' MUHAMMAD KAMRAN KHAN MULAKHAIL, J.--- This appeal under section 15 of the Balochistan Urban Rent Restriction Ordinance-VI of 1959 ("Ordinance") is directed against the ex parte judgment dated 3rd April 2013 ("impugned judgment") passed by the learned Civil Judge-V/Rent Controller, Quetta against the appellant and respondent No.2.
2. The succinct facts giving rise to instant appeal are that the respondent No. 1/applicant Abdul Nafe filed an Eviction Application against the appellant and respondent No.2, averring therein, that he is recorded owner of the property vide Mutation No.36 bearing Khasra Nos.48/310-317/321 measuring 5-Rods 36-Poles situated in Mahal Karez Baleli, Mauza Karezat Baleli, Tappa Baleli, Tehsil Saddar, District Quetta (property in question), which consists upon two rooms and is being used as trucks/trailers terminal under the name and style of "Spinzar Terminal Parking" located near Qadir Petroleum, Bypass Road, Quetta. The property in question was rented out to the respondents against monthly rent of Rs.2000 which was payable on the first day of every succeeding month.
The rent was being paid till January, 2011 meanwhile, due to differences, which arose between the parties no rent was being paid till date. On 8th December, 2011 the property in question was set-at- fire, and number of vehicles were burnt. The differences between the parties were remained unresolved and from February, 2011 till filing of the eviction application the appellant and respondent No.2 consecutively defaulted towards the payment of monthly rent, therefore, the eviction of respondents was sought with further direction to pay the arrear of outstanding rent calculated to the tune of Rs.36,00,000 (Rupees thirty six hundred thousands).
3. Notices upon the appellant and respondent No.2 could not be served, effectively; therefore, service was shown to have been affected on pointation, which statedly served upon watchman of the terminal (property in question). Thereafter, due to non-appearance vide order dated 28-12- 2012 they were proceeded against ex parte. The ex-parte evidence was produced and recorded on 21-2-2013 and finally on 3-4-2013, an ex parte judgment was passed against the appellant and respondent No.1 with direction to surrender the vacant possession of property in question in favour of applicant/respondent No.1. They were further directed to pay the arrears of monthly rent calculated to the tune of Rs.36,00,000 subsequent to eviction order, an execution application was filed, when fresh addresses of parties were provided and notices of execution application were served upon the appellant through courier service on their permanent addresses at Karachi.
4. The learned counsel for the appellant contended that the delay in filing of appeal was occasioned due to non-effective service and knowledge of the appellant. However, he referred to the Civil Miscellaneous Application filed under section 5 of the Limitation Act for condonation of delay and urged that since the appellant was not aware about the proceeding, therefore, delay if any can be condoned under section 5 of the Limitation Act, 1908. He added that the appellant was totally unaware about the eviction application, however, one Abdul Hameed son of Haji Abdul Rehman had also filed eviction application against the appellant and respondent No.2, wherein addresses of Karachi were mentioned in the application and on service of notice in said proceedings, besides service in execution proceeding, the appellant came to know that execution application of respondent No.1 in the instant case is pending against them. He also referred to an abstract of the property record along with copy of eviction application, which shows the ownership of one Abdul Hameed, who sought eviction of the appellant and respondent No.2 from the same premises.
