1. ' ABDUL HAYEE KURESHI, C.J.--The present petition has been filed by Messrs B.P. Biscuit Factory Limited, in the following circumstances: - ' The petitioners are manufacturers of Biscuits Sweets and Toffee etc. It is stated that the petitioners are not liable to pay excise duty under the Central Excise and Salt Act, 1944 although on the manufactured goods they are liable to pay sales tax. It is stated by Mr.Nasim Muhammad Khan that such tax is payable at the factory gate before the goods leave the factory premises.
2. ' On 3-2-1982 some consignments were found being removed without any legal requirements regarding payment of sales tax so that a party of Excise and Land Customs intercepted these vehicles in which the manufactured goods were being taken out. The goods as well as vehicles were seized. On 9-2-1982 a letter was received by the petitioners from respondent No,3 stating the fact of removal of such goods and the petitioners were advised either to present the four vehicles in the office of respondent No,3 or furnish bank guarantee equivalent to the amount of the price of these vehicles. A pro forma of Bank Guarantee was also enclosed. Simultaneously the petitioners were asked to produce the vehicles or the required bank guarantee within 3 days. It was at that stage that the present petition was filed on 15-2-1982.
3. ' In the petition the prayer clause is extremely wide. Relief has been sought for a declaration that the seizure of the vans and the goods were illegal, that the notice dated 9-2-1983 from respondent No,2 was illegal, that the demand for bank guarantee was illegal, that confiscation of the records of the petitioner was mala fide and illegal, that the collection of sales tax was also illegal and that all actions of whatever kind taken by the Central Excise Authorities was without lawful jurisdiction.
4. Comments were called by this Court and the same have been submitted by respondent No,3, The relevant paras in the comments are Nos.21, 25, 28 and 29'. In these paras it is stated that the petitioners were taking away the goods without payment of sales tax and such removal was in violation of law. It is further stated that the vehicles were liable to confiscation. It has further been stated that the Central Excise Authorities have exclusive jurisdiction to deal with the sales tax collection from the petitioners, as such functions, have been entrusted to them by the Central Board of Revenue under Sales Tax Circular No,7/81, Reliance has been placed on subsection (2) of section 5 of the Sales Tax Act which authorizes the Central Board of Revenue to appoint any person by name or by virtue of office to exercise powers of authorities under the Sales Tax Act in respect of any matters or in respect of any case or class of cases. In fact subsection (2) of section 5 further states that the persons so appointed shall have concurrent jurisdiction with the Authorities under the Sales.Tax Act. Mr.Nasim to that extent has made a statement that Circular No,7 had been issued by the Central Board of Revenue, appointing Officers of the collector ate of Central Excise as authorities within the meaning of section 5(2) of the Sales Tax Act but he however states that such appointment can be made only by notification and not by a circular.
5. ' In paragraph 28 of the comments it is further stated that the case of the petitioners shall be heard by an authorized officer who will adjudicate in the matter exercising original jurisdiction and if the petitioners have any grievance with such adjudication they will have a right of appeal before the other functionaries of the Federal Government.
6. ' By the several interim orders that have been passed the vehicles have been returned to the petitioners on some conditions.
7. ' The first question that has engaged our attention is the maintain ability of this petition at the present stage. Mr.Nasim Ahmed Khan states that the action of the respondent was without jurisdiction and, therefore, the constitutional jurisdiction of this Court will be attracted in spite of the fact that final orders have not been passed. Such jurisdiction in so far as seizure of the vans and goods is concerned is being challenged on the sole ground that action under the Sales Tax Act can be taken only by the functionaries under that Act and not by the functionaries under the Central Excise and Salt Act, 1944. To that extent Mr.Murtaza has invited our attention to a proviso that was added in subsection (4) of section 3 of the Sales Tax Act by Finance Ordinance No,XXIV of 1981, This proviso reads as follows:- "Provided that, in case of goods mentioned in clause (a) of subsection (1), the tax shall, where the Board so directs, be payable at the same time and in the same manner as the duty of excise under the Central Excises and Salt Act, 1944 (I to 1944) and the provisions of the said Act and the rules made there under shall so far as may be and with the necessary modification apply for the purposes of this Act as they apply for the purposes of the said Act."
8. ' Mr. Nasim Ahmed states that by this proviso the jurisdiction of the respondent was not attracted.
9. Much can be said on both sides but we refrain from interpreting this proviso as the Petitioner will have to contest his case before the respondents or the Sale Tax Officer and there was a probability that if we interpret this proviso the case of the Petitioner may be prejudged. We would like to avoid such determi nation as the functionaries who are respondents or even the officers in the Sales Tax Department can enter into all questions of fact as well as law.
