' The respondents, owners of the shop applied to the Rent Controller, Gujranwala, urban area, for eviction of Mir Mukhtar Ali, their tenant from the commercial premises on the sole ground of the bona fide personal ground. Ejectment petition was pending in the Court of Mr.Muhammad Ahmad Afghani, learned Rent Controller, Gujranwala. Written statement of defence has not so far been presented by the tenant. Instead, a petition under section 13(7) of the Rent Restriction Ordinance, 1959 as amended was moved by him. Reply was called for 9-5-1984. At this stage, through an administrative order, this rent matter (ejectment petition) was transferred to the file of Mr.Shaukat Ali Khan, learned Rent Controller, Gujranwala vide order, dated 17-5-1984 of learned District Judge.
In pursuance to this transfer order, learned Senior Civil Judge, Gujranwala before whom the ejectment matter was sub judice, on 19-5-19834, made the following order: - "Present: ' Counsel for parties.
' The case has since been transferred to the Court of Mr. Shaukat Ali, Civil Judge, First Class, Gujranwala, by the learned District Judge, Gujranwala vide order, dated 17th May, 1984, the file be sent to the said Court immediately. Parties are directed to appear before the said Court on 20-5- 1984.
Dated 19-5-1984. Sd/-Senior Civil Judge, Gujranwala."
None appeared on 20-5-1984. The transferee Court in these circumstances passed the following order:- [URDU TEXT] 8-6-1984 was a declared Holiday. However, Notice Pervi were issued as directed by the Court.
Learned counsel representing the tenant/writ petitioner were served. However, it was stated by Khawaja Abdur Rehman Advocate that the respondent has already taken away his papers from him and he, therefore, may very kindly be informed in person for the date fixed. This endorsement appears on the back of summons in the hand of the Advocate and is dated 4-6-1984. Sh.Masood, Advocate, though served, stated that he had no instructions from his client and that the tenant be served in person. When the case was taken up for hearing on 9-6-1984, the succeeding day, the learned Rent Controller found the service complete and proceeded ex parte against the tenant.
Evidence in ex parte proceedings was then recorded and an eviction order was passed on 13-6- 1984 by the Rent Controller. Eviction order has been maintained on appeal by the learned District Judge Gujranwala vide order dated 27-9-1984. These two orders one passed by the Rent Controller directing eviction of the petitioner and the other by learned District Judge maintaining the eviction order in appeal have been assailed in constitutional jurisdiction by the tenant with prayer to declare them to have been passed without lawful authority.
2. I have heard learned counsel for the parties at length. Learned counsel for the petitioner has raised the following points in support of the writ petition:-
(i) That the learned District Judge under section 15-A of the Punjab Rent Restriction Ordinance, 1959, has, in exercise of suo motu jurisdiction without notice to the parties, through an administra tive order, had transferred the ejectment petition. No notice was issued to the parties. After the transfer order had been made by the learned District Judge, learned Rent Controller before whom the ejectment proceedings were pending at the time of making of the transfer order had lost complete seizin and then could not make an order on 19th of May, 1984 directing the parties to put in their appearance before the- transferee Court on 20-5-1984. Furher proceedings and appearance was regulated by the transfer order made by the learned District Judge.
(ii) That the transferee Court could well have passed an order on 20-5-1984 dismissing the petition in default when both the parties to the ejectment petition did not enter appearance before it as directed by the learned Senior Civil Judge, Gujranwala. Nonethe less, learned Rent Controller in proper exercise of his jurisdiction to avoid prejudice to the parties directed that notice pairvi be issued to the counsel of the parties for 8-6-1984. Once notice pairvi was issued and the counsel represented that the party had taken away the brief from him or that there were no instructions for further prosecution, it became the legal obligation of Rent Controller to issue fresh notice to the party concerned. Ex parte proceedings in such circumstances could not validly be ordered/taken against the tenant who had neither been served nor communicated the date of hearing either by the Court or by his counsel. Notice in law should have been issued to the writ petitioner (tenant) despite that the powers executed by him in favour of his two counsel had not been terminated as required by Order III, rule 4, C.P.C. Mr. C.A.Rehman Advocate, in support of his contentions relied on E.F.Sandys v. Upendra Chandra Sinha Roy 13 C W N 142, 2 I C 547, Satya Pal and others v. Sant Ram and others AIR 1934 Lah. 91, Wall Muhammad v. Mst. Noor Begum PLD 1956 Lah. 75, Holy Trinity Church Trust Lahore v. Ansari Brothers PLD 1963 (W.P.) Lah. 489 to contend that in such circumstances a separate notice to the tenant was legally necessary before he could be ordered to be proceeded against ex parte. The tenant, therefore, has been condemned unheard for no reasonable opportunity of defence has been afforded to him under section 13 of the Rent Restriction Ordinance, 1959.
