' This is a Second Appeal against the order dated 21st April, 1983 passed by the IlIrd Additional District Judge, Karachi in Rent Appeal No.190 of 1979 upholding the order of the XVth Civil Judge/Rent Controller, Karachi in Rent Application No.2217/1976 whereby the appellants were ordered to be ejected ex parte.
2. The facts giving rise to this appeal, briefly stated, are as under:-
3. On 11-5-1976 respondent filed a case being R.C.No.2217/76 in the Court of IVth Rent Controller, Karachi. The appellant could not be served in the ordinary course and, therefore, the learned Rent Controller ordered on 10-2-1977 for service by affixation as well as by Registered' Post in addition to service in ordinary course and fixed the case for 14-3-1977 the notice was returned by the bailiff with his report. The case was then put off to 15-3-1977 for orders. On 15-3-1977 and there after on four subsequent. dates the matter could not be taken up for orders for want of time. On 9-7-1977 the learned Rent Controller after perusal of the endorsement of the postman on envelope and the bailiff's report, held the service satisfactory and since the appellant did not turn up to file written statement or objections, he ordered the case to proceed ex parte against the appellant and put off the same to 25-7-1977 for filing ex parte proof. The matter was adjourned on four subsequent dates and lastly on 29-8-1977 the affidavit in ex parte proof was filed by the respondent and the matter was put off to 3-9-1977 for orders. However, no orders could be passed on three subsequent dates for want of time.
4. On 4-10-1977, late diary shows, an application was filed on behalf of appellant under Order IX, rule 7, C.P.C. On 5-1-1978 the case was transferred to the Court of XVth Rent Controller, Karachi who after hearing the parties dismissed the said application by his order dated 20-1-1979, refusing to set aside the order dated 9-7-1977 for ex parte proof. Subsequently on 4-2-1979 he allowed the ejectment application ex parte.
5. Being aggrieved by the said order, the appellant filed an appeal in the Court of District Judge, Karachi who was pleased to transfer the same to the Court of IIIrd Additional District Judge, Karachi for disposal according to law. The learned IIIrd Additional District Judge dismissed the appeal by his order dated 21-4-1983 against which the appellant has preferred this- Second Appeal.
6. I have heard the learned counsel for the parties. On perusal of the diary sheet dated 10-2-1977 it appears that the Rent Controller ordered the issuance of notice to the appellant through bailiff as well as by way of affixation and by Registered Post A.D. for 14-3-1977. There is a report on solemn affirmation of the bailiff on record about affixation of the notice on the outer door of the premises in question, but there is no report of the bailiff of the service of the notice on the appellant in ordinary course. Both the forms of notice meant to be served through bailiff are available on the file at pages 67-1969 of the ejectment case which appears not to have been issued at all, probably for the non-payment of cost. There is also no notice on the record issued through Registered Post for 14-3-1977 as ordered by the Court referred to above. The learned Controller appears to have relied on the notice issued by Post and returned by the Postman with an endorse ment "as refused" but that pertained to an earlier date of hearing as 26-10-1976.
7. The provisions of law relating to the service by affixation are to be found in Order V, Rule 17, Civil Procedure Code, 1908 and rule 107 of the Sind Civil Courts Rules, 1927 and rule 17 of Order V of the Civil Court Rules, 1947. Rule 17 of Order V, C.P.0 reads as under:- "Where the defendant or his agent or such other persons as aforesaid refused to sign the aknowledgment, or where the service officer, after using all due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so afffixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed."
8. Rule 10 of the Sind Civil Courts Rules, 1947 relating to procedure where defendant refuses to accept service or cannot be found reads as under:- Where the person to be served refuses to sign the acknolwedgment or cannot be found, the serving officer shall, whenever possible, before affixing a copy of the summons on the outer door of the house of such person, obtain on the original process the endorse ment by signature or thumb- impression of at least one respectable person of the locality in support of such fact."
9. On perusal of the report on solemn affirmation of the bailiff for affixation of notice it is apparent that the report does not mention the name of any witness in whose presence the notice was stated to nave been affixed, which is the requirement of rule 107 of the Sind Civil Courts Rules, 1927 and rule 17 of Order V of the Civil Procedure Code, 1908. I, therefore, reverse the order dated 14-3-1977 of the Controller as to the service of notice on the appellant.
10. On the application under Order IX, rule 7 moved by the appellant, the learned Rent Controller on 1-2-1978 passed an order to the effect "it will be in the interest of justice to examine the bailiff who has served the notice in the case. Issue summons to the concerned bailiff for his examination before the decision of the above applications filed by the parties' counsel. Put off to 17-2-78 for evidence of bailiff." It may be pointed out that the respondent had also filed an application under Order XIX, rule 2, C.P.C. subsequent to the Appellant's applica tion under Order IX, rule 7, as aforesaid.
