SHAHID BILAL HASSAN-J: Precisely, on 20.01.2012, the respondent filed an eviction petition under section 17 of the Cantonments Rent Restriction Act, 1963 against the present appellant, wherein the appellant was proceeded against ex parte on 03.07.2012 and after recording ex parte evidence, the ejectment petition was accepted vide ex parte order dated 19.10.2012. The appellant on gaining knowledge filed an application seeking setting aside of ex parte order dated 19.10.2012 alongwith an application under sections 5 & 14 of the Limitation Act, 1908 for condonation of delay. The respondent did not file reply to the aforesaid applications and also did not controvert the affidavits, attached therewith. However, the learned Rent Controller vide impugned order dated 16.10.2014 dismissed the said applications; hence, the instant appeal.
2. Heard.
3. Considering the arguments and going through the record, it is observed that service upon the appellant through ordinary means could not have been affected as there is nothing on record to suggest as such and admittedly service of notice upon one Yasmeen was affected, who was not authorized agent of the present appellant because nothing to show as such has been brought on record by the respondent. Rule 9 of the Order V, Code of Civil Procedure, 1908 provides that:- '9. Delivery or transmission of summons for service. Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent to the proper officer to be served by him or one of his subordinates.' (Emphasis supplied)
Meaning thereby no proper service upon the appellant was effected. However, the learned Rent Tribunal without recording statement of process server as required by Rule 19 of Order V, Code of Civil Procedure, 1908, resorted to substituted service under Rule 20, which otherwise should have been recorded and after being satisfied that service upon the appellant was not possible through ordinary means, might have proceeded to get procured service of the appellant through substituted means of publication of Court notice in the newspaper. Such practice and procedure has totally been overlooked and bypassed. In this view of the matter, it can safely be concluded that the appellant has been condemned unheard as no proper service upon the appellant was effected so as to enable him to contest the ejectment petition filed by the respondent, especially when it is admitted that at the time of filing of the ejectment petition the demised premises was lying vacant.
4. The application of the appellant for setting aside ex parte order was duly supported by an affidavit, which was not controverted by counter affidavit by the respondent as she did not file written replies to the said application and counter affidavit, therefore, the same would be considered to have been accepted and conceded to by the respondent. Reliance is placed on Abdul Karim v. Muhammad Ibrahim (1976 SCMR 79) and Nasim Nizami v. Habib Bank Limited (2006 CLC 1213 Lahore). Even in such a situation, the limitation for filing application for setting aside ex parte proceedings and order is governed by Article 181 of the Limitation Act, 1908 which provides three years limitation to approach the Court in this regard. Therefore, the said application was well within time. In this regard reliance is placed on M. Imam Ud Din Janjua v. The Thal Development Authority through The Chairman, T.D.A., Jauharabad (PLD 1972 Supreme Court 123), Mandi Hassan alias Mehdi Hussain and another v. Muhammad Arif (PLD 2015 Supreme Court 137) and Ghulam Qadir and others v. Sh. Abdul Wadood and others (PLD 2016 Supreme Court 712). Apart from the above, the ex parte proceedings were initiated on the date which was not fixed for hearing rather it was fixed for further proceedings, therefore, such penal order should not have been passed against the appellant. In this regard reliance is placed on Allah Ditta v. Aziz Din (PLD 1981 Lahore 508).
5. In view of the above, it is observed that it is requirement of law that one should not be condemned unheard, that is why principle of Audi Alteram Partem has been stressed to be followed by the Higher Courts especially when valuable rights of the parties are involved in the lis. It has time and again been held by this Court as well as Supreme Court of Pakistan that cases ought to be decided on merits and technicalities should be avoided. The given circumstances were sufficient and plausible reasons for condoning delay in filing application seeking setting aside ex parte proceedings as well as order were provided.
6. For the foregoing reasons, the appeal in hand is accepted, impugned order dated 16.10.2014 is set aside, consequent whereof by allowing application for setting aside ex parte order dated 19.10.2012 and proceedings dated 03.07.2012, the case is remanded to the learned Rent Controller with a direction to decide the same afresh after obtaining written reply of the appellant, framing of issues, if required and recording evidence, in accordance with law and on merits, within a period of two months from the date of receipt of certified copy of the judgment of this Court. No order as to the costs.