1. ' The respondent filed an ejectment application against the appellant in respect of the Bungalow No, B-202, Block "A" North Nazim abed, Karachi. The Controller by an ex parte order dated 31-7-1980 granted the application. When the execution application was filed notice was served on the appellant by registered post and he filed First Rent Appeal No, 77 of 1980. With the consent of the parties the case was remanded for filing by the appellant on application for setting aside the ex parte order and hearing by the Controller. On 31-7-1980 the appellant filed an application stating that at no stage notice of rent application filed by the respondent was served on him therefore the order of ejectment should be set aside. The learned Controller by the impugned order dated 14-2- 1983 dismissed the application.
2. ' Mr. Hazratji, the learned counsel for the appellant has contended that as no proper service was effected the entire proceedings are vitiated, the order of ejectment is a nullity in law, and further that it can not be executed. In this regard the learned counsel has taken me through the proceedings before the learned Controller. It seems that the matter was first fixed for 26-4-1980 and notice for this date of hearing was issued by registered post as well as through bailiff. The notice issued by registered post was returned with endorsement of the postman that it was refused, whereas the bailiff reported that when he went to serve the notice a boy came out from the house and told him that the appellant was not present at that time. The learned counsel have read the bailiff's report and confirmed it. The learned Controller has however incorrectly stated that the bailiff's report states that the boy who came out from the house stated that the respondent did not reside there. In any event this notice was also treated unserved and the Controller ordered to issue fresh notice for 14-5-1980 by pasting and publication. The admitted position is that no notice was pasted on the outer door of the appellant's residence or at the Court notice board. The publication was, however, made in the Morning News, dated 7-7-1980 for appearance on 8-7-1980.
3. After the publication was made the learned Controller fixed the case for filing ex parte proof and finally granted ejectment on 31-7-1980.
4. ' The entire proceedings show that the Controller has relied on service effected by publication. if the Controller would have relied on the endorsement by the postman then instead of passing an order for pasting and publication he would have immediately proceeded ex parte on 26-4-1980. The proceedings, therefore, clearly show the state of mind of the Controller that he had not accepted the service of notice sent through post. The question then arises whether in these circum stances any service through publication can ' be termed as due and proper service on the appellant. It is well- melded that the provisions of C.P.C. are not applicable, but its principles can be applied.
5. Service of notice by publication is a well-recognized mode of effecting service on a party provided earlier ordinary mode of service has remained ineffective or the appellant has avoided the service of notice issued in the normal manner. Before issuing notice for publication it is necessary to ascertain from the record that earlier notices were issued several times and the bailiff has made genuine efforts to effect the service on the party and that the party is avoiding service. No such step was taken by the Controller. In this regard reference is made to Abdul Salem v. Tahera Zaidi 1984 CLC 2855. It seems that hasty proceedings were taken without having any regard to the provision of law or the demand of justice. In the circumstances I am convinced that the service effected on the appellant was not proper and legal and the Controlled had no jurisdiction to proceed with the matter and decide ex parte.
6. ' Mr. Matin the learned counsel for the respondent has very frankly stated that if the service is held to be illegal the entire pro ceedings would be vitiated and the matter should be remanded to the Controller who should give his decision on merits. The learned counsel has, however, stated that as the matter is sufficiently old, the Controller may be directed to hear the case urgently. In my opinion the request is reasonable. I set aside the impugned order and granted the application for setting aside the ejectment order passed on 31-7-1980. The case is remanded to the learned Controller with the direction that he should hear the ejectment application on merits. The parties are directed to appear before the Controller on 13th of October, 1984 when the appellant should file his written statement. No notice of this date of hearing shall be issued by the Controller. The learned Controller is further directed to dispose of the case within six months from 13-10-1984.