1. ' This appeal arises out of the order/judgment dated 27-3-1983 passed in Execution Application No.109 of 1982 of the learned II-Senior Civil Judge and Rent Controller, Karachi thereby dismissing the application of the appellant under Order IX, rule 13 read with section 151, C.P.C.
2. The brief facts of the case are that the respondent is the owner of building situated on Plot No.190- 1-C, Block No.2, P.E.C.H. Society, opposite Khayam Cinema, Karachi and the appellant is a tenant. in respect of a shop at a montly rent of Rs.300. The respondent filed ejectment application bearing No.3466 of 1981 against the appellant on the ground of default and subletting. The said rent case of the appellant was decided ex parte against the appellant. On 6-5-1982 the appellant came to know about the ejectment proceedings when the Bailiff of the trial Court came to the shop in dispute and asked the appellant to vacate the shop ip dispute within 24 hours and in these circumstances the appellant engaged an Advocate and filed an application under Order IX, rule 13 read with section 151, C. P. C.
3. ' The attorney of the respondent filed a counter-affidavit and averred therein that the application is time-barred and the service of process of the Court in Rent Case No.3466/81 was held good through publication and affixation. The respondent examined himself as Exh.l. Muhammad Saleem bailiff of civil Court was examined as Exh.8 and another bailiff of civil Court Muddasar Hussain was examined as Exh.13: The appellant examined his attorney Haji Muhammad Haroon as Exh.0 and brought the Power-of-Attorney and other documents as Exhs. 0/1 to 0/3 as part of his evidence.
4. ' The learned trial Court after recording the evidence of the parties and considering arguments of the learned counsel for the parties dismissed the application by his order dated 27-3-1983.
5. ' The appellant being aggrieved against the aforesaid order has preferred the appeal on the grounds mentioned in the memo. of appeal.
6. ' Mr.Mirza Saeed Baig learned Advocate for the appellant has contended that the respondent has obtained ejectment order by committing fraud on the trial Court and the service was not effected as provided under Order V, rule 20, C.P.C. The learned trial Court has jurisdiction to set aside the ex parte order under the provisions of section 19(2) of the Sind Rented Premises Ordinance, 1979. The learned counsel for the appellant has relied on the following decisions in support of his arguments on PLD 1979 S G 18, PLD 1979 Lah. 332, PLD 1968 Lah. 792 and AIR 1918 P C 102.
7. ' On the other hand Mr.Akhtar Mehmood the learned counsel for the respondent has contended that the service has been held good on the appellant. The order of the learned II-Senior Civil Judge and Rent Controller, Karachi is legal and valid is in conformity with the provisions of Sind Rented Premises Ordinance, 1979.
8. ' I have perused the record and proceedings of the Rent Case No. 3466 of 1981. It appears from the reports of the Bailiff that on 27-10-1981 he went to the given address but could not find the appellant and on enquiry from one person he stated there is no such named person. He fixed the copy of notice on the outer door of the disputed premises.
9. ' The other Bailiff also went to the disputed premises but could not find the appellant at the shop and he affixed the copy of the notice on the outer door of the shop and Postman of the area also returned the registered letters with endorsement. The application for substituted service was filed on the ground that two modes of service have proved inaffective as can be seen from the Bailiff report as well as remarks of the Postal authorities' on the registered acknowledgment due sent to the opponent/appellant. 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. In my view before granting substituted service by publication and affixing the copy of notice in some conspicuous place in the Court building and also conspicuous place of the premises it is incumbent upon the learned Rent Controller to apply his mind to the facts of the case and come to the conclusion that in spite of best efforts on the part of the applicant/respondent, the appellant 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 bailiffs in this reports dated 1-9-1981, 22-9-1981 and 6-10-1981 or by registered post on the dates aforesaid stated that no person by the name of the appellant was available and the place is empty did not necessarily indicate that he was avoiding the service or refusing to receive the notice or the registered letter. For the validity of the substituted service, it is necessary that the appellant may have either refuse or avoid or keep out of the way to accept the service of the notice issued to him. There is however, nothing on the record to show that any effort was made to serve him personally. The service by publication in newspaper thus cannot be upheld. 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. which shows 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 any other reason the summon or notice cannot be served in the ordinary way. In the present case neither any opinion was found by the Rent Controller when he ordered the composite service including substituted service nor there was any reason for him to form such opinion. On 24-9-1981 it was ordered that the service of notice be affected by publication in newspaper, registered notice and through registered acknowledgment due and affixation. The matter came up for hearing on 15-10-1981 the case was adjourned to 18-10-1981 as the registered acknowledgment due was not received. On 20-10-1981 the appellant was called absent and case was put off to 2-5-1981 for written statement if any by the appellant. There was nothing on the record of the Rent Controller to indicate that the notice for the material date for which service has been held good by publication was affixed at the Court notice board as well as upon conspicious place of the house. This aspect of the case was also overlooked by the learned Rent Controller. It seems that on 19-11-1981 the learned Controller on the basis of affidavit in ex parte proof passed ejectment order and directed the appellant to vacate and handover possession of the disputed premises within two months of the said order.
