered as a proper excuse.
10. Even otherwise, on 22-11-2008, it was Saturday and something could be done on last date. It is settled law that it is not only the responsibility of the counsel but of the party of the case itself to appear before the Court but none has appeared. The impugned order of the Rent Controller also shows that some Junior of the counsel was also present which shows that appellants had full knowledge about the development in the case, but no step was taken notwithstanding the fact that appropriate action could be taken and even the required written statement could be filed in the office of the Court at any convenient time and date to avoid an ex parte order but that has not been done.
11. ' In such a situation, it appears that the appellants were themselves indolent. The authorities cited by counsel for the respondents support his case. In the circumstances, the appeal is dismissed with the direction that the appellants to hand over the demised shop within a period of 30 days from the date of this judgment.