1. This First Rent Appeal arises out of the order dated 24th July,1983 passed by the XIVth Rent Controller, Karachi, dismissing the application filed by the appellants.
' The brief facts which rise to this appeal are as follows:-
2. Khattab Khan son of Siddique Khan and Shehzor Khan son of Yar Khan were in possession of a plot of land bearing No,235/77, Angora Village, Liaquatabad, Karachi, on which they had raised some construction, and had applied for regularisation. The appellant No,4 through his father by an agreement dated 6th December,1977 purchased the superstructure and right of regularisation from the said two occupants through their attorney Mr.Malik Assessor Khan son of Muhammad Khan on payment of Rs,25,000 vide receipt dated 6th December,1977 and possession of the said property was handed over to him pursuant to the sale agreement and a general power of attorney was executed in favour of his brother Mohammad Shafi the appellant No,1. After taking over possession pursuant to the agreement dated 6th 1 December, 1977 the appellant No,4 materially developed the property and got the same regularised and such entries were recorded in the office of K.M.C. And Excise and Taxation Department. In June 1982, the appellant No,4 gifted the said property in favour of his father Muhammad Taqi and after completing requisite formalities the said property was registered in the name of Muhammad Taqi. The K.E S.C. Meter was installed in this name. Taqi Muhammad and his sons the present appellants were carrying on motors and other allied mechanical work in the said shop. Muhammad Taqi died on 18th August, 1982. The appellants were dispossessed on 19th December,1982 by police aid in pursuance to the orders of the Court in respect of Shop No, 67 in Exh. Application No,31 of 1982. After making enquiries the appellants applied for certified copies of the proceedings and filed the application under Order XXI, rules 100 and 101, C.P.C. Stating therein the above facts and prayed for setting aside the orders and for restoration of possession.
3. On 6th December,1980, the respondent No,1 filed application under section 15 of the Sind Rented Premises Ordinance, 1979 on the ground of default since Apri1,1970, against the respondent No,2. It was averred in the application that on 1st April,1969 the respondent No,1 rented out Shop No,67, Main Road, Angora Goth, Liaquatabad, Karachi, to the respondent No,2 at a monthly rental of Rs,60.
4. The learned Rent Controller and Civil. Judge, Court No,IX after admitting the case issued notice for 15th April,1981. The Bailiff went for service of notice and returned the same unexecuted with his report that he could not locate the shop. The registered letter was also returned unserved with the endorsement "IS NAM KA ADMI NAHEEN HAI" by the postal authorities.
5. The case was adjourned from time to time for service of notices but the bailiff and the postman returned the notices as well as registered letters unserved on the respondent No,2 on the same ground that the Bailiff could not locate the shop and the postman endorsed on the envelopes that no one of the name of respondent No,2 was available. The respondent No,1 filed application 1, dated 22nd November,1981 under Order V, rule 20, C.P.C. For substituted service. The learned Rent Controller by his order dated 22nd November,1981 allowed the application and ordered that the respondent No,2 be served by publication in local newspaper, by pasting at the some conspicuous place of disputed premises and also in some conspicuous place in the Court building. The notice was published in daily "The Leader" dated 24th December,1981 but no steps were taken for pasting the notice as ordered by the Court. The learned Rent Controller by his order dated 7th January,1982 held the service as good. The respondent No,1 filed affidavit in evidence in ex arte proof. The learned Rent Controller by his order dated 4th October 1982 allowed the ejectment application and directed the respondent No,2 to vacate and hand over the disputed premises to the respondent No,1. Respondent No,1 filed Execution Application being No,31 of 1982 on 23rd November,1982, in the Court of XIVth Senior Civil Judge and Rent Controller, Karachi. It was admitted on 24th November,1982 and the learned Rent Controller, Karachi, issued Writ of Possession. The Bailiff went to the disputed premises on 1st December, 1982 and pasted the copy of Writ of Possession on the ground that the shop was found locked. The Bailiff again went to the disputed premises on 4th December,1982 and found the sign board of "Ludhiana Engineering Works". The report of the Bailiff showed "JANE ALAM IS NOT THERE". The respondent No,1 moved an application for police aid which application was granted by order dated 9th December,1982. The appellants were dispossessed on 19th December,1982, in pursuance of the orders of the learned XIVth Civil Judge.
