' This appeal arise out of the order dated 31-5-1983 passed by the Vlth Senior Civil Judge, Karachi in Execution Application No,25 of 1982, whereby he allowed the Execution Application No,25 of 1982.
2. The brief facts which give rise to this appeal are that the respondents are the landlords and the appellant is their tenant in respect of Shop No, 2 on Plot No, B.S, 12/14, Fed3ral 'B' Area, Karachi. The respondents filed ejectment application (Rent Case No,2717 of 1982) on the ground of default in payment of rent since August, 1979. The Ejectment Application No,2717 of 1982 was presented on 1- 7-1982 and the Rent Controller issued notice for 16-7-1982. The Bailiff went for service and he came to know from one Ahmed that perhaps the appellant was dead. The respondents filed an application under Order V, rule 20, C.P.C. The Rent Controller by his order dated 19-8-1982 granted the application and ordered that the appellant was to be served by publication as well as by pasting. The notice was published in daily "Leader" dated 25-8-1982. The Bailiff pasted the notice in the outer door of the disputed premises. The appellant did not appear on 18-9-1982 as such ex parte order was passed. The learned Rent Controller by his order, dated 16-11-1982 allowed the ejectment application and directed the appellant to hand over the vacant possession of the premises within one month from the date of the order. The appellant failed to hand over vacant possession of the disputed shop as such the Execution Application No,25 of 1982 was presented.
Notice was issued and possession was taken over by the respondents by obtaining permission of the Court for breaking open the lock and it seems that the Writ of Ejectment was executed in the absence of the respondent. The appellant came to know about the proceedings. He filed an application for setting aside ex parte decree and restoration of the possession. The respondent filed counter-affidavit. The learned Rent Controller after recording evidence of the parties and hearing the arguments of the learned counsel for the parties by his order dated 31-5-1981, dismissed the application filed by the appellant.
3. The appellant being aggrieved against the order, dated 31-5-1983 has preferred this appeal on the grounds mentioned in the Memo. of Appeal.
4. Mr.Shaikh Abdul Aziz, the learned counsel for the appellant has contended that the appellant was not duly served with the notice of the ejectment proceedings as such the ex parte order, dated 16- 11-1982 and the Writ of Possession are illegal and without jurisdiction.
5. On the other hand, Mr.G.M.Khan Leghari, learned counsel for the respondents has contended that the appellant was duly served with notice of the ejectment proceedings, and the order passed by the learned Rent Controller is in accord with law.
6. I have perused the record and proceedings of the Rent Case No,2717 of 1982 and also heard the arguments of the learned counsel for the parties. On perusal of the record I find that only one attempt was made for service of notice on the appellant. The report of Bailiff ..hows that he came to know through one Ahmad that the appellant dead. No more attempt was made for service of notice. An application under Order V, rule 20, C.P.C. was moved which was granted by the learned Rent Controller by his order dated 19-8-1982 and ordered that the appellant was to be served by publication as well as by pasting.
7. It seems that the order of the substituted service obtained by the respondents did not conform with the provisions of Order V, rule 20, C.P.C. and was therefore, not good and sufficient service.
8. In my view 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/appellant is keeping out of the way for the purpose of avoiding service or for any other reasons the summons or notice cannot be served in the ordinary way. In the present case neither any opinion was formed by the learned Rent Controller when he ordered the composite service including the substituted service nor there was any reason for him to form such an opinion. 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 notice was published in daily "Leader" on 18-9-1982. The Bailiff also pasted the notice at the outer door of the disputed premises. He affixed the notice on 11-1-1983. The Bailiff's report does not show that the notice was pasted on the outer door of the disputed shop in the presence of the two witnesses as required by rule 105, Sind Civil Courts Rules. It seems that notice was not served by registered post A.D. I would like to add here that the notice allegedly served upon the appellant/tenant in the manner alleged should have raised a reasonable suspicion in my mind as to the legality and the proprietary of the alleged service. It would be seen that in the case filed before the Rent Controller the first date of hearing was 18-7-1982 for which date notice was issued and the Bailiff alleged to have gone to the disputed shop and came to know through one Ahmed that the appellant was dead. No address or profession of the said Ahmed has been given. Though this case was fixed for hearing on 18-7-1982 the Bailiff returned the notice unsaved. The learned Rent Controller by his order, dated 19-8-1982 directed that notice be served by pasting as well as by publication in the newspaper. The Bailiff allegedly served the notice by affixing the same on the outer door of the disputed shop on 11-1-1982. The report does not bear signatures of the witnesses in whose presence the notice was allegedly affixed on the outer door of the applicant's shop. Reference here may be made to rule 108 of the Sind Civil Court Rules which requires that the process-server shall immediately after completions of his duty connected with any process, record with his own hand upon the original process at the place of execution and in the presence of witnesses his report specifying the manner of execution or the causes which, prevented execution. This rule was clearly violated by the process-server/Bailiff. The other Bailiff was examined and deposed that he went to the shop but the appellant refused to accept the notice as his name was S.M.Rashid instead of Abdul Rashid and he was not the same person.
9. The learned counsel for the respondent has contended that in this case there has been a ''due service of notice in the ejectment application on the appellant and, therefore, he is not entitled to seek order for the setting aside the ex parte decree. According to the learned counsel even if there had been no personal service on the opponent and if the Court considers the service to be sufficient service then should be taken to be a due service as contemplated under Order IX, rule 13, C. P. C. in which the appellant cannot invoke the said service for setting aside the ex parte decree. It seems that the appellant had no knowledge about the ejectment proceedings and /or execution proceedings which were filed against him and the Bailiff has not complied with the mandatory provisions of the Sind Civil Court .Rules. In the crimson the order, dated 16-11-1982 is set aside and consequently, the Writ of Possession is also of no effect, setting aside the same.
For the reasons already assigned, I allow the appeal and set aside reverse the orders, dated 16-11- 1982 and 31-5-1983, of the VIth Senior Civil Judge, Karachi and direct him to allow the appellant/tenant to appear, defend the case, adjudicate upon and decide the ejectment application after giving reasonable opportunity of being heard to the parties, he shall decide the case in accordance with law. I also direct the respondents to restore the possession of the disputed shop on or before 31-3-1984. The matter has been hanging fire for an unduly long time. The learned VIth Senior Civil Judge and Rent Controller will, therefore, make every possible endeavor to dispose of the proceeding within three months from the receipt of R & Ps.