10. ' As it is seizure of the vehicles does not appear to be illegal if the respondents have the power to seize the goods that had left the factory gate without payment of sales tax. After all the seizure of the vehicles was an act which can be justified on ground of necessity for unless the vehicles were seized the goods laden on the vehicles could not be seized and the amount of sales tax payable could not be assessed. Whether the vehicles are liable to confiscation or not, will also have to be considered by the respondents or the Sales Tax Officer, having due regard to the circumstances of the case. We will, therefore, not advert even to that aspect of the case at this stage.
11. There is a further reason which compels us not to grant relief in this matter at present. That is that adequate alternate remedy is available to the petitioneRs, In fact the petitioner will have a right of hearing not only before the respondents but even before the other functionaries of the Federal Government at the appellate stage. On the other hand if the respondents come to the conclusion on interpretation of the proviso of subsection (4) of section 5 of the Sales Tax Act that they have no jurisdiction, the matter will have to go before the Sales Tax Authorities for determination of the public charges that are payable. Even the Sales Tax Act has full machinery for appeals at higher forum if the sales tax officer decides the case adversely to the petitioner. These remedies against the order to submit or calling of bank guarantee forbid us from exercising the present jurisdiction.
12. ' We will in these circumstances dismiss this petition but observe that the respondents or any of them shall issue a notice to the petitioners to show cause in regard to any final action that they may propose to take. The petitioner shall then be heard and all the points that have been urged before us besides any other points that the petitioner may urge shall be duly taken into consideration by statutory functionaries who would pass an appropriate order in law. This they are bound to do.
13. ' The petition stands disposed of but subject to our observations in the last paragraph.
14. ' The interim orders in regard to custody of the vehicles shall however by consent remain in force until the respondents decide the case of adjudication or for a period of 9 months as from today, whichever date arrives first. The conditions attached to such vehicles by our interim orders shall also continue during the same time. There shall be no order as to cost.
15. Order accordingly.
16. 1984 M L 1) 71 [Karachi] Before Munawar Ali Khan, J Mst. HOOK HAI--Appellant versus WARIS MASOOD--Respondent First Rent Appeal No. 245 of 1980, decided on 1st March, 1984.
(a) Sind Rented Premises Ordinance (XVII of 1979)-- ---S. 19(2)--Ex parte eviction order, setting aside of--Even after passing ex parte eviction order, Rent Controller, held, could go into question of service of notice--Rent Controller coming to conclusion that there was no satisfactory proof that notice has been served, empowered to set aside ex parte order. 1p. 731 A Syed Ahmed All v. Muhammad Yaqoob 1983 CLC 1135 and Mashlakhuddin v. Syed Ali Haider 1982 SCMR 570 ref.
(a) Sind Rented Premises Ordinance (XVII of 1979)-- ---Ss. 15 & 21--Sind Chief Court Rules, r.107--Notice, service of-- Contention that serving officer not obtaining on original process endorsement by signatures or thumb-impression of at least one responsible person of locality before affixing a copy of process on outer door of appellant as such appellant could not be held to have been properly served with notice before passing ex parte order--Rent Controller not considering such aspect of case nor basing his order on such reasoning-- for consideration of contention in circumstances. [p. 73] B
(c) Sind Rented Premises Ordinance (XVII of 1979)-- ---Ss. 19(2) & 21--Tenant's application for setting aside ex parte eviction order dismissed--Order, held, became final in terms of S.21 of Ordinance, 1979. [p. 74] C A. Latif A. Shakoor for Appellant.
17. Moinuddin Ahmad for Respondent. Date of hearing: 27th February, 1984.
18. ' By this appeal, the appellant Mst. Hurbai has impugned the order dated 18-3-1980 of the IVth Rent Controller, Karachi declining to set aside the ex parte order whereby the appellant was required to be ejected from the demised premises.
2. The brief facts giving rise to this appeal are:- ' The appellant has been tenant of the respondent Waris Masood in respect of the disputed premises which is a residential house-cum-shop on Plot No,8/4, Firdous Colony, Karachi on monthly rent of Rs,65 since 1972, On 17-9-1975 the respondent instituted ejectment Case No,2228/74 seeking eviction of the appellant from the aforesaid premises on the ground of default in payment of rent from 1-6-1974 to 31-7-1974. The ejectment was vehemently opposed by the appellant who repudiated the allegations of non-payment of rent.
3. However, the ejectment application was dismissed by order dated 6-12-1977 owing to absence of the respondent and his counsel. Later on the same day the respondent appeared in the Court and moved an application for restoration of his dismissed application which was ulti mately restored.
19. However, the restoration was made ex parte in absence of the appellant who, according to the material available on record, could not be served by ordinary process and, therefore, substituted service was ordered against him and he was served through a notice published in the newspaper.