(iii) Notice Pairvi was issued for 8-6-1984 which was a declared gazetted Holiday. The ejectment petition was taken up on succeeding day i.e. 9-6-1984. It was not a date fixed for hearing, in that, only Notice Pairvi had been issued to enter appearance. Since 9-6-1984 was not a date fixed for hearing, ex parte proceedings could not be ordered against the tenant. Relied on Zahoor Ahmad and others v. Mst. Khurshid Bibi and others 1983 CLC 1233.
(iv) Negligence of the counsel in failing to put in appearance on the date fixed for which a notice had been issued and allegedly served upon them cannot be a valid ground for penalising the tenant. There was no negligence or carelessness attributed to the tenant petitioner when he failed to enter appearance on the date fixed. In fact he had no knowledge of the date of hearing fixed by the Rent Controller. To support his contention, learned counsel relied upon Seith Rashivrattan Ji Mohatta and another v. Messrs Mohammadi Steamship Company Ltd. PLD 1965 SC 669, Abdul Hamid Ismail v. Messrs Abdur Rehman Abdul Ghani PLD 1959 (W.0) Kar. 376, Muhammad Halim and others v. H.H. Muhammad Naeem and others PLD 1969 SC 270, Sh.Abdul Majid v. Habib Ahmad 1979 SCMR 309.
3. Muhammad Afzal Wahla Advocate, learned counsel who represented the owners contended that both the learned counsel representing the tenant before the Rent Controller had been duly served for the date fixed. 8-6-1984 being a declared Holiday, the parties were bound to appear on the next succeeding day under Order XVII, rule 4, C.P.C. Powers of both the counsel had not been terminated and, therefore, they continued to be the counsel representing the tenant. Therefore, service of notice effected upon them was a valid and legal service under Order III, rule 5, C.P.C. In case, the counsel lacked the sense of responsibility in neither appearing before the Court on the date fixed nor communicating the date fixed to the client, the Court seized on the matter was not bound to issue a fresh and separate notice to procure the attendance of the defaulting party. It was for him to have kept in touch with his counsel and the proceedings. Notice had already been issued and served upon his counsel. Under Order III, rule 5 of the Code of Procedure, any process issued and served on the pleader of any party shall be as effectual for all purposes as the same had been given to or served on the party in person. In such circumstances, a strong presumption arises that the process served on the Pleader has been communicated to the party whom the pleader represents. Counsel being an agent of the party was duly served and then it was his duty to make contact with his principal. He further contended that one of the counsel who had reported that the tenant had taken away the brief from him subsequently filed an appeal against the ex parte order of eviction, which showed that the endorsement on the process addressed to him was clearly false and incorrect and meant only to drag the proceedings unnecessarily to the disadvantage of the owners/ landlords. Learned counsel has placed reliance upon Said Ahmad v. Haji Ghulam Mahmood and another 1981 CLC 1176, Muhammad Ishaque v. Abdul Haq and another PLD 1978 Kar.
898. Learned counsel also contended that the provisions of the Code of Civil Procedure except to the extent provided in the Rent Ordinance itself are inapplicable and, therefore, the Rent Controller had afforded a reasonable opportunity to the tenant to defend his stay in the commercial premises. These proceedings are summary in nature and cannot be equated with the trial of a civil suit and the cumbersome and lengthy procedure provided for the trial of the civil suit cannot by the very nature of rent proceed ings be made applicable to them. The conduct of the tenant as exhibited on record clearly disentitles him to grant of any relief in constitutional jurisdiction which is aimed at fostering the cause of justice and is not to help a person of the type of the writ petitioner playing hide and seek before the Courts below.
4. Ejectment petition was pending before Mr. Muhammad Ahmad Afghani, learned Rent Controller, Gujranwala when a transfer order was made by the learned District Judge recalling the proceedings from his Court and entrusting the same for trial and disposal to Mr.Shaukat All Khan, Rent Controller vide order dated 17-5-1984. Transfer order made by District Judge in exercise of suo motu jurisdiction under section 15-A of the Rent Ordinance has not been placed on file by either of the parties. However, it is admitted that the learned Senior Civil Judge vide order dated 19-5-1984 directed the parties who were present before him to appear before the transferee Court on 20-5- 1984. It is correct that when the parties were present before learned. Senior Civil Judge, they in deference to the order made by him were bound to appear before the transferee Court on 20-5- 1984. Somehow, both of them did not enter appearance before the Court on the date fixed as directed by the Senior Civil Judge in his order dated 19-5-1984. The transferee Court in such circumstances could well have made some order but then it decided and quite properly to issue Notice Pairvi to the counsel for the parties. Two learned counsel represented the tenant before the Rent Controller. Notice Pairvi was served upon both. One of them reported that he had no instructions for further proceedings. The other said that the brief had been taken away from him and he was no longer the counsel. The processes issued, with these reports were received back in Court on the date fixed. Learned Rent Controller on perusal of the reports found that service had been effected upon the Advocates and this being as effectual as service upon the party proceeded ex parte against the writ petitioner. Evidence was then recorded and placing reliance thereupon, an eviction order followed in favour of the owners. Appeal as stated above has failed.
