1. The appellant has filed appeal against the order dated 23-4-1980 in Rent Case No. 5486 of 1979 of the Second Rent Controller, Karachi directing him to hand over vacant possession of Shop No. 12 in the Premises No. 2/877-C Liaquatabad, Karachi.
2. The facts briefly stated are as under :- Late Muhammad Siddiq, father of the appellant had taken lease of Shop No. 12, Plot No. 2/877-C Commercial ,Area, Liaquatabad, Karachi in the year 1971 at a monthly rent of Rs.35. After the death of .Muhammad Siddiq, the respondent accepted the appellant as his tenant.
3. On 10-12-1979 the respondent filed application under section 15 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) praying that the appellant be directed to hand over vacant possession of the shop to him. He had mentioned two grounds in the aforesaid application, firstly that the appellant had failed to tender rent since May, 1979 and had, therefore, committed default; and secondly, that he required the premises for personal bona fide use of his son, namely, Wasim Hyder who wished to start business. Notices were issued to the appellant by registered post acknowledgment due and also through the bailiff of the Court. For the dates of hearing 12-1-1980 and 29-1-1980 there was the endorsement by the Postal Authorities on the two registered letters showing that the same had been refused and there was also the endorsement of the bailiff to the effect that the addressee was said to have gone away. On behalf of the respondent his advocate, therefore filed application for service of the notice by publication in daily newspaper, and the application was supported by an affidavit to the effect that, according to the bailiff's report and also the remarks of the postal authorities, the appellant could not be served with notice in the ordinary manner. The learned Rent Controller granted the application and the notice appeared in the issue of the Daily Morning News dated 5th March, 1980 for the date of hearing on 8th March, 1980. On that date therefore since the appellant remained absent, an order was passed by the learned Rent Controller that the matter would be proceeded with ex parte. On 27-3-1980 the respondent filed affidavit in support of the application for ejectment which was not rebutted and, therefore, the impugned order was passed on 23-4-1980.
4. I have heard Mr. Faizanul Haq, Advocate for the appellant and Mr. Habibullah Samo, Advocate for the respondent.
5. It is the case on behalf of the appellant that he had gone to Saudi Arabia in the year 1979 and the respondent was aware of the fact. It is further his case that he had sent rent due, that is Rs.500 through Bank Draft No. 330557 issued from A1 Raj hi Company far Currency Head Office Riyadh and that on 19-5-1980 the appellant's attorney had gone to pay rent to the respondent who however informed him that order of ejectment dated 23-4-1980 had been passed in Rent Case No. 5486 of 1979 and, there--fore, he will not accept rent. Application for grant of certified copy of the impugned order was made on 22-5-1980. It is, therefore, the case of the appellant that he had not committed any deliberate default in the payment of rent and that since he was not given an opportunity to show that the premises were not required for the bona fide use of the landlord or his son, it. Is not a case in which the learned Rent Controller should have been satisfied under section 15 on the two aforesaid grounds to order him to put the landlord in possession of the premises. It is further the case of the appellant that the ex parte order was obtained by the respondent by fraud and misrepresentation inasmuch as he knew that the appellant had gone to Saudi Arabia temporarily and, therefore, he took the opportunity for getting the ex parte order.
6. With regard to the allegation that the ex parte order was obtained mala fide by getting the notice published in a daily newspaper which he could not have read as he was in Saudi Arabia, a perusal of the record of the learned Rent Controller would show that summons were, in the first instance, addressed by registered post and also were given to the bailiff for service on the address of the shop which is the subject matter of the dispute. However, no fault can be found with the procedure adopted, since from the record of the Rent Controller it is apparent from the agreement of lease that the appellant even in the agreement had not given any address than the number of the shop in the building owned by the respon--dent on which the notices were ordered to be issued. There is nothing on the record to suggest that any other address was either given or left by the appellant with the landlord. In the circumstances even assuming that as alleged by the appellant the landlord knew about his going to Saudi Arabia, there was no other course available except to apply to the Rent Controller for substituted service through publication in a daily newspaper, as was done in the case. Mr. Habibullah Samo, the learned Advocate for the respondent has pointed out that in the circumstances of the case there could be no question of fraud with regard to the service of summons and that no illegality of any sort has been pointed out with regard to the procedure adopted by the learned Rent Controller for service of the notice on the appellant.
7. With regard to the other ground about default in payment of rent it is the contention of the appellant in the Memo of Appeal that rent used to be paid after 5-6 months each time. This contention however is not borne out by the lease deed executed by the applicant and it may further be stated here that no documents of any sort have been produced which could indicate that the landlord had accepted the alleged practice of payment of rent after 5-6 months.
8. The impugned order of the Rent Controller is dated 23-4-1980 whereas the instant appeal was presented on 28-5-1980 section 21 of the Ordinance prescribes a period of 30 days from the date of the order for preferring an appeal to the High Court. The appeal filed is, therefore, patently time barred and Mr. Habibullah Sarno, the learned counsel for the respondent, has referred to a decision of this Court in Syed Muhammad v. Mazharali Khan (PLD 1981 Kar. 76), in which the question for consideration arose whether section 5 of the Limitation Act applies to appeals under section 21 of the Ordinance and the finding was in the negative. The further contention that since the impugned decision was obtained by fraud, there is no limit of time for getting it set aside also cannot be pressed into service for the simple reason that a finding has been given that there was no fraud involved. Under the circumstances, there is no weight in this appeal which is dismissed, however, with no order as to costs.