20. Despite the said notice the appellant remained absent. Accordingly the Controller after considering the evidence adduced by the respondent in support of his case passed the ex parte order directing ejectment of the appellant from the demised premises.
4. The appellant's case is that she came to know about the ejectment order after she was served with the notice in the execution proceedings taken out by the respondent for her ejectment.
21. Thereupon she moved an application for setting aside the ejectment order but her application was dismissed by the learned Rent Controller by the impugned order and hence she has filed the present appeal.
5. The learned counsel for the parties were heard at great length and with their assistance relevant record was also perused. It would be noticed that while passing the impugned order the learned Rent Controller was influenced by the only consideration that the Sind Rented Premises Ordinance, 1979 (hereinafter referred as the Rent Ordinance) does not permit him to set aside or review the ex parte order passed by him. In this connection reference may be made to subsection (2) of section 19 of the Rent Ordinance which places her on the powers of the Rent Controller to set aside the ex parte order. The said subsection is couched in the following words: "Where on the day fixed in the notice for the respondent to file written reply, it is found that notice has been served but the respondent has failed to file his reply without any reasonable excuse the Controller may, proceed to make an ex parte order and after such order has been made the Controller shall have no-power to rescind such order."
22. ' The language used in the above subsection came up for consideration in the case of Syed Ahmed Ali v. Muhammad Yaqoob 1983 CLC 1135 wherein the learned Single Judge held as follows: "I, however, feel that the question whether the Controller has no power to recall an ex parte order passed against a tenant even when he is satisfied that the notice of the proceedings was not duly served on him, is not free from difficulty on the language of section 19(2) of the Sind Rented Premises Ordinance. It seems that the section contemplates the passing of ex parte order if it is found by the Controller that "the notice has been served, but the respondent has failed to file his reply." If therefore, the Controller has the jurisdiction to go into the question of service even after the passing of the ex parte order under section 19(2). It will be appropriate for this Court to allow, in the first instance the Controller to examine the question."
23. ' More or less same view was taken by the Supreme Court in the case Mashlakhuddin v. Syed Ali Haider 1982 SCMR 570. The Supreme Court interpreted the aforesaid provision of law in the following words: "I find on a plain reading of this provision that in cases of this nature the Rent Controller have to keep two facts in mind and give a finding on the same. This subsection states that it should be found that the notice has been served and further that the default in filing of reply is without reasonable excuse. The use of the word "found" and the word "without any reasonable excuse" clearly mean and imply that the Rent Controller has to record a finding that a notice has been served and further that the default in making reply was without any reasonable excuse. Unless findings on these two facts are recorded, the Controller cannot give full effect to subsection (2) of section 19 of the Sind Rented Premises Ordinance."
24. It emerges from the above authorities that even after passing of the ex parte order the Rent Controller can go into the question of service of notice and if he comes to the conclusion that there is no satisfactory proof that notice has been served on the applicant he will be within his power to set aside that ex parte order.
25. On the point whether the appellant was properly served with notice before ex parte order was passed the learned counsel has made reference to Sind Civil Court Rules, particularly rule 107 which inter alia provides that if the person sought to be served cannot be found. the serving officer shall obtain on the original process the endorsement by signature or thumb-impression of at least one responsible person of the locality before affixing a copy of the process on the outer door of the same person. According to learned counsel for the appellant since the procedure contained in the above rule was not observed, order allowing substituted service was not called for and consequently the appellant could not be held to have been validly served with the notice before passing of the ex parte order. The above argument cannot, of course, be lightly ignored but in view of the authorities referred to above it would be initially for the learned Rent' Controller to consider the question of service of process and come to the definite finding for the purpose of setting aside the ex parte order. There is no doubt that the learned Rent Controller has not considered this aspect of the case nor has he based his order on such reasoning. The impugned order passed by him shows that he did not go into the controversy as to service of process on the appellant before he passed the ex parte order.
26. ' On the other hand, the learned counsel for the respondent has contended that appeal against the impugned order is not maintainable for the reason that it is not directed against the final order within the meaning of section 21 of the Rent Ordinance. The argument is obviously erroneous. In view of what has been stated in the foregoing paragraphs, it was within the right of the appellant to first approach the learned Rent Controller for setting aside the ex parte order which he obviously did. However, his application did not find favour with the learned Rent Controller, who dismissed the same by the impugned order. Thus, the impugned order became the final order in terms of section 21 of the Rent Ordinance.
27. ' In view of above the appeal was allowed by short order, dated 27-2-1984 for reasons to be recorded separately. Above are the reasons for the said order. As per short order the ease was remanded to the learned Rent Controller with the direction to hear the same afresh from the stage where ex parte order, dated 29-4-1979 was passed by him, by giving reasonable opportunity to both the parties for leading evidence if any. The parties were directed by the same order to appear before the learned Rent Controller on 24-4-1984.