5. Question that requires consideration and decision in the instant constitutional petition is whether in such circumstances a notice was necessary to be issued to the tenant or that the service effected upon his Advocates was sufficient to burden him with knowledge of proceedings. Order III, rule 5 of the Code of Civil Procedure reads:- "Service of process on pleader.-- Any process served on the pleader of any party or left at the office or ordinary residence of such pleader and whether the same is for the personal appearance of the party or not shall be presumed to be duly communicated and made known to the party whom the pleader represents, and, unless the Court otherwise directs, shall be as effectual for all purposes as if the same had been given to or served on the party in person."
'The rule raises a presumption that service of process on the pleader of any party has been duly communicated and made known to the party whom the pleader represents. The effects of service of process on the pleader have also been provided in the said rule. It states that unless the Court otherwise directs it shall be as effectual as a service on the party in person. The presumption raised is rebuttable and the party is entitled to show that despite service of process on the pleader he has not communicated the same to him. In E.F.Sandys v. Upendra Chandra Sinha Roy 13 C W N 142, on the arrival of records from the High Court, on remand to the lower Court, it was ordered that the pleaders should be informed of the date fixed for hearing. This order was brought to the notice of the pleader for the defendants but he did not inform his client of the order and the case was decreed ex parte. In these circumstances, learned Judges of the Calcutta High Court observed that the presumption that notice to the pleader was good notice to the party had been rebutted when the pleader appeared in Court and swore that he did not inform his client of the order. In these circum stances the ex parte decree passed was declared to have been made without jurisdiction.
In Satya Pal and others v. Sant Ram and others AIR 1934 Lah. 91:- "After the transfer of a case the transferee Court issued notice to the plaintiffs personally, to their counsel and to the defendants to appear in his Court. The notice issued to the plaintiffs personally was not served. The notice to their counsel was tendered to him but he declined to accept it on the ground that he was no longer representing him. The note made by the counsel on the notice was brought to the notice of the Judge, but he took no action either to serve the plaintiffs personally or to inform counsel that service on him would be considered to be service on his clients. On the day fixed nobody appeared for the plaintiffs and the trial Court dismissed the suit."
' In these circumstances it was observed by the Court that it was unfair to penalize the plaintiff for the conduct of their counsel even if it was illegal and specially because the failure of the counsel to accept service was brought to the notice of the Court in sufficient time to enable it to serve the plaintiffs pesonally. In Wali Muhammad v. Mst. Nur Begum PLD 1956 Lah. 75, notice of the date of hearing (15th December, 1954) of an appeal was served (on 13th December, 1954) on one of the two pleaders who had filed a joint power-of-attorney on behalf of the appellant, the other pleader as well as the clients were not served. The pleader who was served, reported that he had not been engaged for the appeal, what he actually appeared to have meant, however, was that he had no instructions to appear in the appeal and was not prepared to do anything in that connection. The appeal was dismissed in default. The Court found that in the circumstances of the case, if that was not a sufficient rebuttal of presumption under Order III, rule 5, C.P.C., the presumption was so weak that it ought not to have been acted upon without giving the appellant an opportunity to produce further evidence. A strict view of "sufficient cause", it was observed, should riot be taken where the defaulting party was not obviously in the wrong. Case of E.F.Sandys v. Upendra Chandra Sinha Roy 13 CWN 142 was taken notice of by the High Court in the above precedent. Similarly in Holi Trinity Church Trust Lahore v. Ansari Brothers PLD 1963 (W.P.) Lah. 489 at 499 observed that:- "The notice issued to the plaintiffs personally was not served. The notice to their counsel was tendered to him but he declined to accept it on the ground that he was no longer representing them. The note made by the counsel on the notice was brought to the notice of the Judge but he took no action either to serve the plaintiffs personally or to inform the counsel that service on him would be considered to be service on his clients. On the date fixed, nobody appeared for the plaintiffs and the trial Court dismissed the suit. The learned Judge, Jai Lal, J. , held that it was unfair to penalize the plaintiffs for the conduct of their counsel even if it was illegal, and especially because the failure of the counsel to accept service was brought to the notice of the Court in sufficient time to enable it to serve the plaintiffs personally. I am in respectful agreement with this view and would only add that in enforcing the rigour of law with regard to process, care should always be taken that the main purpose of the issue of process is not defeated, namely, that the party itself, either personally or through recognized legal agency, which includes a duly appointed counsel with subsisting authority for representation is duly informed of the proceedings and is not condemned without a notice. In this view of the matter I concur with the decision of the learned District Judge that the ex parte order made by the Rent Controller on the 4th of November, 1960 against the respondent was improper."
