1. ' The respondent is the landlady of the house bearing No,25-P, Block No,2, P.E.C.H. Society, Karachi, first floor of which was rented out to the appellant under an agreement dated 15th November, 1976 at a monthly rent of Rs,600. The appellant had advanced Rs,10,800 of which Rs,4,200 were towards security deposit and Rs,6,600 towards advance rent for 11 months from 15th November,1976. On 21st February,1981 the respondent filed an ejectment application against the appellant alleging that the appellant has defaulted in payment of rent from 1st June, 1979 to 31st January,1981, sublet the said premises and further that she requires the premises in good faith for her own occupation as well as for the occupation of her son Rashid.H.Zaidi. The learned Controller issued notice to the appellant for 10th March,1981. The bailiff returned the notice unserved with the remarks that on the given address when he went for service one boy was present who stated that the tenant was not present.
2. Fresh notice was issued for 26th March,1981 but it was also returned unserved by the bailiff with the remarks that woman present in the house stated that the appellant was not available there. On 29th March,1981 the respondent filed an application under Order V, r. 20, C.P.C. Praying that the notice be served on the appellant by affixing a copy thereof on some conspicuous place in the Court house and also some conspicuous place of the demised premises, by registered post A/D and by publication in the newspaper. This application was filed on 29th March,1981 but when the matter came up before the Controller on 15th Apri1,1981 it was postponed to 18th April, 1981 for further order. On 18th April, 1981 application under Order V, r. 20, C.P.C. Was granted and the matter was fixed on 6th May,1981. On that day it was noticed by the Controller that the notice had been published in daily newspaper 'Hurriyat' dated 29th April, 1981, the notice was also affixed on the demised premises, but it was not sent to the appellant by registered post A/D. The Controller therefore did not pass any ex parte order but directed that fresh notice be issued to the appellant by registered post A/D, for 28th May,1981. On 28th May,1981 as postal A/D receipt had not been received, the matter was adjourned to 2nd July,1981, on which date the Controller noted that the registered letter was returned undelivered with endorsement 'left'. The bailiff's report dated 5th May, 1981 stated that he had affixed the notice on the outer door of the demised premises as well as on the Court notice board. Prior to this notices for hearing fixed on 26th March,1981 and 15th April,1981 were sent by registered post and had been returned unserved with the note 'left'. On 4th July,1981 the service on the appellant by publication and affixation was held good, and the appellant was declared ex parte. The matter was adjourned to 19th July,1981 for ex parte proof. On that date matter was adjourned to 26th July, 1981 and ex parte proof was filed on 29th July,1981 and the matter was adjourned to 30th July,1981. On that date the matter was put off to 11th August,1981 as the order was not ready. Again it was adjourned to 7th August,1981 for orders and again to 22nd August 1981 when the ejectment order was passed. The respondent filed execution application on 29th September,1981 in the Court of the Controller and VIIth Senior Civil Judge, Karachi. Notice of the execution application was. Issued to the appellant for 14th October,1981 and the bailiff reported that the house was locked. On 15th October,1981 another notice was issued for 18th October,1981 and the same date the bailiff submitted his report that as the premises was locked he has affixed the notice on the outer door of the demised premises. The execution application was granted on 18th October,1981 and Writ of Possession was issued returnable on or before 25th October,1981. On 21st October,1981 the bailiff was permitted to break open the lock in case premises was locked, with police aid and prepare inventory of articles and deliver the same for safe custody. On 21st October,1981 with the police aid the writ of possession was executed as reported by the bailiff and the inventory of the goods lying in the house was also prepared. On 22nd October, 1981 the respondent logged report with the police that one Nadir Shah entered into the house in the night and has taken possession. It seems that the appellant filed a Suit No,4621/81 in the Court of XIXth Civil Judge and order of status quo was passed on 25th October,1981.
3. ' Mr. Muhammad Sharif the learned counsel for the appellant has contended that the ex parte order of ejectment was obtained by misrepresentation and also without effecting due service on the appellant. In this regard the learned counsel first attacked the order passed by the learned Controller for effecting the service by publication. The application for publication was made on 29th March,1981 when the notice had been sent only for the first time and the bailiff had reported that the appellant was not available. In the supporting affidavit it was stated that notices were issued to the appellant through bailiff and by registered post and the bailiff has reported that whenever he went to effect the service, he was told by the inmates of the demised premises that the appellant was not there. It further stated that many attempts were made in the ordinary course without success and further that the appellant was avoiding to receive the summons. The statement made in the affidavit does not seem to be correct because when the application was filed on 29th March,1981 only one notice for 10th March,1981 had been issued and returned unserved.
