' The brief facts of the case leading to the filing of this appeal are as follows : ' The respondents claiming to be the owners of the property bearing No, SOL-B-1/86 near Post Office Soldier Bazar Karachi, as transferees under a registered gift deed, filed on 21-1-1976 an application for ejectment under section 13 of the then West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred as the said Ordinance of 1959) in the Court of the XIII Civil Judge/Rent Controller at Karachi. The said ease was registered as R. C. No, 34 of 1976. The ejectment was sought on, the ground that by notice dated 22-1-1976 sent by registered post (AD) the respondents intimated the appellant about the transfer of the above-mentioned property to them by way of gift and also of the decree passed in Suit No, 179/66 confirming the said gift in their favour, and that in spite of the fact that they called upon the appellant to pay the rent the latter failed and neglected to do so. A plea was also raised in the application that the respondents required the said premises for their personal and bona fide use and residence.
2. The learned Rent Controller on 23-1-1976 admitted the application for hearing and directed that the notice be issued to the appellant for hearing on 24-2-1976.
Accordingly notice was issued to the appellant/tenant to appear on 24-2-1976 in the Court of the XIII Civil Judge/Rent Controller Karachi when the case was fixed for hearing and to show cause against the application. It is further alleged that the bailiff accompanied by one of the respondents went to the residence of the appellant on 4-2.1976 at the given address, and that the appellant came out of his house and that the notice and copy of the application were given to him but after reading the same he refused to accept and on such refusal in the presence of one Faziur Rehman the notice was affixed on the outer doo of the appellant's house. A report to this effect was submitted by the bailiff on 11-2-1976.
' The case was put up before the learned Rent Controller on the date of hearing i.e,, 24.2-1976 when the respondents and their counsel were present but the appellant was absent. On the ground that the appellant had remained absent without any intimation the learned XIII Rent. Controller ordered the case to proceed ex parte against him. Accordingly the case was put off to 11-3-1976 for ex parte proof. On 11-3-1976 the Court diary shows that the case was transferred to the Court of the 11 Rent Controller and the counsel for the respondents who was present was informed that he should appear in that Court on 19-3.1976. It was also noted in the diary of 11-3-1976 that the Counsel for the respondent had "filed ex parte proof." The learned counsel for the respondent Mr. K. B. Bhutto who was present "waived the notices' of transfer by making an endorsement to that effect on the diary sheet on the same date.
3. Thereafter the case came up before the learned II Rent Controller on 19-2.1?76 when the following order was passed :- "Advocate for applicants present put off to 22-4-1976 for orders."
' No notice of the transfer of the case to the Court of. II Rent Controller, Karachi was given to the appellant.
' The diary sheet further shows that the case was taken up on 22-3.1976 (instead of 22-4-1976) in the presence of the Advocate for the respondents and in the absence of the appellant and that the Rent Controller announced the order whereby the application was allowed with costs and the appellant was directed to hand over vacant possession of the premises to the respondents.
4. The Respondents applied for execution of the order of ejectment passed ex parte in their favour against the appellant. Having received the notice on 22-7-1976 to show cause against the Execution Application No, 2/76, the appellant filed an application under Order 9, rule 13, C. P. C. Read with section 151, C. P. C. For setting aside the ex parte order passed on 22-3-1976 on the ground that he for the first time came to know about the ex parte order on receipt of notice of execution application on 27-7-1976 and that on inquiries from the office he learnt about the ex parte order. It was inter cilia, further pleaded that no proper service in the matter was effected and that the ex parte order had been obtained by the respondents through misrepresentation, fraud and thus the order was liable to be set aside in the interest of justice. The learned II Rent Controller by order passed on 15-12-1977 dismissed the application on the ground that the service of notice was held good by the learned Rent Controller XIII Karachi on 24-2-1976 and that thereafter the case had proceeded ex parte and the order was passed on 22.3-1976 and that no sufficient reasonable ground was shown for setting aside the said ex parte order.
5. Against the aforesaid order the appellant filed Appeal No, 349/77 which was also dismissed by the learned III Additional District Judge Karachi by order passed on 1-3-1978 on the around that the application filed under Order IX, rule 13, C. P. C. Was beyond 30 days of the passing of the ex parte order and thus the remedy was lost to him and as such the application was barred by time. The learned Ist Appellate Court further held that it was for the appellant to have proved beyond doubt that the respondents in collusion with the bailiff acted illegally with mala fide intention with a view to obtain an ex parte decree and that there was no material on record to make it possible to presume that the respondents acted fraudulently, malaciously and illegally to obtain an ex parte decree.
