1. MUHAMMAD FARRUKH IRFAN KHAN, J. Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner assails the order dated 20.7.2010 of the learned Additional District Judge, Faisalabad accepting appeal of Respondent No. 2 against order of the learned Rent Controller, Faisalabad dated 2.4.2010 whereby his application seeking setting aside of ex parte order dated 17.3.2008 was dismissed.
2. 2.Brief facts of the case are that, the petitioner filed ejectment petition against respondent No. 2 seeking his eviction from House No. P-141, Al-Karim Town, Chak No. 224/RB, Tehsil City, District Faisalabad, on the Grounds of wilful default in payment of monthly rent and bona fide personal need. Respondent No. 2 did not appear before the learned Rent Tribunal despite his service through proclamation ,issued in the newspaper, therefore, ex-parte .proceedings were initiated against him on 19.3.2007. The learned Rent Tribunal recorded ex parte evidence of the petitioner and vide order dated 17.3.2008 passed the eviction order against respondent No. 2. The petitioner later on filed execution petition and got possession of. the demised premises through bailiff of the Court on 8.10.2008. Thereafter, respondent No. 2 filed application seeking setting aside of ex parte order (dated 17.3.2008, on the ground that he was not served at correct address and the petitioner managed to obtain fake report of his service in collusion with the Process Server. The petitioner contested the said petition by filing his written reply. The learned Rent Tribunal framed issues and after recording evidence of both the parties dismissed the application of respondent No. 2, vide order dated 2.4.2010. Respondent No. 2 filed appeal, which was accepted, vide order dated 20.7.2010. Aggrieved, the petitioner has filed the instant writ petition.
3. 3.Learned counsel for the petitioner contends that the impugned order of the lower Appellate Court is contrary to law and facts on record: that the impugned order suffers from misreading and non- reading of material evidence on record: that findings of the learned lower Appellate Court are based on surmises and conjectures; that through the impugned order reasoned order of the learned Rent Tribunal has illegally been set aside; that the learned lower Appellate Court has misread the record to the effect that the petitioner had failed to make mention of the suit for specific performance filed by respondent No. 2 against Muhammad Akram etc. In this regard he submitted that at the time of filing of the ejectment petition respondent No. 2 had not been impleaded as defendant in the said suit as such the petitioner had not committed any concealment; that the issue of ownership could not be resolved by the Rent Tribunal: that possession of the demised premises had already been taken over by the petitioner as such respondent No. 2 should have recourse to the Civil Court; and that the impugned order is liable to be set aside.
4. 4.Conversely, learned counsel for respondent No. 2 has supported, the impugned order of the learned lower Appellate Court by contending that it does not suffer from any illegality and has been passed in accordance with law; that service of respondent No. 2 was not proved on record as notice was not sent at his correct address; that report of the Process Server was fake which stood proved through the evidence produced by respondent No. 2; that address of Muhammad Ilyas, R.W.2, which he mentioned at the time of recording of his evidence is different from the address he has given at the time of attestation of the notice that R.W.2, was not a trustworthy and reliable witness as such his evidence could not be relied upon to proceed exparte against the respondent.
5. 5.Arguments "earl. Record perused.
6. 6.The learned 'lower. Appellate Court has set aside the ex parte eviction order of the ground that respondent No. 2 was not duly served in the ejectment proceedings. The petitioner in order to prove service of respondent No. 2 produced Muhammad Ali, Process Server as R.W.1. He stated that respondent No. 2 had refused to accept service of the notice whereupon he affixed the same at the door of his house and recorded evidence of one Muhammad Ilyas in this regard. The evidence of R.W.1 is not consistent with the contents of his report made at the back of the notice. In his evidence R.W.1 stated that he asked respondent No. 2 to receive notice but he avoided and refused to accept notice. R.VV.2 also supported this stance of R.W.1. On the contrary, according to the report of the Process Server/R.W.1 respondent No. 2 did not meet him and his wife -allegedly refused to accent notice. This contradiction makes service of respondent No. 2 highly and lends support to the case of respondent No. 2 that his service was (sic) A careful scanning of the evidence on record shows that Muhammad Ilyas when appeared to record his evidence disclosed his home address as "Rabbani Colony Gali No. 7, Faisalabad" whereas on the notice his address is stated as House No. 3043/1 Karim Town, Faisalabad. All these discrepancies in evidence produced by the petitioner justify the findings of the learned lower Appellate Court that respondent No. 2 was not duly served with the notice of ejectment petition, It is settled principle of law that no one should be condemned unheard. In the present case, respondent No. 2 has been deprived from defending his case before the learned Tribunal. He claims to be in possession of the demised house on the basis of an agreement to sell entered into between him and Muhammad Akram etc. against whom he has filed a suit for specific performance in which the present petitioner is also arrayed as a defendant.
7. The question whether respondent No. 2 was inducted in the -demised house as a tenant by Muhammad Akram etc. or not require adjudication of the matter on merit. In these circumstances, the learned lower Appellate Court has rightly set aside the ex parte order of the learned Rent Tribunal.
8. 7.As a sequel to above discussion, the instant petition is dismissed. Since this is a rent matter and requires expeditious disposal, therefore, the learned Rent Tribunal.is directed to decide the ejectment petition on merit within a period of four months from the date of receipt of this order.