6. The appellants filed F.R.A. No,33 of 1983 in this Court on 9th January,1983 which was withdrawn on 1st March,1983 on the ground that the appellants had already filed application before the Rent Controller.
7. The learned Civil Judge after hearing the learned counsel for the parties dismissed the application under Order XIX, rules 100 and 101 C.P.C. By his order dated 24th July,1983. The appellants being aggrieved with the order dated 24th July,1983, have preferred this appeal on the grounds mentioned in the memo of appeal.
8. Mr. G. M. Qureshi, the learned counsel for the appellants has contended that the appellants are the owners of superstructure on the plot of land being No,235/77, Angora Village, Liaquatabad, Karachi, and they were dispossessed from the premises by the respondent No,1 in pursuance of order passed by the Court of Senior Civil Judge and Rent Controller, Karachi, and the substituted service obtained by the respondent No,1 did not conform with the provisions of Order V, rule 20 and was, therefore, not good and sufficient service. The learned counsel has further urged that the appellants are the owners of premises and not tenants in respect of Shop No,67, Angora village.
They have been wrongly dispossessed from the premises. The learned counsel had further contended that the application was dismissed summarily without framing the issue and without recording the evidence of the parties as provided by Order XXI, rule 103 C.P.C.
9. On the other hand, Mr.Abdul Majeed Khan, the learned Advocate for the respondent No,1 contended that the respondent No,1 filed the ejectment proceedings in respect of Shop No,67, Angora village, Liaquatabad, Karachi, and obtained the possession of the disputed premises in pursuance of order dated 4th October,1982.
10. 1 have perused the record and proceedings of the Rent Case No,7015 of 1980. It appears from the reports of the Bailiff that the disputed premises could not be located and the postman of the area also returned the registered letters with the same endorsement. The application for substituted service was filed on the ground that the respondent No,? Was avoiding service on one pretext or the other and the learned Rent Controller granted the same by his order dated 22nd November,1981. Having regard to the fact that the disputed premises could not be located or found at the premises. I am of the view that the application under Order V, rule 20, C.P.C. For substituted service was not warranted by the facts in the instant case. The fact that the respondent No,2 could not be served with notice through Bailiff or by registered post on the date as aforesaid did not necessarily indicate that he was avoiding service or refusing to receive the notice or the registered letter. For the validity of the substituted service, it is necessary that the respondent No,2 may have either refused or avoided or kept out of the way to accept service of the A notice issued to him.
There is however, nothing on the record to show that any effort was made to serve him personally.
Service by publication in newspapers, thus, cannot be upheld. The impugned order dated 4th October, 1982 was obtained by misrepresentation and by fraud. In my view, before granting the substituted service by publication, and affixing copy of notice in some conspicuous place in the Court building and also upon some conspicuous place of the building it is incumbent upon the learned Rent Controller to apply his mind to the facts of the case and to come to the conclusion that in spite of the best efforts on the part of the applicant, the respondent No,1 the opponent i,e, the respondent No,2 could not be served for the reason that he has been avoiding the service with the object of obstructing the disposal of the rent case. It seems that the learned Rent Controller while granting the application for substituted service had not adverted to this inasmuch as the Bailiff in his reports dated 13th April,1981, 17th May,1981 and 24th October,1981 stated that he could not locate the disputed premises. The postman of the locality has also endorsed to the same effect. On 22nd November,1981, application for substituted service was presented. The learned counsel for the respondent No,1 is not right in my opinion, in his submission that if the requirements of the provisions of law were not properly complied with by the trial Court when it made the order for substituted. The appellate Court has no power to consider whether the order for substituted service was made on sufficient grounds nor not. I am of the view that the order for substituted service was not obtained on sufficient grounds as such it is liable to be set aside. In my opinion, the learned Rent Controller has clearly erred. A perusal of the provisions of Order V, rule 20, C.P.C. Would show that substituted service can be ordered only where the Court is satisfied that there is reason to believe that the opponent is keeping out of the way or for any other reason the summons or notice cannot be served in the ordinary way. In the present case neither any opinion was formed by the Rent Controller when he ordered the composite service including the substituted service nor there was any reason for him to form such opinion. On 22nd November,1981, it was ordered that the service of notice be effected by publication in newspaper, by affixation upon the conspicuous place of the disputed premises and also by affixation on the Court notice board. The matter came up for hearing on 7th January,1982. I have perused the diary for 7th January, 1982. There was nothing on the record of the learned Rent Controller to indicate that the notices for the material date for which service has been held good by publication were affixed at the Court notice board as well as upon the conspicuous place of the house. I have perused the record with the assistance of both the learned counsel but even did not find any copy of the notice with the Bailiff's endorsement thereon.
