' The respondent/landlady filed Ejectment Case No, 544 of 1978 on 28th January, 1978 for the ejectment of the appellant on the ground of default in the payment of rent. As service was not effected in the normal course on the application of the respondent/landlady, an order for substituted service through publication was passed and after publication had been effected, through the ex parte order, dated 31st May, 1979, the ejectment of the appellant was ordered.
Thereafter an execution application was filed by the respondent of which notice was served upon the appellant sometimes in December, 1979 and according to the appellant within 2 days of the service of the notice of the execution application, he filed an application, dated 12th December, 1979 for setting aside the ex parte ejectment order. The application is supported by the personal affidavit of the appellant in which apart from asserting that service had not been effected upon the appellant it was also submitted that his correct name was Malik Shafi Hyder and not "Muhammad Shafi", in which name the ejectment application had been filed and the notice in the newspapers had been published. By the following short order, dated 20th March, 1980 the application for setting aside the ex parte ejectment order was dismissed by the Rent Controller "Heard. In view of section 19(4) of S.R.P.O. 1979 I am of the considered opinion that this Court is not competent to set aside the ex parte order. Therefore, accordingly this application stands dismissed."
' Within 30 days of the passing of the order, dated 20th March, 1980, the appellant filed present appeal on 19th April, 1980 in this Court under section 21 of the 1979 Rent Ordinance. This matter was called earlier in the morning but neither the respondent nor her counsel, Mr. Muhammad Shafi was present. However, Mr. Muhammad Shafi, Advocate, had left a chit in which it was stated that he was busy before Mr. Justice Syed Ali Madad Shah in Suit No, 287 of 1980. This matter was again taken up after 9-30 a. m. The Havaldar of this Court was sent to call Mr. Muhammad Shafi but he came back with the information that Mr. Muhammad Shafi had taken a date in Suit No, 287 of 1980, which was fixed before Mr. Justice Syed Ali Madad Shah and then he had gone away. After waiting for further time the respondent and her Advocate against have been called absent. It is now about 10 a. m. I have heard Mr. Attaullah Khan, learned counsel for the appellant.
' It is contended by the learned counsel for the appellant that the ejectment application had been filed under the 1959 Rent Ordinance and there was no provision under the 1959 Rent Ordinance corresponding to the provision contained in section 19(2) of the 1979 Rent Ordinance and as such the law applicable for disposal of the application for setting aside the ex parte order was the 1959 Rent Ordinance. Even otherwise, it was submitted by the learned counsel for the appellant that the considered view of this Court is where an ex parte order of ejectment has been passed, an application can be made to the Rent Controller who is entitled under the provision of the Sind Rented Premises Ordinance, 1979 to go into the question whether the service was properly effected or not, and if he comes to the conclusion that proper service was not effected, he can set aside the ejectment order in spite of section 19 (2) of the 1979 Rent Ordinance. In support of this proposition, learned counsel relies upon 1982 CLC 664 decided by the learned Chief Justice of this Court and 1983 CLC 1135 decided by Mr. Justice Zafar Hussain Mirza. The two reported authorities support the contention of the learned counsel and I also subscribe to the view expressed in the two judgments cited above. In this case neither under the 1959 Rent Ordinance nor under the 1979 Rent Ordinance there was any bar upon the Rent Controller to decide the application moved on behalf of the appellant for setting aside the ex parte ejectment order on the ground that service had not been properly effected and the Rent Controller could have passed an order on merits and if he had accepted the plea raised on behalf of the appellant could have set aside the ex parte ejectment order.
2. As a result, the order, dated 20th March, 1980 for the Rent Controller is set aside and the matter is remanded to the Rent Controller for decision on merits the application, dated 12th December, 1979 filed by the appellant for setting aside the ex parte order of ejectment on the ground that the notice of the main ejectment case was not served upon the appellant in accordance with law. It is further ordered that till the disposal of the application, the appellant will not be ejected.
3. There will be no order as to costs.