' SALMAN HAMID, J.--- Rent Case No,216 of 2009 (Rent Case) was filed by Mst. Bushra, wife of Zulfiqar Ali (Respondent No,1) for eviction of Mst. Bushra, wife of Irshad Ahmed, Late (Petitioner) from House No,E-4/S, Survey No,490-511, Deh Mehran, Model Colony, measuring 144.44 square yards or thereabouts, Karachi, (demised premises) on the ground of default in payment of agreed monthly rent and for personal bona fide use before the Senior Civil Judge and Rent Controller Karachi East, decided by VIII-Rent Controller, Karachi, East (Rent Controller). The petitioner despite service having failed to contest the Rent Case, in terms of Order dated 15-10-2009 the Rent Controller directed the petitioner to vacate the demised premises within sixty days. The petitioner after order dated 15-10- 2009 preferred application under section 12(2) read with Order IX, Rule 13, C.P.C. (Application) in the Rent Case with a prayer that order dated 15-10-2009 be set aside as such was passed ex parte.
Application, after hearing, was dismissed by the Rent Controller in terms of order dated 26-1-2010, holding that the petitioner was duly served and she despite service having failed to contest the matter and that there was no fraud played by the respondent No,1, order dated 15-10-2009 require no interference. Dissatisfied with order dated 26-1-2010, the petitioner preferred First Rent Appeal No,41 of 2010 (F.R.A.) before the, District Judge, Karachi East, which was decided by the V-Additional District Judge Karachi, East (V-ADJ) against the petitioner, upholding order dated 26-1-2010.
Through this constitution petition, (petition) the petitioner has challenged only order dated 15-10- 2009, (eviction order) and order dated 18-10-2010, (order dismissing F.R.A.). Order dated 26-1-2010, dismissing application and maintaining order of ejectment dated 15-10-2009 has not been challenged.
2. Briefly, the background of the case is that, the respondent No,1 preferred Rent Case on the ground of default and personal bona fide need. In respect of default it was pleaded that after the respondent No,1 purchased the demised premises in or about 2004, caused notice dated 29-8- 2004 under section 18 of the Sindh Rented Premises Ordinance, 1979, (SRPO) and the petitioner started paying rent to respondent No,1 but it was always after the due date. Subsequently, the petitioner stopped altogether and did not pay any rent and then upon demand of the arrears of rent, the petitioner issued Cheque No,0145242 dated 1-2-2008 for Rs,30,000/- covering rent of three months and it was also undertaken that balance arrears would be cleared within 15 days. The cheque was dishonoured upon presentation with the remark, "not arranged for". Rent of the demised premises remained uncleared. As to personal need, it was pleaded that the husband of the respondent No,1 was in the service of Pakistan Navy and that he was due to retire in October, 2009 and that the official accommodation that was available with the respondent No,1 would no more be on hand after retirement of her husband. Therefore the demised premises was required for their personal bona fide need.
3 After filing of the Rent Case the petitioner was attempted to be served through ordinary mode first and upon refusal, publication was also made. Whereafter service was held good. The chronology of attempts of service on the petitioner was that in the first instance as per bailiff report at page 131 of the file he went to serve the petitioner on 23-7-2009 and at such time petitioner's sons namely Arsalan and Rehan came out of the demised premises; read the court notice and told the bailiff to take the same back and refused to receive it. On 19-8-2009 court notice as per order of Rent Controller was pasted on the main door of the demised premises: Despite such pasting the petitioner failed to come forward and defend the Rent Case. Left with no option, the petitioner was served through publication of daily Nawa-e-Waqt. Service on petitioner was held good in terms of order dated 2-9-2009 and she (petitioner) was required to file written statement. This was not filed.
On 26-9-2009 the petitioner was debarred from filing written statement and the Rent Case was fixed for ex parte proof on 1-10-2009. Order dated 15-10-2009 was passed thereafter, whereby the petitioner was directed to hand over possession of the demised premises within 60 days. Petitioner filed application and upon its dismissal in terms of order dated 26-1-2010 FRA was preferred which too was dismissed in terms of order dated 18-10-2010.
4. In the application all that was mentioned was that the petitioner only came to know of order dated 15-10-2009 on 12-11-2009 for the first time from the relatives of the petitioner. In reply respondent No,1 asserted that names of relatives not disclosed and under what circumstances such knowledge was acquired was also not given together with objection as to why the same relatives could not give information at the time when Rent Case was pending. Very maintainability of the Application was questioned by asserting that the provisions of C.P.C. Were not applicable, save those specifically mentioned in SRPO.
