' This appeal is directed against the order dated 4th May, 1980 passed by the learned District Judge, Karachi, in Rent Appeal No, 118 of 1979, whereby the said appeal was dismissed and the order passed by the learned Rent Controller in Rent Case No, 3470 of 1977 dismissing the application under Order IX, rule 13, C. P. C. Was maintained.
2. The brief facts of the case are that an application for ejectment was filed against the appellant by the respondent in the Court of IIIrd Rent Controller, Karachi, on 10th October, 1977. The above case was registered as Rent Case No, 3470 of 1977 and the learned Rent Controller ordered issuance of notice to the appellant and fixed the hearing on 17th November, 1977. The said notice as per bailiff's report, could not be served personally upon the appellant, though, according to the report he allegedly went to serve the notice on 8th November, 1977 when the appellant was found absent. On 12th November, 1977 according to the allegation in the said report the appellant was present. But he after going through the notice avoided the service. He, therefore, after enquiry affixed the notice on the outer door of the house of the appellant. The report was made by the bailiff on 16th November, 1977 which was neither attested by any witness nor the name of any person from whom alleged enquiry was made was given.
3. According to the diary sheet of 17th November, 1977 the following proceeding took place on that day:- "Applicant present. P.
0. Is on leave. Adjourned to 19th January, 1978 for summons."
4. The diary sheet of 19th January, 1978 does not indicate as to what proceedings took place but in the margin in the space near the place where the date 17th November, 1977, the date of 19th January, 1978 is mentioned and an endorsement appears under the signature of one "Rafiquddin" stating "Notice waived." The diary of 29th January, 1978 reads as under :- "Case called. The opponent's brother present. Applicant and his Advocate were absent. Case adjourned for written statement. Put off to 6th March, 1978."
5. It appears that in the meantime the case was transferred to the Court of the IV Rent Controller/15th Civil Judge, Karachi by administrative orders and the diary of 6th March, 1978 by the transferee Court reads "Applicant's Advocate present. Opponent called absent. Opponent has waived the notice of transfer in the previous Court and on the last date his brother was present. Today no body is present and no written statement has been filed. I, therefore, declare the opponent ex parte. Put off to 11th March, 1978.'
' On 11th March, 1978 applicant's advocate filed ex pane proof (affidavit) which was placed on the file. The P.
0. Was on leave and the case was adjourned for orders/hearing to 22nd March, 1978, when the case was again adjourned to 26th March, 1978. On the last date mentioned, in the presence of the Advocate for the respondent/landlord, the order was announced and the appellant was granted two months' time to vacate the premises.
6. Subsequently on 3rd July, 1978 the respondent/applied for execution of ex parte order of ejectment passed on 26th March, 1978 which was ordered to be fixed for hearing on 29th March, 1978 for which date notice was ordered to be issued to the appellant/judgment-debtor. The notice was served upon the appellant personally on 21st September, 1978. The diary sheet of 25th September, 1978 shows that the decree-holder was present and judgment-debtor was also present but he did not file any power of any Advocate but undertook to file objections for which purpose the case was adjourned to 23rd October, 1978. On the last mentioned date none appeared for the judgment-debtor and accordingly the writ of ejectment was ordered to be issued and case was ordered to be put up on 29th October, 1978. On 31st October, 1978 the tenant appeared and the case was adjourned to 6th November, 1978.
7. It may be noted here that in the meantime on 21st October, 1978 application was filed by the appellant judgment-debtor for stay of the writ of ejectment to enable him to apply to the Rent Controller for setting aside the ex parte order or to file an appeal against ex parte order. And thereafter on 26th November, 1978 an application under Order IX, rule 13 read with section 151, C. P.
C. Was filed in the court of the IVth Rent Controller to set aside the ex parte order of ejectment and to hear the case on merits. This application was supported by the affidavit wherein it was stated that the appellant was never served in the case with any notice and that the respondent with mala fide intention had managed to obtain ex parte order for his ejectment of which he came to know only subsequently. He further deposed that before 31st October, 1978 he was not at all aware about any proceedings for ejectment initiated by the respondent, that he has no brother by name Rafiquddin and he never authorised any such person to attend the proceedings in the above case of which he was not at all aware. It was also stated that no notice was ever pasted on the door of his house.
8. After hearing the parties the learned Rent Controller by an order passed on 4th March, 1979 dismissed the application. An appeal was filed against the said order which was also dismissed by the learned District Judge by order passed on 4th May, 1980 against which the present appeal has been filed.
9. I heard the learned counsel for the parties and I find that the orders passed dismissing the application for setting aside the ex parte order cannot be maintained. The order of the Rent Controller dismissing the application under Order IX, rule 13, C. P. C. Proceeded on the assumption that the appellant had come to know of the institution of the case against him as he was served by affixation of the notice and through his brother Rafiquddin and that he was aware of the order of ejectment passed against him on 21st September, 1978 when he was personally served with the notice of the execution application. Accordingly the learned Rent Controller held that there was no merit in the application for setting aside the ex parte order and that there was no mala fide intention on the part on the landlord to manage to obtain ex parte order of ejectment or to get ex parte writ of possession issued against the appellant. It was further observed that the application dated 21st September, 1978 filed against the setting aside of the order of ejectment was not within time. The learned Rent Controller with the observation that the appellant intended to protract the proceedings of ejectment against him, dismissed the application filed under Order IX, rule 13, C. P.