' In the absence thereof I am of the opinion, that the respondent No,1 did not comply with the order dated 22nd November,1982. This aspect of the case was also overlooked by the learned Rent Controller. It seems that on 5th October,1982 the learned Rent Controller on the basis of affidavit in ex parte proof passed the ejectment order and directed the respondent No,2 to vacate and hand over possession of the disputed premises within one month of the said order.
11. It seems that after obtaining the above ejectment order the respondent No,1 filed Execution Application No,31 of 1982 on 23rd November; 1982. It further seems that Writ of Possession was issued for 9th December, 1982. I have perused the Writ of Possession and it appears that the Bailiff has not submitted his report on affidavit as required. Under rule 108 of the Sind Civil Court Rules but has merely made an endorsement on the Writ of Possession. It seems that the Bailiff allegedly served the Writ of Possession by affixing the same on the outer-door of the 'premises of appellants on 1st December,1982. The report does not bear the signature of the witness in whose presence the Writ of Possession was allegedly affixed on the outer-door of the appellant's shop. It is pertinent to note that on the back of the Writ the Bailiff had written "Ludhiana Engineering Works, Proprietor Mohammad Amir Khan and Brothers", i,e, appellant No,4 and his brothers. Reference here may be made to rule 108 which requires that the Bailiff after completing of his duties connected with any process shall record with his own hand upon the original process at the place of execution and in the presence of witnesses. The rule was clearly violated by the Bailiff. Again on 9th December,1982 the Bailiff went to execute the writ at the place and found the shop duly locked and also found sign board of "Ludhiana Engineering Works" and name of sole proprietor "Mohammad Ameer & Brothers". It appears from the report that some people informed him that generally shop remains closed as such he pasted the copy of the Writ on the outer-door of the shop. The Bailiff did not even disclose the names and addresses of the persons who informed him about generally remained closed. He did not even obtain the signatures of the persons and even the copy of the Writ was pasted in the absence of the witnesses. It is also worth noting here that the Bailiff was not examined in the Court of the Rent Controller though in the affidavit filed in support of the application under Order XXI, rules 100 and 101, C.P.C. It was expressly stated that no service was effected upon the appellants and the grievance of the appellants was that they were not made parties in the proceedings and that the order of ejectment dated 4th October,1982 and order for issuance of Writ of Possession dated 24th November,1982 were obtained by the respondent No,1 through misrepresentation and fraud.
12. In the instant case the appellants deny the fact and it is in my opinion desirable that at any rate the Bailiff who purported to have served the notice should be put into witness-box and that the appellants who deny the service should have been given an opportunity of cross-examination. I am of the opinion that the learned Rent Controller would have been well-advised to have set aside the ex parte order dated 4th October,1982 and directed the respondent No,1 to restore the possession of the disputed shop to the appellants and given the appellants an opportunity of stating the case.
13. The learned counsel for the respondent No,1 has contended that the appellants are not the owners of the premises. The service of notice was duly effected and the ejectment order was in accord with law.
14. The above contention is devoid of any force. From the orders of the Rent Controller, it seems that he has not applied his mind to the facts of the instant case and has not taken into consideration the relevant provisions of the Order V, rule 20, C.P.C. And the Sind Civil Court Rules 105, 106, 107 and 108 of the Sind Civil Court Rules and the granting of application under Order V, rule 20, C.P.C. For substituted service was not warranted by facts of the instant case and the order dated 22nd November,1982 was not complied with by the respondent No,1. It seems that the copy of the Writ of Possession was not affixed at the conspicuous place of the shop where the appellants have been carrying on business in the name and style of "Ludhiana Engineering Works". This circumstance again would indicate that they were unaware of the proceedings filed by the respondent No,1. It cannot, therefore, be said that Court had no material before it from which it could conclude that the appellants had remained absent on 9th December,1982 and 2nd December,1982 because they were unaware of the dates and absence, therefore, could be said to be good and sufficient reason.
I can, therefore, interfere with the said conclusion of the learned Judge.