10. ' It seems that after obtaining the above ejectment order the respondent filed Execution Application No.10 of 1982 on 31-1-1982. It further seems that writ of possession was issued on 9-5- 1982 for 25-5-1982. The bailiff went to the disputed premises on 6-5-1982 and pasted the copy of writ of possession on the ground that no one was present there. There was no occupant who did tell the bailiff his name, the bailiff showed him the warrant and told him to vacate the premises but he refused to do so. The bailiff affixed 24 hours notice on the premises. The report does not bear the signature of the witnesses in whose presence the writ of possession was allegedly affixed on the disputed premises. Reference here may be made to rule 108 of Sind Civil Court Rules which requires that the bailiff after completing of his duties connected at any process record with his own hand upon the original process at the place of execution in the presence of witness. The rule was clearly violated the bailiff.
11. '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 rules 105, 106, 107 and 108 of Sind Civil Court Rules.I am of the view that the granting of application under Order V, rule 20, C.P.C. was not warranted by facts of the instant case.This circumstanc again would indicate that the appellant was unaware of the proceedings filed by the respondent. It cannot, therefore be said that the Court had no material before it from which it could conclude that the appellant had remained absent on 15-10-1981, 18-10-1981, 5-11-1981 and 5-11-1981 because he was unaware of the dates and absence, therefore, could be said to be good sufficient reason. I can therefore interfere with the said conclusion of the learned Judge.
12. ' Mr. Akhtar Muhammad the learned counsel for the respondent has contended that the Controller has no power to rescind ex parte order as the appellant has failed to file his reply without any reasonable excuse. On the other hand Mr. Saeed Beg the learned counsel for the appellant has contended that the bar contained in section 19(2) of the Ordinance is confined to the opponent, who was duly served with the notice and after due notice he failed to file his reply. It appeirs that the bar contemplated under section 19 will operate only when the opponent has been served and does not file written reply within the stipulated time. In such case the Rent Controller can pass ex part order against that opponent and after having passed such ex part order, he is divested of the power to rescind the same. This has been so provided in order to give a touch of finality to the ex parte orde and as such opponent against whom ex parte order has been passed can file appeal before the appellate Court. The appellate Court unde 'section 21(3) has the power to hear the parties and made such further enquiry either by himself or by the Controller and make an appropriat order which shall be final. In the instant case I already held that th appellant against whom ex parte order was ,passed was not actually served in the main rent case.
13. ' The question has been considered by my learned brother Abdul Hayee Kureshi acting Chief Justice in the case of Mashlalehuddin v. Syed Ali Haider 1982 CLC 644 in which my learned brother has come to the conclusion after cogent reasons which are fully supported by various authorities discussed by him in the said judgment that:- "The use of the word "found" and the words without any reason able excuse" clearly mean and imply that the Rent Controller has to record a finding that a notice has been served and further that the default in making reply was without any reason able excuse.Unless findings on these two facts are recorded the Controller cannot give full effect to subsection (2) of section 19 of Sind Rented Premises Ordinance. In any case the principles of natural justice which are deeply embedded in the substratum of legislation in spite of not being vividly expressed, would also supported the proposition that before a person loses his right to defend a cause, it is to be shown that he has notice about the pendency of a cause in a competent Tribunal".