5. I have heard the learned counsel for the petitioner and respondent No,l. The main thrust of arguments of learned counsel for the petitioner was that the petitioner was not properly served and that the service that was effected on the petitioner was in violation of Rules 105, 106 and 107 of the Sindh Civil Court Rules, (SCCR). Bare perusal of Rules 105, 106 and 107 of SCCR would reveal that as far as Rule 105 is concerned it only provides that the serving officer shall serve all processes entrusted to him with the aid of the party at whose instance the process is issued and after due inquiry as to the identity of the person on whom or the house or property where the same is to be served provided that if it appears to the court that sufficient information cannot be given as to the identity and place of residence of the person on whom process is to be served, or as to the house or property where process is to be served, or if the court is satisfied from the affidavit of the serving officer or upon his examination on oath, (if necessary) that the person or the house or the property or the place of residence of the person aforesaid could not be identified, after due diligence an inquiry, it may ask the party concerned to supply and identify. Thus, Rule 105 essentially provides that the bailiff of the court will go with the notice to serve the person after due inquiry, but without identification by the party and nothing else. At the same time it is also permissible under Rule 105 of SCCR that, if necessary, and circumstances require, the party can identify the person on whom the service has to be effected and in such event, an identifier can accompany the bailiff. It is no where alleged by the petitioner that at the time of service anyone on behalf of Respondent No,1 was present with the bailiff concerned. Even if such was the case, i,e, that the identifier was accompanied by the bailiff, again the proviso to Rule 105 of SCCR allows that in the event the person or the place could not be identified after due diligence and inquiry, an identifier can accompany the bailiff. This being the position, there seems to be no violation of Rule 105 of SCCR.
6. Coming to Rule 106 of SCCR, it may be observed that it says that if the serving officer is not personally acquainted with the person to be served, he shall, whenever possible, obtain on the original process the endorsement by signature or thumb-impression of a respectable person of thelocality, identifying such person or place of residence or the house or property on which the process is served. It is evident from the statement of bailiff dated 21-8-2009 available at page 127 of the file that after pasting of the court notice on the door of demised premises, he attempted to obtain signature of independent witness but no one came forward. The bailiff under the circumstances, complied with the requirement of Rule 106 of SCCR which even otherwise is only enabling and/or directory and not mandatory as no consequence is provided if compliance of Rule 106 of SCCR is not made. Similarly Rule 107 of SCCR provides that where the person to be served refuses to sign the acknowledgement or cannot be found, the serving officer; shall, whenever possible before affixing the copy of the summonses on the outer door of the house of such person, obtain on the original process the endorsement by signature or thumb impression of at least one respectable person of locality in support of such fact (emphasis provided). Again, this Rule is in the similar nature as Rule 106 of SCCR. It provides that whenever possible signatures of witness be obtained. Bailiff's statement is on record to the effect that he attempted to obtain signature of independent witnesses but it was not possible as no one was willing. Non-compliance of this rule is not fatal as no consequence is attached.
7. All this apart, it is clear from statement of the bailiff available at page 141 of the file that on 23-7- 2009 he went to serve the petitioner on the given address when the two sons of petitioner came out namely Arsalan and Rehan and when such notice was attempted to be handed over to them, they after reading it told the bailiff to take the notice back and they refused to receive the same.
This statement of the bailiff by itself shows that the sons of the petitioner categorically refused to accept the court notice and under law refusal is good service. Despite this, to give full opportunity to the petitioner to safeguard her interest in the A Rent Case, publication was also made but petitioner did not come forward. Whatever was claimed by the respondent No,1 in the Rent Case gone unrebutted and the Rent Controller, left with no choice, proceeded further ex parte and assed Order dated 15-10-2009.
8. Coming to the Application, it may be noted that it was only mentioned therein that the petitioner came to know about her eviction on 12-11-2009 first time from relatives. Neither any affidavit of relative nor name of such relative was disclosed. Such cursory and bald claim of the Petitioner did not merit any consideration by the court, more particularly keeping in view the fact that if such relative could inform the petitioner of Rent Case on 12-11.-2009 could have also informed of the same prior in time to the passing of the order dated 15-10-2009. The only thing that comes out from the application is that the petitioner was quite aware of Rent Case and was watching it closely and remained under the mirage that she would be able to delay the proceedings and that once the order would be passed, she would come up with the plea that such was not in her knowledge. Petitioner failed in her anticipation and plans. The supporting affidavit to the application would show that nothing was stated on oath regarding knowledge of Rent Case or otherwise. It was under these circumstances, that the application was dismissed in terms of Order dated 26-1-2010.
9. It may be interesting to note that the petitioner in the petition has only challenged order dated 15-10-2009 whereby ejectment was ordered by the Rent Controller and Order dated 18-10-2010 whereby the V-ADJ upheld the Order dated 26-1-2010, passed by the Rent Controller, dismissing the application. However, order dated 26-1-2010, though challenged in the F.R.A. Together with order dated 15-10-2009, is not challenged in the petition. It has attain finality.
10. Since it has amply come on record that the petitioner deliberately and wilfully and with mala fide intentions kept herself away from Rent case despite service, cannot be given any grace or latitude by upsetting the concurrent findings of the courts below and that too in a constitutional jurisdiction. The petition being meritless is dismissed along with listed-application.