6. Against the aforesaid orders the present II Appeal has been filed whereby the said orders have been challenged.
7. I have carefully gone through the record. The diary sheet of the case before the learned Rent Controller reveals glaring irregularities which may be referred hereinbelow :-
(1) The diary of 24-2-1976 shows that the respondents and their counsel were present and the appellant/tenant was called absent. It is however surprising to note that in the same order of 24-2- 1976 it is noted by the learned Rent Controller that the "Counsel for the opponent present at 1 p. m." ; and at another it was further noted that "the counsel for the opponent present."
The fact however is that neither the opponent/tenant was present nor he had engaged any counsel to appear on his behalf. The admitted position is that the opponent (now the appellant) was absent on 24-2-1976. According to the appellant's case he was never served with any notice so as to enable him to make any appearance before the learned Rent Controller on 24-2-1976.
(ii) Next date was 11-3-1976. The diary of 11-3-1976 shows that the case was transferred from the Court of XIII Rent Controller to the Court of H Rent Controller by an administrative order. The counsel for the respondents/landlords was directed by the said Rent Controller XIII to appear before the Court of the Rent Controller II, on 19-3-1976. In spite of the transfer of the case it is surprising that the affidavit of ex parte proof was allowed to be filed by the respondents.
(iii) On 19-3-1976 the case came up before the learned Civil Judge/Rent Controller No, II, The diary sheet/order of that date roads as follows :- "Advocate for applicants present. Put off to 22-4-1976 for orders."
' It may be noted here that no intimation of this date had been given to the appellant/tenant who continued to be a party to the proceedings, yet the case was ordered to be fixed for orders in his absence by the transferee Court for 22-4-1976.
(iv) A strange but disturbing thing happens thereafter. Instead of taking up the case on 22-4.1976 to which date the case was put off for orders as revealed by perusal of the original diary sheet, the case was taken up on 22.3-1967 and the order of ejectment was passed ex parte. It is not understood by what process the case was ante-dated and the ejectment order was passed ex parte on 22.3-1976. Serious and material irregularities in passing ex parte ejectment order are thus clearly established resulting in miscarriage of justice and prejudice to the appellant. These irregularities in my opinion are sufficient to vitiate the impugned order of ejectment passed ex parte.
8. (i) I am also of the opinion that the case having been transferred to the H Rent Controller from the Court of XIII Rent Controller, no proceedings adverse to the appellant/tenant could have been taken by the transferee Court without issuing notice to the appellant/tenant of such transfer/hearing of the case in his Court. The requirement of such a notice would be necessary even if for the sake of argument it is assumed that the appellant/tenant had remained absent on 24-2-1976 in spite of service of notice upon him as alleged. I am fortified in my view by the judgment given by the Honourable Supreme Court of Pakistan in the case of Rehman Weaving Factory v. Industrial Development Bank of Pakistan (1) where the Honourable Judges with regard to the necessity of giving notice on transfer of a case by an administrative order, cited with approval the observations made in the case of Krishen Lal Malhotra v. Madan Lal and others (2). It was held :- "In Krishen Lal Malhotra v. Madan Lal and others, it was held that when a case is transferred by administrative order from one Court to another while ex parte proceedings are pending against the defendant, the latter is entitled to notice after the transfer inasmuch as he is still a party to the litigation within the meaning of para. 6, Chapter 13, Volume 1, Lahore High Court Rules and Orders, and further that when such notices are not given, proceedings taken against the defendants after transfer, would be set aside. It was further held that there was nothing in the Code of Civil Procedure to prohibit a defendant against whom a case is proceeding ex parte, to join at any hearing of the case and start from that stage. It was also held that "the Code of Civil Procedure encourages free and fair contest and a litigant must always know the Court to which he should go for the purpose. He was aware of the Court which sent him summons or before which he had appeared, and where a change has occurred, he should be apprised of this change ; for it is his undoubted right to return to his case at any time before it was over". Accordingly, it was held that the defendant was entitled to a notice after the transfer of the case to another Court and all the proceedings taken against him since transfer including the ex parte decree were set aside."
(1) P D 1981 SC 21 (2) PLD 1950 Lah. 82
(ii) It would also be observed here that in the above-cited case of Rehman Weaving Factory the Honourable Supreme Court while interpreting the word 'summons' used in Article 164 of the Limitation Act observed that setting aside ex parte decree/order where summons had not been issued and only notice had been ordered to be issued the application for setting aside ex parte order would be governed by Article 181 giving a period of limitation as 3 years from the accrual of right to apply and that an application for setting aside ex parte order made within three years of ex parte decree from the date of the knowledge of the decree was held to be within prescribed limitation period.