15. It is urged that the appellants were holding the property in their own rights and, therefore, they were not bound by the decree as they were not tenants of the respondent and as such proceedings which resulted in the ejectment order and they were holding the property in their own rights and not as persons claiming through the respondent No,2, who was the judgment-debtor in the execution.
16. The learned counsel for the respondent No,1 has contended that the appellants are not the owners of the premises. The service of notice was duly effected and the ejectment order was in accord with law.
17. To appreciate the question raised in this appeal, it is first necessary to refer to the relevant provisions of the Code as it stood before its amendment by the amending Ordinance, 1980. The material provisions are rules 100 to 103 of Order XXI, which read as follows:- Rule 100. (1) "Where any person other than the judgment debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.
(2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same."
Rule 101. --"Where the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall direct that the applicant be put into possession of the property."
Rule 102. --"Nothing in rules 99 and 101 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person."
Rule 103. --"Any party not being a judgment-debtor against whom an order is made under rule 98, 99 or 101 may institute a suit to establish the right which he claims to the present possession of the property but subject to the result of such suit (if any), the Order shall be conclusive." The relevant new rule after the amendment of the Code is rule 103 and it is as under:- ' All questions arising as to title, right or interest in, or possession of, immovable property between an applicant under rule 97 and the opposite-party, or between an applicant under rule 100 and the opposite party shall be adjudicated. Upon and determined by the Court, and no separate suit shall lie for the determination of any such matter."
' A perusal of the old and the new rules would go to show that under the old rules there was no specific power conferred on the executing Court to finally decide the questions of right, title or interest in the property in dispute as to who conferred by the new rule 103. All that the Court was directed to determine under the rule 101 was whether the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor and in case it was found that he was in bona fide possession on his own account, the Court was required to direct that he be put in possession. Against an order made under rule 101 whether the claim was allowed or dismissed by the Executing Court no party had any right of appeal. The party aggrieved, however, had a right to file a suit conferred on him by the old rule 103 and subject to the result of the suit the order passed under the rule 101 was conclusive. The scheme of the new rule 103 is that the Executing Court itself has full jurisdiction to decide all questions of right, title or interest in the property and the order passed by the executing Court has the force and effect and is subject to the same condition as to appeal as if it were a decree and a suit is not maintainable to challenge the order.
18. I have perused the copy of the application under Order XXI, rules 100 and 101, C.P.C. Filed by the appellants. As stated above, the plea taken by the appellants in the application is that they are in possession of the premises which was purchased by the appellant No,4 and the plot was regularised.
19. It appears that the application had been moved under rules 100 and 101 of Order XXI, of the said Code of Civil Procedure. According to rule 103 of Order XIX,C.P.C. All questions arising as to the title, right or interest in, or possession of immovable property between the appellants and the respondent No,1 are to be adjudicated upon and determined by the executing Court. Mr.C.M.Kureshi has urged that the executing Court should not have dismissed the application summarily but should have treated the same as a suit and should have proceeded to frame the issues and given the appellants an opportunity to produce evidence in regard to the factum of their possession.
20. I have perused the order of the learned lower Court and I find that Issues were not framed. The parties were not allowed to lead evidence in respect of their respective contentions.
21. The learned counsel for the respondent No,1 has also conceded that no evidence was recorded in this case.
22. In my opinion the learned Rent Controller has clearly erred. A perusal of the provisions of rules 103 of Order XIX, C.P.C. Would show that all questions arising as to title, right or interest in, or possession -of immovable property under rule 100 are to be adjudicated upon by proceeding under rule 103 are no more summary proceedings but are as if were trial in the suit and the provisions of the Code relating to the trial of the suit shall apply to the proceedings under these rules 100, 101 and 103, shall be framed in the proceedings. Parties shall be given opportunity to lead both documentary and oral evidence. It seems thati this has not been done in this case.
23. In the circumstances, this appeal is allowed by a short order dated 4th October,1982 and the impugned order dated 24th July,1983 of the Rent Controller and Civil Judge, Karachi, in Execution Application No,31 E. Of 1982, is set aside and the case is remanded to the Rent Controller for deciding the case in accordance with law and direct him to frame the Issues and allow the parties to lead the documentary evidence and oral evidence and he shall decide the case on merits in accordance with law within three months from the receipt of the R & Ps.