' He further contended that the appellant has no concern with the property in question nor any tenancy agreement was ever executed between the parties. He stated that the ex parte judgment was obtained intentionally by providing the wrong address of the appellant. He added that the appellant company is based at Karachi but in eviction application his permanent address was shown at Quetta. He stated that astonishingly the notices in eviction application were served upon the watchman of the terminal, but in an execution proceeding the Karachi's addresses were provided. The manner and procedure adopted by the respondent No.1 is based on mala fides and all proceedings initiated in hierarchy of rent controller was motivated with male-gaining and undue harassm ent. Learned counsel referred to copy of FIR No.130 of 2011 registered with Kharot Abad, Police Station, Quetta on 9-12-2011 under sections 3, 4, 5 of Explosive Substances Act, 1908 read with section 436, 427, P.P.C. And section 7 of the Anti-Terrorism Act, 1997 and stated that the premises in question is in supervision of concerned police station prior to registration of referred to FIR. He further explained that when the premises in question is set at fire by the unknown persons, the incident was reported by Head Constable Atta Muhammad (1184/HC) of Police Station Kharot Abad, Quetta, because the shipments of North Atlantic Treaty Organization ("NATO") via road were under serious threats when the unknown assailants started putting fires to the NATO containers and due to Salala Check Post incident the NATO supply was stopped/ disconnected in all over the country. Therefore, purported terminals of NATO supply containers were under the supervision and protection of local police. He added that though the appellant has no concern with the rented property but at the same time the ex parte judgment of the competent court of law under the jurisdiction of Rent Restriction Ordinance is in field. Wherein the learned Rent Controller directed the appellant and respondent No.2 to surrender the vacant possession of property in question, as well as, to pay the alleged outstanding arrears in lieu of monthly rent calculated to the tune of Rs.36,00,000. The learned counsel while assailing the impugned judgment urged that the manner and procedure adopted by the learned Rent Controller is oblivious of prevailing law. The learned counsel further contended that the notice of eviction application was statedly served upon a watchman of the terminal and the mode of substituted service was not adopted, which course is not permitted under the law. He finally prayed for setting aside of impugned judgment with further prayer that the matter may be remanded back to the learned trial court for adjudication on merits.
5. Mr. Mehmood Sadiq Khokar, learned counsel for the respondent No.1 challenged the maintainability of the appeal and stated that the appeal was barred by time which was required to be filed within 30 days from passing of impugned judgment and same has been filed with a delay of about 48 days, for which appellant is bound to explain the delay of each and every day, which he could not explain, therefore, the appeal is not maintainable being barred by time. He further contended that the appellant was well aware about the proceeding pending before the learned Rent Controller as the notices were served upon watchman of the terminal who was under direct employment of the appellant. Learned counsel urged that the order passed by learned Rent Controller is in accordance with law, therefore, does not require any interference by this court. He prayed for dismissal of appeal.
6. I have heard the learned counsel of respective parties and have gone through the relevant record. The contention of learned counsel for the appellant is worth considering as the perusal of eviction application reveals that initially the terminal/property in question's address was provided as a permanent abode of appellant/respondent No.1 and endorsement upon the notice dated 26- 12-2012 shows that the same was served upon one Ejaz (Chowkidar) of the terminal while the copies of courier receipts dated 11-12-2012 do not contain the signature of the appellant nor the service report of courier company shows the effective service upon the appellant. Copy of eviction application and abstract of revenue record appended with the memo. Of petition reveals that in respect of same subject matter and same property one Abdul Hameed being landlord/owner on strength of tenancy of the appellant and respondent No.2 sought their eviction from the same property. Therefore, contention of the learned counsel for the appellant carries more substance because the eviction application filed by respondent No.1 does not show the address of the appellant and respondent No.2, therefore, due to non-effective service it cannot be held that the service effected upon the Chowkidar of the terminal could be termed as service upon the appellant and respondent No.2. The manner and procedure adopted by the learned trial court was a clear departure from the prevailing law, when the procedure for substituted service as laid down in Order V, Rule 20, C.P.C. Was not adopted in letter and spirit. The learned trial court was under legal obligation that when notices could not be served through ordinary mode of service on given addresses of the appellant then alternative and substitute mode of service was required to be adopted. However, service on agent can be considered effective when it fulfils the stipulation contained in Rule 12 of Order V, C.P.C., which being relevant is reproduced hereunder:--- "12. Service to be on defendant in person when practicable or on his agent.--- Whenever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient."
' Admittedly the person namely Ejaz, who was shown to be the watchman of the appellant was neither empowered nor shown to have been in employment of the appellant then the learned trial court, was under legal obligation to adopt the procedure as laid down in Rule 20 of Order V, C.P.C., which stipulates that: "Substitute service.--- (1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order for service of summons by--
(a) affixing a copy of the summons at some conspicuous part of the house, if any, in which the defendant is known to have last resided or carried on business or personally worked for gain; or
(b) any electronic device of communication which may include telegram, telephone, phonogram, telex, fax, radio and television or (c)urgent mail service or public courier services or
(d) beat of drum in the locality where the defendant resides; or
(e) publication in press; or
(f) any other manner or mode as it may think fit.
' Provided that the Court may order the use of all or any of the aforesaid manners and modes of service,
(2) Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.
