On an application made by the first respondent, Muhammad' Yaqoob, hereinafter referred to as the respondent, under section 17 of the Cantonments Rent Restriction Act, 1953, the Additional Rent Controller, Lahore, made an ex pane order requiring the first petitioner, Ashiq Masih to vacate a house on the ground that he had committed default in the payment of rent. The order of the learned .Additional Rent Controller was challenged by the first petitioner and his wife, Mst. Hanifan Bibi, who is the second petitioner herein, by means of an appeal but without success. Hence this writ petition by the two petitioners.
2. When the ejectment application was pending before the learned Additional Rent Controller, its notice was sent to the first petitioner, hereinafter referred to as the petitioner, who was the only respondent in the said application, through the Process Serving Agency as well as by registered post 'but the reports received thereon were to the effect that he had gone abroad Therefore, he was served by means of proclamation in a newspaper. Despite his service as aforesaid, however,.
He did not enter appearance before the learned Additional Rent Controller and, therefore, his ejectment was ordered without holding any formal inquiry.
3. While assailing the order made by the learned Additional Rent Controller, it was pointed out by learned counsel for the petitioners that no effort ryas made to personally serve the petitioner with notice of ejectment application at' his foreign address, and, therefore, the substituted service effected on him was not in order. For this proposition, reliance was placed by him on Muhammad Aslam v. Additional District Judge, Rawalpindi, etc. (1979 SCMR 85and Aziz Khan v. Maiz Muhammad Khan and 6 others (PLD 1980 Pesh. 227It was also submitted by learned counsel for the petitioners that since the order of ejectruent was made without holding a formal inquiry, under section 27 of -the Cantonments rent Restriction Act, the said order was without jurisdiction.
4. In reply, it was maintained by learned counsel for the respondent that since the petitioner was a defaulter the learned Additional Rent Controller was justified in passing the impugned order of his ejectment 5.I have gone through the record of proceedings conducted by the learned Additional Rent Controller and find that the notices issued to the petitioner through the Process Serving Agency and by registered post were not served on him. The reports made thereon were to the effect ` that he had gone abroad. In view of these reports, the learned Additional Rent Controller ought to have directed the respondent to furnish the address of the petitioner at which he was' living abroad but he, did not make any order in this behalf nor the respondent had .Suo motu given the aforesaid address for effecting personal service on him. The respondent also did not make any application stating that the foreign address of the petitioner was' not known to him and. Therefore, it was not possible to serve him except by 'beans of proclamation in the newspaper. Thus, there was no basis for ordering service of the petitioner trough citation. It was ruled by the Supreme Court in- the aforementioned case of Muhammad Aslam that if substituted service is got effected on a party without taking constructive steps to have the party served personally, the substituted service is not 'a valid service. In Aziz Khan's case, referred to above, the defendant who was residing oat of country was directed to be served by registered postthrough Embassy and also by advertisement in .Newspaper. Direction regarding service by registered post was, however, not complied with. It was, therefore, held by the Peshawar High Court that service through newspaper, was not proper.
Relying on these authorities and keeping in view the circumstances of the present case I hold that the learned Additional Rent Controller had no jurisdiction to order substituted service of the petitioner
6. As for the plea raised by learned counsel for the petitioners that no formal inquiry was held by the learned Additional Rent Controller, the record reveals that as soon as it was found by the learned Additional Rent Controller that the proclamation had appeared in the newspaper he ordered ejectment of the petitioner without taking out any further proceedings such as recording of ex parte evidence of the respondent. In the order of ejectment made by him it was not stated by him that in view of the material already on the record he was satisfied that the petitioner was a defaulter. The only reason given by him for ordering his eviction was that the petitioner had failed to enter appearance despite service . According to clause (a) of sub-rule (1) of rule 6 of Order IX of the Code of Civil Procedure, a civil Court can pass an ex parte decree without recording evidence if the defendant does not enter appearance despite of service but, as held in a large number of cases, the provisions of the said Code are not applicable to ejectment proceedings. In the proceedings before the learned Additional Rent Controller he was required to proceed in accordance with the provisions of section 27 of the Cantonments Rent Restriction Act which obliged him to hold an inquiry before ordering ejectment of the petitioner. No inquiry whatsoever was, "however, held by him. Therefore, his order is in disregard of the said provisions of the Act. The submission made by the learned counsel for the respondent that the petitioner was a defaulter and, therefore, he was liable to be ejected from the disputed premises is nothing but an allegation of the respondent. There is no evidence to support that allegation nor there is any admission by the petitioner in this behalf. There is also no finding by the learned Additional Rent Controller that the petitioner had failed. To pay or tender any rent due to the respondent. In fact, .As stated earlier, he did not advert to this aspect of the matter. In the circumstances, it is not possible for me to agree with learned counsel for the respondent that the petitioner had been guilty of default.
7. As pointed out above, the learned Rent Controller had ordered substituted service of the petitioner without valid reasons and had passed l order against him without holding a formal inquiry. His order is ,I therefore, without jurisdiction and of no legs effect.
8. Resultantly, I accept the writ petition, with costs, quash the order of ejectment made against the petitioner (Ashiq Masib) and direct that the learned Additional Rent Controller shall decide the. Ejectment matter afresh and in accordance with law