' A contrary view however has prevailed in Jugal Kishore Acharyya and others v. Kapil Chandra Acharyya AIR 1934 Pat. 592 where the learned Single Judge of the Patna High Court observed:- "Under rule 5, there is a presumption that notice which was served on the pleader is communicated to the client. The only method by which a pleader can avoid his duty of communicating notices served upon him is to file a document in writing under Order III, rule 4, sub-clause (2) of the Code showing that his authority is determined. Else the irrebuttable presumption under rule 5 arises."
' In Bhai Gopal Singh Wadehra & Sons v. Pera Mal & Sons AIR 1927 Lah. 428, speaking on Order III of the Code of Civil Procedure, the learned Judge observed:- "The provisions in the power-of-attorney that the counsel has been engaged only to represent the appellant in a particular place is made merely to safeguard against his liability to be called upon by the appellant to appear for him on the fees paid to him at any station outside that place. For the purpose of accepting notice on behalf of the appellant the Vakil still conti nues to be the recognized agent of the appellant within the meaning of Order III even after the transfer of the appeal to the other place."
' The view expressed in this judgment runs contrary to the pronouncement of the Supreme Court in the case Sh.Abdul Majid v. Habib Ahmad 1979 SCMR 309. In Lal Singh v. Mst. Kartaro AIR 1928 Lah.
426, the Court, on the construction of Order III, rule 5 observed:- "The service of a notice on the duly appointed pleader of a party to a suit who had been conducting the case upto the last hearing of the case when the case was postponed to a further date and who had not intimated to the Court that he was no longer appearing in the case nor had taken any steps to get him Vakalatnama cancelled, is equivalent to service on the party and he cannot withdrawn merely by writing on the notice that service should be effected on the party's agent."
13 Calcutta Weekly Note 142 was distinguished.
' As for the contention raised that the party should not be penalized for the negligence of his counsel, suffice it to say that if the party engages a counsel, who was lacking in his sense of responsibility to the Court, it is he alone who should suffer and not the other side. This was so observed in Zulfiqar All v. Lal Din and another 1974 SCMR 162, but the rule of law laid down in this precedent case does not apply to the facts of the case in hand. Here the counsel had definitely reported back that the party itself should be informed of the date fixed. One of them had stated that the brief had been taken away. The other stated that he had no instructions to appear. In this view of the matter it can safely be said that the intimation received by the counsel had not been communicated to their client. Default, therefore, occurred in these circumstances. The teant had no notice or intimation sent to him at his given address. In the absence of any communication intimation, sent to him, he could not be burdened with the knowledge of the date fixed. The presumption raised under Order III, rule 5 stood rebutted by the endorsement made on the back of the process issued to the Advocates representing the tenant. When the Court was apprised of this situation, it was for it to have issued notice to the tenant to enter appearance for any date fixed by it. Even otherwise the notice was issued for 8-6-1984 which was a known declared Holiday being Friday. Under section 13(2) of Ordinance VI of 1959, a tenant has to be afforded a reasonable opportunity of defence. In the case under considertion, the tenant's eviction has been ordered by the Rent Controller ex parte on the ground that on the date fixed neither he nor his counsel appeared. In the absence of any communication/intimation by the learned counsel, the tenant was not aware of the date fixed. The Court had not issued any notice either. Counsel had declined to accept service of process for reasons already stated. In the facts and circumstances of this case it is evident that the learned Rent Controller acted illegally in proceeding ex parte against the tenant on the date fixed when he had not been informed of the said date either by the Court or by his counsel. In this manner, the tenant was not afforded a reasonable opportunity of defence and stood condemned unheard. Same error seems to have been committed by the learned Court of appeal when it maintained the eviction order. Writ petition is, therefore, allowed, order dated 13-6- 1984 directing eviction of the tenant and order dated 27-9-1984 passed by the learned District Judge maintaining the eviction order are set aside and declared to have been passed without lawful authority. The case shall now be taken up by the Rent, Controller for decision afresh. Rent Controller is also directed to finalize the ejectment proceedings within a period of three months even if he has to proceed with the case day to day. Petitioner shall however, pay Rs.1,000 as costs to the respondents. The costs shall be paid before the further proceedings are taken by the Rent Controller. Parties are directed to appear before the Rent Controller on 29-11-1984.