14. "This subsection states that if should be found that the notice has been served and further that the default in filing of reply is without reasonable excuse. The use of the word "found" and the word "without any reasonable excuse" clearly mean and imply that the Rent Controller has to record a finding that a notice has been served and further that the default in making reply was without any reasonable excuse. Unless findings on these two facts are recorded, the Controller cannot give full effect to subsection (2) of section 19 of the Sind Rented Premises Ordinance. My attention has also been drawn to the Division Bench judgment in the case of Agha Brothers v.Tharparkar District T.B.Assosciation (1). I was a member of that Bench which delivered the judgment in that case. In addition this view would appear to be supported by the judgment of the Supreme Court in the case of Chief Settlement Commissioner, Lahore v.Raja Muhammad. Fazal Khan (2). In any case the principles of natural justice which are deeply embedded in the substratum of legislation in spite of not being vividly expressed, would also support the proposition that before a person loses his right to defend a cause, it is to be shown than he has notice about the pendency of a cause in a competent Tribunal".
15. 'I am in respectful agreement with this decision of my learnedlH brother for the reasons given by him in above judgment. #TBS I J. #TBE ' In the above circumstances I am of the view that the impugned order passed by the learned Controller on 27-3-1983 in the Rent Case No.3466 of 1981 (Execution No.10 of 1982) is hereby set aside.
16. ' While winding his argument Mr.Saeed Beg for the appellant submitted that the learned Rent Controller directed to record the evidence of the parties and after hearing the arguments and to record his finding by formulating the points for determination. I am afraid this contention has no force, because as held by the Honourable Supreme Court in case of Parmathi Nath Choudhry and 17 others. v. Kamir Mondelek PLD 1964 SC 434, Fateh All v.Pir Muhammad and others 1975 SC MR 221, Nasir Ahmed and others v. Khuda Bukhsh and others 1976 SCMR 338 the High Court has the power to decide the matter in hand on merits itself, instead of sending it on first decision to the Court below. As a matter of fact, in some cases it would be appropriate for the appellate Court to decide itself as observed by the Honourable Supreme Court in Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624.
17. ' The appellant filed written statement in pursuance of my order dated 5-2--1984. The appellant stated that the attorney of the respondent Khawaja Anamullah was collecting rent from him. In or about October/ November, 1978 the said attorney also left Karachi in connection with his employment or business. It is advantageous to reproduce the following extract from para. 2 of the written statement which reads as under:- "The premises in question being supervised, looked after and managed in the absence of the applicant, by his Attorney Khawaja Inamullah, who was receiving rent from the opponent. In or about October/November, 1978, the said Attorney also left Karachi in connection with his employment or business. Accordingly, rent was being paid to the said Khawaja Inamullah, Attorney as and when he came to Karachi to collect the same. It may be stated that the printed receipts issued to the opponent, did not bear the name and address of the applicant or his authorised Agent, so as to enable the Opponent to sent rent by Money Order. Moreover, the said Attorney, Khawaja Inamullah had himself told the Opponent to pay rent to anyone, except himself, as and when he would come to collect the same. Being out of Karachi, he was unable to collect rent monthly, nor he had authorised anyone else to receive the rent on his behalf, nor was the Opponent informed of the change of the Attorney. In the circumstances, he was collecting rent at irregular intervals of time, to suit his convenience. A practice, therefore, developed that rent was being collected for ad hoc period with the consent, permission and approval of the said Attorney".
18. ' It seems that the attorney left in October/November, 1980 and Miscellaneous Rent Application No.1388 was filed in the year 1982. The rent for the months of November 1980 to March 1982, and from April 1982 to September, 1982 was deposited in the month of March, 1982. It is admitted position that the obligations imposed upon a tenant to pay or tender the rent in the manner prescribed by law has not been discharged by the appellant in the instant case.
19. ' Reference may be made here to a recent judgment of our Supreme Court in the case of Mst.
20. Alima Ahmed v.Amir Ali PLD 1984 SC 32. The facts of the case were that an ejectment application had been filed on the ground of non-payment of rent, default and neglect on the part of the respondent/tenant to pay monthly rent from April 1970, February, 1971 the tenant's defence was that he paid rent from April 1970 to September 1970 by cheque dated 20-8-1970 and next by money order on 27-3-1971 for the rent of October 1970 to March 1971.The Rent Controller held the issue in negative and refused to order ejectment. An appeal was preferred to the Additional District Judge.
