1. ' This appeal is directed against the order of the Controller passed ex parte against the appellant on 27-7-1981 in respect of the premises bearing No, A-543, Block N. North Nazimabad, Karachi. The respondent filed ejectment application on 7-1-1981 which was fixed for hearing on 21-1-1981 and notice was ordered to be issued. There is nothing on record to show that notice was issued for 21-1-1981, there fore, on that day the case was adjourned for 31-1-1981 for the same purpose. Again it seems that no notice was issued because there is nothing on record to indicate the issuance of the notice. The matter was then adjourned to 16-2-1981. It seems that a notice was issued for that date but it remained unnerved as according to the Bailiff's report some one from the appellant's house came out and refused to accept it and, therefore, he pasted it on the door. On 16-2- 1981 the respondent filed an application for substituted service in which he stated that as the appellant has refused to accept the service of summons and the copy of the notice has been pasted at the outer door of the appellant the service may be effected by publication. This application was not supported by any affidavit. The learned Controller granted the application, the same day and further ordered the notice to be issued by registered post A/D. The matter was thereafter set for hearing on 15-3-1981. The office has noted that the notice by registered post A/D was issued on 3-3-1981 for 15-3-1981. The application was also made but as he newspaper had not been received the matter was adjourned to 25-3-1981. On 25-3-1981 as the publication made in the daily 'Huriyat', dated 12-3-1981 was received, the service was held to be proper and the matter was fixed for evidence on 28-3-1981. On 28-3-1983 as the appellant was not present, the Controller decided to proceed ex parte and fixed the matter on 13-4-1981. On that date the respondant filed affidavit of proof and the matter was put to 25-4-1981 for ordeRs, From 25-4-1981 to 18-7-1981 the matter was adjourned as either the Controller was on leave or was under transfer. However on 18-7-1981 the matter was adjourned to 27-7-1981 when the order of ejectment was passed.
2. ' After the order of ejectment was passed the respondent filed an execution application on 23-9-1981 and notice was ordered to be issued. There is a report of bailiff, dated 5-10-1981 in which it has been stated that the appellant had refused to accept the notice. The order sheet of 17-10-1981 reveals that the appellant appeared and filed application for adjournment and the matter was adjourned to 21-10-1981 for filing objections. On 21- 10-1981 and 25-10-1981 as the Controller was on leave the hearing was adjourned to 28-10-3981. On these dates the appellant was absent. On 28-10-1981 as appellant was absent writ of possession was issued returnable on 4-11-1981. The writ of possession was returned unexecuted. However after recording of statement of the bailiff police aid was granted. It is significant to note that none of the witnesses had stated that the appellant had resisted or was present at the time of service of writ of ejectment. The appellant was dispossessed on 3-12-1981. Thereupon the appellant filed an application on 6-12-1981 for obtaining certified copy of the order. On the next date he filed an application for recalling the order but to no avail. At this stage I may also mention that as stated earlier in the execution file at page 7 there is an application purported to have been signed by the appellant, dated 17-10-1981 in which he had sought extension of time for filing objections however at no stage it seems that the Controller had taken note of this application. In any case the appellant has denied his signature on this application as according to him it was filed by some fictitious person or by the respondent himself. From the statement of facts it is clear that at no stage any proper service was effected on the appellant. The notice issued to him was never served on him. The application for substituted service was made on completely insufficient and erroneous statement of fact because till that time notice had been issued for service only once and he had remained unnerved. In these circumstances the learned Controller could not have granted the application for substituted service, Such order can be passed only in cases where several attempts have been mode in the normal course and the part has avoided the service through the bailiff or by registered post AID. No such procedure was adopted by the Controller.
3. So far notice sent by registered post is concerned it seems to have been issued only once for 15-3-1981 but there is no acknowledgment receipt on red to establish that it was served. The respondent in his application for substituted service stated that the notice was affixed on the premises but on the record there is no order for pasting. Therefore the ex parte order passed against the appellant was without any proper service on the appellant and is, therefore, null and void. It seems that even after execution was filed the appellant was never confronted with any notice or writ of ejectment except .on the date when he was ejected forcibly. The application seeking extension of time seems to have been planted to create an evidence that the appellant had the knowledge of the proceeding and was avoiding to attend the Court. The signatures of the appellant purported to have been made on this application is completely different from the one he has made on several affidavits filed by him. In these circumstances I am convinced that the order passed by the learned Controller is illegal having been obtained by practicing fraud upon him. As the order of the learned Controller is void the question of limitation does not arise. I. therefore, set aside the order of the learned Controller and remand the case for trial by the Controller after notice to the parties. The appellant shall be given opportunity to file written statement after which the matter should be decided according to law. The learned counsel for the appellant requested that possession of the disputed premises may be restored to the appellant. He also stated that the premises has been let out by the respondent to some other person. In this situation it would be proper for the appellant to make an application for restoration of possession before the Controller who should decide it after notice to the respondent as well as to the person in possession of the disputed premises.