4. The learned counsel for the appellant contended that the appellant can challenge the order passed by the Controller for substituted service, and further that the circumstances of the case did not warrant for such an order. Reliance has been placed on AIR 1935 Lah.169, AIR 1931 All. 727 and AIR 1957 And. Pra.1. There can be no cavil with the proposition that the appellant Court can examine whether on the facts and circumstances of the case an order for substituted service could be passed by the trial Court. Before an order for substituted service is made, the Court should be satisfied that the party cannot be served in the ordinary course, and several attempts in the ordinary manner have been made. In the present case only two attempts had been made in which it was reported that the appellant was not present. It may also be noted that the bailiff while attempting to serve two notices had visited the demised premises only once on each occasion. In fact in order to show that proper attempts have been made, the bailiff should have visited several times. If after several attempts the appellant could not be served then it was possible to state that he was avoiding the service. The statement in the supporting affidavit filed with application under Order V, rule 20, C.P.C. That many attempts have been made and the appellant was keeping out of the service cannot be supported from the facts on record. Only two attempts were made by the bailiff therefore it is not possible to conclude that the appellant was avoiding the service and he could not be served in the normal course. In these circumstances the order passed for substituted service by publication was not proper. It, therefore, follows that the notice served by publication could not be termed as due service on the appellant.
5. ' The other mode of service adopted by the learned Controller was by pasting the notice on the outer door of the premises. Order V, rule 17 provides that where the defendant or his agent refuses to sign the acknowledgment or where the serving officer after use of due and reasonable deligence cannot find the defendant and there is no agent empowered to accept the service on behalf of the defendant, nor any other person is available on whom the service can be made the serving officer can affix the notice on the outer door of the premises or some other conspicuous place of the house of the defendant. It is correct that this rule is not applicable to proceeding before the Controller but its principles can be applied. If the Controller resorts to the procedure of service provided by Code of Civil Procedure then its principles have to be followed. The usual rule for service by pasting the notice which is a rule of justice also, is that the serving officer shall first make due deligence to find the party. The pasting is allowed if after such search the defendant is not found and further that no one on his behalf is available to accept the service. The Serving Officer, has therefore to make all efforts to serve the party or his agent if available. It is only after exhausting this procedure that he can affix the notice on the outer door. In the present case the learned Controller had ordered for affixing the notice but the pre-conditions for making such an order were lacking. Two visits by a serving officer are not sufficient to show that due and reasonable deligence was made by him. The process-server should take pains to find out the party and should visit the premises several times to serve him and make enquiry about his whereabouts and follow him. The law primarily requires personal service as this is the best mode of bringing the action to the knowledge of the defendant. Only when such attempts have failed, resort can be made to other modes. Reliance had been placed on PLD 1968 Lah.639 and AIR 1930 Lah.192.
6. ' Mr.Ikram Ansari the learned counsel for the respondent has contended that the provision of C.P.0 are not applicable and further that as the Controller had decided to adopt the mode of service by affixation it should be treated as a proper service. Reliance has been placed on PLD 1976 SC 472. It is true that the provisions of C.P.0 are not applicable to the rent proceedings, but its principles can be applied. Once the Controller resorts to apply the procedure provided by C.P.0 then all such preconditions which have been imposed by such provisions should be complied with. Even if these provisions are not applied strictly their principles can be applied. One cannot expect to follow a procedure and ignore its important ingredients. The procedure provided by C.P.0 is with a view to further cause of administration of justice and therefore while adopting the principle the Controller is to see that the demand of justice is met. While the Controller had ordered for service by affixation no attempt was made to verify that such pasting was actually carried out. The requirement as provided by Order V, rule 17 is that it would be proper if such pasting is done in the presence of witnesses. The bailiff has nowhere stated that pasting was witnessed by any witness at all. In the first two reports he has stated that no witnesses were available, but once a service was being affected by affixing, it was the duty of the serving officer to have seen that it is carried out in the presence of the witnesses. Even if Order V, rule 17 is not applicable the Controller ought to have adopted this procedure to avoid mischief and ascertain correct and proper service which was likely to deprive the appellant of a valuable right. From the case relied upon by the learned counsel for the respondent it is not clear whether the affixation was carried out by the serving officer in the absence of the witness. The provisions of law are merely to advance the cause of justice and to maintain balance between the parties. In the present case since the learned Controller did not follow the proper principle of law for substituted service by publication as well as by affixation, the subsequent proceedings leading to the passing of the ejectment order and its execution were illegal. So far the notices sent by registered post A/D are concerned the same has been returned with endorsment 'left'. From this endorsement no presumption can be drawn that the appellant was avoiding service.
7. For these reasons the impugned orders are set aside. The case is remanded to the Controller before whom both the parties are directed to appear on 18th February,1984. The appellant should file written statement on the same oath and the learned Controller should proceed with the case speedily and decide it within a period of three months i,e, upto 18th May,1981. The office is directed to return the R & P immediately.
8. ' The appeal is allowed.