21. The first appellate Court held that the findings of the Rent Controller as to alleged default are erroneous and in his view the impugned order cannot be sustained. According to the evidence on record and the version of the respondent himself admittedly has committed default without any justification. The second appeal was filed by the tenant which came up for disposal before the learned Single Judge of the Court. The learned Single Judge allowed the second appeal of the tenant, restored the order of the Rent Controller and dismissed the ejectment application.
22. ' A petition for leave to appeal was filed by the landlord before the Honourable Supreme Court.
23. Leave was granted and appeal of the landlord was finally accepted, and the order of the first appellate Court was restored. In the aforesaid judgment of the Honourable Supreme Court after referring to the facts of the case the Honourable Supreme Court observed as follows:- "The appellant alleged non-payment, default and neglect on the part of the respondent to pay monthly rent from April, 1970 to February, 1971. The respondent in his written statement admitted payment of rent from April, 1970 to September, 1979, by cheque dated 20-8-1970 and next lay Money order on 27-3-71 for the rent of October, 1970 to March, 1971. On this admission itself and even after allowing him the benefit of law laid down in Muhammad Yousif's case the tenant was clearly in default for April and May, 1970 and October to December, 1980. This was so in spite of his having received a notice (Exh.P.10) dated 4-9-1970 calling upon him to pay the arrears and the current rent directly to the landlady of collecting accumulated rent is of no avail in explaining these delays and default as held by this Court in Tirmiz's case. Even this explanation cannot be advanced for the default for the period October to December, 1970, after receipt of the notice (Exh.P.10). The Rent Controller was clearly in error in holding that there was no "persistent" or "wilful" default and in ignoring the law laid down by this Court in Tirmiz's case. It was not the exercise of discretion by the Rent Controller but a finding fact which is demonstrately incorrect that the ejectment of the respondent was disallowed by him. The first appellate authority referred the finding on default and discovering no mitigating circumstances directed the ejectment of the tenant.The learned Judge was, with utmost respect, under a misapprehension that it was a case of exercise of discretion by Controller which was proper one and the first appellate Court interfered in the exercise of that interference in second appeal. Further from the supposed hardship of law, the learned Judge should not have superimposed a procedure of two notices, extraneous to the statute whose provisions were to be intertreted and applied.The Ordinance protects the tenant against eviction and enhancement of rent, thereby curtailing the plenary power of the landlord to deal with his property and tenant thereof. If promptness in payment of rent, with option to the tenant to deposit it with the Rent Controller, is a condition precedent for enjoying such protections it cannot be relaxed or diluted on grounds of economic well-being, fairness or in the name of justice.
24. ' We find that the respondent was clearly in default in paying or tendering the rents for April and May, 1970 and from October, 1970 to December, 1970. There was not plausible explanation for such default. He was, therefore, liable to ejectment. This appeal is allowed with costs and the respondent is directed to hand over vacant possession of the premises to the appellant".
25. ' The Honourable Supreme Court of Pakistan has therefore, decided in the aforesaid judgment that the tenant was clearly in default in paying or tendering the rent for April and May, 1970 and from October, 1970 to December, 1970. There was no plausible explanation for such default. He was therefore, liable to ejectment. Following the law laid down by the Supreme Court it may be observed that there is an admitted default by the tenant/appellant.
26. ' In view of the position according to the version of the appellant himself, he admittedly committed default in payment of monthly which he was required to pay every month due and payable at least before 15 of each calendar month which he has failed to do so. The appellant stated in his written statement that it was agreed between the attorney of the respondent and himself that the appellant shall pay accumulated rent in lump sum of certain months to the attorney himself and no one else. Admittedly according to his own written statement the attorney of the respondent left either in October, 1980 or November 1980 but the appellant never cared to sent the rent by Money order or deposited the same with the Rent Controller as required by the Rented Premises Ordinance. According to the version of the respondent himself admittedly has committed default without any justification. Moreover, the defence in respect of non-payment of rent taken by the appellant in his written statement that the rent collector never came to collect the rent after October and November, 1980. It is hardly any defence to advance as it is the duty of the tenant to tender the rent to the landlord or to his attorney and if he does not come to the tenant that the tenant should have either go to the landlord and tender the rent or he did not want to go to him then he could have either sent by money order or could have deposited in the Court of Rent Controller which had not been done.
27. ' As a result, first appeal No. 300 of 1982 is dismissed but with no order as to costs. The appellant is granted 2 months time to vacate() the premises provided he continues to deposit rent with the Nazir of the Rent Controller.