1. ' The appellant is a tenant in respect of a Flat No,3 on Plot No, K-7 Kokan Society Alamgir Road, Karachi. The respondent filed an application for ejectment against the appellant on the ground of default in payment of rent from 1-11-1976 to 28-2-1977 which was granted ex parte on 16th November, 1977. In the ejectment order the learned Controller has observed that the notice was issued by registered post A/D which had returned duly served and as the appellant failed to appear and file written statement he proceeded ex parte against him-. The respondent filed execution application on 17-5-1978. The appellant's father came to know about the proceedings and on 25-1-1979 he filed two applications, one under Order 1, rule 10, C.P.C. for joining him as a party and the other under Order IX, rule 13, C.P.C. for setting aside the ex parte order. In the affidavit filed by him in support of the applications he stated that his son is the tenant of the premises in dispute and he has been living with him and other family members from the very inception of the tenancy. His son, the appellant, is away in Dubai for his business and visits Karachi once or twice a year where his family is residing. He further stated that he has been paying rent regularly to the respondent or his agent. He further alleged that taking advantage of the absence of the appellant ejectment application was filed although rent has been paid and is being deposited in Court. He has also stated that the appellant was never served and there has been no proper service on him.
2. The learned Controller by his order dated 8-11-1980 dismissed the application holding that according to the spirit of section 19 of the Sind Rented Premises Ordinance the Controller is debarred from setting side the ex parte order. He further observed that the application has been filed after a lapse of sufficient time. The appellant has challenged this order and prayed that application under Order IX, rule 13 may be allowed.
3. ' Mr. K.A. Qureshi the learned counsel for the appellant has contended that there was .no proper service of ejectment application on the appellant, and therefore, the order of ejectment passed by the learned Controller is null and void, and cannot be executed. The learned counsel referred to the proceedings before the learned Controller from which it is clear that the case was fixed for 16-4- 1977 and notice through the bailiff and by registered post was issued. The bailiff reported that on the given address at the potation of the respondent, he offered notice to a person who wPs alleged to be the brother of the appellant. On his refusal the notice was affixed and the respondent also signed on the notice for having witnessed the affixation. It may be mentioned that the address of the appellant given in the notice was completely wrong. It was mentioned as 17, Kokan Society instead of 7 Kokan Society. The registered letter was returned undelivered with the remark that the addressee does not reside on the given address. Even the Controller did not accept the service of the notice as proper and second notice was ordered to be issued for 30-5-1977 but cost was not paid and the notice was not issued. The hearing was postponed for 7-7-1977. The notice issued for 7-7-1977 was returned unnerved for Want of time as it was received by the bailiff on 6-7-1977. The hearing was adjourned to 1-8-1977 and notice was issued to the appellant. The bailiff reported that on potation of the respondent's representative he offered notice to appellant's son who accepted it on his behalf on 25-7-1977. He also stated that he does not recognize the son of the appellant who was identified by the respondent's representative. On 1-8-1977 in spite of this report of the bailiff the Controller ordered to issue notice for 13-9-1977. No notice for this date seems to have been issued and the hearing was postponed to 12-10-1977 for service on the appellant. Notice was issued for 12- 10-1977 by registered post A/D and through the bailiff. The bailiff reported that some one came out of the house of the appellant stating that he was sleeping and then no body appeared and after waiting for half an hour he came back. The bailiff obtained on the notice the signatures of the respondent's representative and two passersby. The notice was not affixed on the outer door nor delivered to any one and was returned. The notice sent by registered post A/D was received back bearing signature of some one affixed on it for the appellant. The learned Controller has relied on postal acknowledgment receipt. This clearly shows that for the purposes of taking ex parte proceedings the learned Controller has completely discarded the reports of the bailiff submitted by him from time to time.
4. Now coming to the postal acknowledgment receipt it is clear that it has not been signed by the appellant. Some one else has received it. In my opinion service on such person even if he is a member of the family which has not been established, cannot be treated as due service on the appellant. In the circumstances it is clear that the notice was not properly served.
5. ' Mr. Usman the learned counsel for the respondent has contended that the reports of the bailiff clearly show that the appellant was aware of the proceedings and there was service proper service. The learned Controller has not accepted the service effected by the bailiff as proper otherwise he would have passed ex parte order on the report of the bailiff and would have proceeded ex parte, much earlier. In the impugned order also there is a reference to service by registered post. ; Mr. Usman the learned counsel for the respondent contended that application under Order IX, rule 13, C.P.C. was filed by the appellant's father who had sought himself to be joined as a party. In the circumstances according to the learned counsel there is no proper application filed by the appellant for setting aside the order and the intervener had no locus stand to file it. As stated earlier according to the statement of the appellant's father from the very inception of the tenancy he has been residing in this house with the appellant's family members and the appellant is stationed abroad for business and he has been paying rent on behalf of the appellant. These facts have not be controverted in the counter-affidavit. The appellant's father was, therefore, acting as agent for looking after the interest of his son. When the writ of ejectment was issued the appellant was not present, his father who has been living there came forward to defend the case.
6. ' During the pendency of the application the appellant executed a power of attorney in favour of his father and ratified his previous acts. As I have held that no proper service was effected on the appellant, this technical defect should not be allowed to defeat the ends of justice.
7. ' The learned counsel for the respondent has contended that the appeal filed by the appellant is barred by time. I find no substance in this contention, because the impugned order was passed on 3-11-1980 whereas appeal was filed on 29-11-1980. In this regard the only question which requires consideration is whether the appeal is maintainable under, section 21 of the Sind Rented Premises Ordinance as by the impugned order the application for setting aside the ex parte order of ejectment was dismissed. In this regard I would refer to N.Q. Industries v. Bopai Kaikhusro PLD 1968 Kar. 589 where similar question arose for consideration and it was observed that 'the order refusing to set aside the earlier ex parte order of eviction should also approximate in nature to order of eviction and would like the latter order be appealable to the first appellate authority.' I respectfully follow the view taken by Noorul Arlin, J. in the above-cited case and hold that the appeal is maintainable and is within time. In the result the impugned order refusing to decide the application for setting aside the ex parte order is set aside and the application under Order IX, rule 13, C.P.C. is granted. The case is remanded to the learned Controller to decide the matter after giving the appellant an opportunity to file written statement and hearing the matter according to law.