C. Read with section 151, C. P. C.
10. In the appeal filed against the aforesaid order the learned First Appellate Court observed that the allegation of the appellant that he had no brother by name of Rafiquddin, as stated in his affidavit or that the said Rafiquddin might have been set up by the other party to get the ex parte order mala fide, could not be accepted as the appellant did not produce any proof in support of his these contentions except his word that Rafiquddin was not his brother. The learned Appellate Court proceeded to observe that the appellant was avoiding service of notice of ejectment and that though the notice of execution application was served personally on him, still he avoided to appear in the Court and instead sent his son, who undertook to file objections, but none appeared on the next date of bearing nor any objections were filed. The learned First Appellate Court, while noting the fact that the application for setting aside the ex parte order made under Order IX, rule 13, C. P. C. Was dismissed by the Rent Controller as barred by time, further proceeded to hold that the substituted service effected was effectual as if made on him personally and that the bailiff's report showed that he attempted to serve him thrice but on refusal to accept the notice he had affixed the same on the outer door of the appellant's house. It was further observed by the learned Appellate Court that the appellant had knowledge not only of the ejectment application but also of the execution application and instead of personally appearing in the Court, he sent his brother in the Court and then his son. For the above reasons the learned Appellate Court dismissed the appeal by an order passed on 4th May, 1980.
11. With the assistance of the learned counsel for the parties I have gone through the record. At the very outset it would be seen that the notice allegedly affixed on the outer door of the appellant's house on 12th November, 1977 was for appearance in the Court of the IIIrd Rent Controller on 17th November, 1977 and secondly the alleged report of the bailiff neither shows that the appellant was identified by any person nor the name and address of the person, who allegedly identified the appellant or from whom inquiry was made and in whose presence the copy of the notice was affixed, has been disclosed. It cannot therefore be said in the face of the affidavit of the appellant that summons were ever tendered or served upon him or that he ever refused to accept the notice.
The bailiff's report does not show that he knew the appellant personally.
' Another factor which goes to the root of the matter and vitiates the entire proceedings is that the aforementioned notice required the appellant to appear in the Court of Hird Rent Controller on 17th November, 1977. The case was subsequently transferred to the Court of the IVth Rent Controller, who proceeded ex parte against the appellant on 6th March, 1978 on the assumption that one Rafiquddin had appeared on 29th January, 1978 and had waived the notice of transfer in the previous Court. In the first place there is no proof on record that Rafiquddin is the brother of the appellant and in the second place in the absence of any authority from the appellant the alleged brother of the appellant could not waive the notice on behalf of the appellant for Appearance in the transferee Court. The necessity of the service of notice from the transferee Court upon the appellant before proceeding ex parte order hardly requires any emphasis in view of the observations of the Honourable Supreme Court of Pakistan in the case of Reiman Weaving Factory v. IDBP where the following observations made in the case of Kirshin Lal Malhotra v. Madan Lal and otherswere cited /with approval : "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.....And further that when such notices are not given proceedings taken against the defendant after transfer would be set aside."
In view of the above observation of the Honourable Supreme Court of Pakistan the ex parte order of ejectment passed by the transferee Court without any notice to the appellant is liable to be set aside.
' The impugned orders are also liable to be set aside as there is no sufficient material on record to show that the appellant was duly served with the notice initially of the case or that any such notice was ever affixed on the outer door _of his house. It is also pertinent to note that the bailiff was not examined in the case to show that notice was ever tendered or refused by the appellant or that the notice was affixed on the outer door of the house of the appellant. We have already noted above that neither the name of the person who identified the appellant nor of the person from whom alleged inquiry was made had been disclosed in his report by the bailiff. Obviously this report cannot be relied upon.
' The observation of the learned First Appellate Court that the appellant had not produced any proof that he has no brother by the name of Rafiquddin except his word, also cannot be accepted, in the face of the statement made on oath by the appellant. After this solemn assertion, the burden of proof (if any) which lay upon the appellant, stood discharged.
12. The last question which remains for consideration is as to whether the application filed by the appellant under Order IX, rule 13, C.P.C. On 26th November, 1978 for setting aside the ex parte order passed on 26th March, 1978 was barred by time. It would suffice to refer to the case of Rehman Weaving Factory, mentioned above where the Honourable Supreme Court pointed out the distinction between the words "summons" and "notice". The Honourable Supreme Court in the above-referred case-pointed out that the word "Summons" has been used in Article 164 of the Limitation Act in contradistinction from "notice" and other form of processes and that the period prescribed under Article 164, Limitation Act would not be attracted to the cases where "summons" instead of "notice" have been issued., Thus the ground on which the above application was dismissed as barred by time, is obviously erroneous.
13. For the reasons stated above, the appeal is accepted. The impugned orders passed by the learned Lower Courts are set aside and the case is remanded to the learned Rent Controller concerned with the direction to allow the appellant to appear and defend the proceedings and thereafter proceed to decide the case on merits according to law.
' The above appeal for reasons to be recorded separately was disposed of on 14th December, 1981.
The above are the reasons for the same. PLD 1981 S 21 PLD 1950 Lah. 82