(iii) In view of the above authoritative judgment of the Honourable Supreme Court of Pakistan in the case of Rehman Weaving Factory and finding that after the transfer of the case by administrative orders, no notice was issued to the appellant/tenant by the transferee Court and that the application for setting aside the ex parte order made within three years of the date of the order was within time, the impugned ex parte order of ejectment passed against the appellant/tenant cannot be sustained and the same is liable to be set aside.
9. I would also like to add here that the notice allegedly served upon the appellant/tenant in the manner alleged, should have raised reasonable suspicion in the minds of the lower Courts as to the legality and the propriety of the alleged service. It would be seen that in the case filed before the learned Rent Controller the first date of hearing was 24-2-1976 for which date the notice was issued to the appellant/tenant. The bailiff is alleged to have gone to the residence of the appellant/ tenant on 4--2.1976 and having made only one effort to serve the notice, affixed the same on the door on the allegation that the appellant cam out of the house read the copy of the notice and refused to accept the same. In the report the bailiff alleged that he was accompanied by the applicant and that he affixed the notice on the outer door of the premises in the presence of 2 witness Fazlur Rehman on 4-2-1976. A peruse of the original notice shows that signature of Fazlur Rehman bears the " date 4-2-1976. No address or profession of this witness has been given as required by rule 17 of Order V, C. P. C. Though the case was fixed fo hearing on 24-2-1976, the bailiff allegedly served the notice by affixin the same on the outer door of the house of the appellant/tenant, on 4-2-1976 but the report is alleged to have been written on 11-2-1976. No explanation for the delay in making the report in forthcoming. The report does not bear the signature of the witness in whose presence the notice was allegedly affixed on the outer door of appellant's house. Reference here may be made to rule 108 of the Sind Civil Court Rules which requires that the process server shall immediately after completion of his duty connected with any process "'record with his own hand upon the original process at the place of execution and in the presence of witnesses (if any) his report specifying the manner of execution .."
This Rule was clearly violated by the process-server/bailiff. We have seen that the case was filed by the two applicants/respondents/ but in the report it is stated by the bailiff that "applicant" accompanied him, he did not even disclose his name. Moreover under rule 105 of Sind Civil Court Rules the bailiff entrusted to serve the notice was required to serve notice without the aid of the party at whose instance the process is issued. It is also worth noting here that the bailiff was not examined in the Court though in the affidavit filed in support of the K application to set aside the ex parte order it was expressly stated that no service was effected upon the appellant and that the order was obtained by the respondents through misrepresentation and fraud. Reference here may be made to the case of Balaram Choudhary v. Hari Krishna Choudhary (1) where the said learned High Court observed as follows :- "A more serious contention is that whereas the appellants swear in an affidavit that they had not been absent at the places alleged and on the date alleged and that there had been no proper affixture, there was no evidence contra other than the written affidavit of the process server sworn before the Deputy Nazir. No doubt that affidavit is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings.
' But when the parties concerned deny the fact of service it is in my opinion desirable that at any rate the process-server who purports to have served the notice should be put into the witness-box and that those who deny service should have been given an opportunity of cross-examination."
' The said learned High Court further held :- "Since the allegation that the appellants had notice depends entirely on a single return unsupported by oral evidence and gaining very little support from circumstantial evidence, I am of opinion that the learned District Judge would have been well advised to have set aside the ex parte order and given the appellants an opportunity of stating their case. In the result therefore the appeal is allowed and the ex parte order is set aside."
10. The learned Advocate for the Respondents however argued that the concurrent findings of fact as to the service of notice given by the two Courts below cannot be interfered with by the High Court in exercise of its jurisdiction in Second appeal. The arguments of the L learned counsel for the respondents cannot be accepted as a finding on the question of fact which is not supported by any evidence or if it is found that the said findings were not reasonable and are perverse, the same cannot be binding upon the High Court even in a Second Appeal. We have already seen above the illegalities and irregularities committed in the alleged service of notice upon the appellant/tenant and in passing ex parte order by the transferee Court without notice. The appellant/ tenant and his proceedings have been in occupation of the tenement in question for the last more than 60 years.
It is the requirement of fundamental principle of justice that a person should not be condemned without having a reasonable -opportunity of showing cause in his defence. In the circumstances the above contention of learned counsel cannot be accepted.
11. For the reasons stated above and in the circumstances of the case I am of the opinion that the ex parte order passed against the appellant on 22.3-1976 cannot be sustained. Accordingly this appeal is
(1) AIR 1936 Mad. 660 ' accepted and the ex parte order passed on 22-3-1976 and the orders of the learned lower Courts are set aside. The case is remanded to the concerned Rent Controller with the direction that he should allow the appellant tenant to appear and defend the case and that after giving reasonable opportunity of being heard to the parties, he shall decide case in accordance with law.
' Parties to bear their own costs of this appeal.