(3) Where service substituted time for appearance to be fixed. Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the. Case may require [which shall not ordinarily exceed fifteen days.] "
The question of proper service is of significant importance in the instant case. Where the defendant/respondent evades service or cannot be served in the ordinary way or refused to accept service or has not been heard for a long time and the service cannot be effected in the ordinary manner the court shall order that he be served through substituted mode of service under the provision supra. Admittedly in the instant case the learned trial court did not bother to adhere the mandatory provision of law and wrongly placed reliance on service stated to have been affected upon a person namely Ejaz, whose status being an authorized agent was neither established nor recognized by the appellant. Therefore, service in the instant case was not properly affected and the learned trial court was under legal obligation to adopt the other modes of service.
Admittedly the appeal was filed beyond the prescribed period of thirty days of limitation, therefore, the appellant with apprehension and under the impression filed an application under Section 5 of Limitation Act, 1908 ("the ACT") for condonation of delay.
7. When considering the plea for condonation of delay in filing of the appeal, no cavil is left to the proposition as held by the Hon'ble apex Court that in a case of non-service of notice of an adjourned hearing the limitation would govern under Article 181 of the Act, but where an ex parte decree was passed under Order IX, Rule 6(1)(a), C.P.C. The limitation will be governed under Article 164 of the Act. The referred to Article of the Act provides, "period of thirty days for filing an application by a defendant, for an order to set aside a decree passed ex parte, from the date of the decree or, where the summons was not duly served, when the applicant has knowledge of the decree".
' Admittedly, in the instant case the appellant obtained a certified copy of impugned judgment on 30th May, 2013 and filed instant appeal on 11-6-2013 appended with C.M.A. No.604 of 2013 under section 5 of Limitation Act, 1908 for 'Condonation of Delay' for filing of the appeal if any. The contention raised by the appellant mainly revolves around the 'date of knowledge', and the said contention was supported by an affidavit. The affidavit submitted by the appellant was not controverted by means of a counter affidavit nor was the date of knowledge of an ex parte decree disputed in any manner. The contention of the appellant finds further support from the facts on record, when in Eviction Application his permanent abode was shown at Quetta, but in an Execution Application his permanent residence was mentioned in Karachi by way of providing fresh addresses.
Therefore, I am of the considered view that the limitation for setting aside an ex parte decree would run from a date of knowledge, which in the instant case starts from the receipt of notices in the Execution Application, therefore, the appeal filed by the appellant is well within time. Reliance in this behalf is placed upon a reported judgment of the Hon'ble Supreme Court in Mst. Afzal Begum v.
Y.M.C.A. Through its General Secretary reported in PLD 1979 SC 18, Messrs Rehman Weaving Factory (Regd.) v. Industrial Development Bank of Pakistan PLD 1981 SC 21 and Fida Hussain v. Muhammad Rafique Shah 1987 SCM R 845.
Keeping in view the dictum laid down by the Apex Court, the rules of prudence require that the lis between the parties shall necessary be adjudicated on merits and no one shall be non-suited on the basis of technicalities. This is a well defined principle of law as enumerated in the well known maxim "Audi alteram partem" (no one should be condemned unheard), therefore, instead of defeating the course of justice by means of ex parte order and judgment the rule of priority demands and principle of administration of justice requires that a fair opportunity of hearing shall be provided to the contesting parties. At this juncture it is worthwhile to observe that the newly added Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution"), inserted by constitution (18th Amendment Act) 2010 provides :--- "I-10-A. Right to fair trial. --- For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.]"
The referred to Article is included in part II of chapter 1 of the Constitution of Islamic Republic of Pakistan, which relates to the fundamental rights, thus it clearly manifests that the law never permits that dispute between the parties is to be decided on technicalities but to promote the advancement of justice and justice can only be done after hearing both the parties to decide the lis on merits alone. Thus, the manner and procedure adopted by the trial court not only offended the prevailing procedure of law but is also a clear departure from the afore-referred constitutional provision.
In view of above discussion this appeal is accepted and the ex parte judgment dated 3-4-2013 passed by the learned Civil Judge-V, Quetta is hereby set aside. The case is remanded to the trial court for its adjudication on merits after providing fair opportunity of leading evidence to the parties.