11. For reasons not available on record, the evidence of the bailiff was not recorded on that date.
Meanwhile the case appears to have been transferred to another Court of Controller who dismissed the said application by his order, dated 4-2-1979. It appears that the order, dated 1-2- 1978 for examination of the bailiff was not brought to the notice of the learned Rent Controller.
12. The learned Appellate Court appears to have misread the affidavit filed by the appellant alongwith her application under Order IX, rule 7, C.P.C. The learned Judge hearing the appeal also failed to appreciate the effect of not examining the bailiff. Furthermore, he was led away by the impression that the son of the appellant came to know of this case on 4-10-1977 who heard the peon calling the name of the appellant on 4-10-1977. The relevant paragraph of his judgment reads as under:- "On 4-10-1977, according to the apellant her son (sic) Ismail Parekh heard that peon was calling her name but record shows that on 4-10-1977, case was adjourned for want of time to 11-10-1977. The question of calling appellant does not rise for the simple reason that she was already ex parte and for the reason that the matter was fixed for order and on 4-10-1977 for want of time, Rent Controller adjourned the matter to 11-10-1977."
13. The fact about the knowledge of the case is clearly borne out of the affidavit of the son of the appellant as well as the appellant herself. As stated in the affidavit of Ismat Parekh son of the appellant, he had come on 28-9-1977 in the Court of Ilnd Rent Controller, Karachi in R.C. No.2383/69 which is pending between the same parties and when he reached near the Court of 1st Rent Controller he heard the peon of the 1st Rent Controller, where the above case was pending, calling the names of the parties, and on inquiry from the bench clerk he came to know about the said case.
14. In the counter-affidavit filed by the respondent himself it was admitted in para. 3 that on 28-9- 1977 R.C. No.2383/69 between the same parties was fixed in the Court of Ilnd Rent Controller for inspection of the flat in dispute. The fact that the said case No.2383/69 was fixed for 28-9-1977 for inspection of the flat in question is also admitted in the counter-affidavit of the respondent himself filed in reply to the application under Order IX, rule 7, C.P.C. Notwithstanding the fact that the said Case No.2383/69 was being defended by the counsel for the appellant it was all probable, if not essential, that the son of the appellant might have also gone to attend the Court as the matter was fixed for inspection so as to accompany the counsel and to facilitate the Court and while passing through the corridor of Court No.1 in order to reach Court No.2 he might have heard the peon of the Court calling out the names of the parties. The observation of the learned Controller that there was no need for calling out the names of the parties on 28-9-1977 because the matter was fixed for ex parte proof, cannot be said to be conclusive as the bench clerk, without looking to the order sheet of the previous date, might have asked the peon to call out the names of the parties.
15. Looking to the facts and circumstances of case, I am of the view that the learned trial Court, by not adhering to its earlier order for examining the bailiff and by not taking any notice of the said order while dismissing the application under Order IX, rule 7, C.P.C., committed a material irregularity in the proceedings of the case which has resulted in an injustice to the appellant. The learned Appellate Court while passing the impugned order failed to appreciate this aspect of the matter.
16. I would, therefore, set aside the order dated 20-1-1979 passed by the Controller on application under Order IX, rule 7, C.P.C. dis missing the said application. I would also set aside the impugned orders dated 4-2-1979 ordering ejectment by the Controller and 21-4-1983 of the learned Appellate Court upholding the same. With the result, the application for ejectment filed by the respondent against the appellant is deemed to be pending in the Court of XVth Civil Judge/Rent Control ler.
Karachi and the appellant is allowed to file her written statement and defend the case.
17. In view of the fact that the case has already taken about seven years, I would direct the learned Rent Controller to complete the trial of the case within three months from the date of the receipt of this order. The parties' counsel have been directed to appear in the Court of XVth Civil Judg/Rent Controller on 5th September, 1984 to obviate further delay in the matter.
18. Before parting with the case I would like to observe that the fundamental principle of justice is that the case is tried and judgment is pronounced after giving due opportunity to both the parties to present their case. It is, therefore, expedient that ex parte orders and judgments should be avoided as for as possible. In matters of holding service to be good the usual affidavit of the bailiff serving the summons by affixation or otherwise and the endorsement of the Postman simply stating "refused by the addressee" should not be taken lightly. It will be appreciated if the Courts examine the bailiff and the Postman in such cases, as Court witnesses, particularly when at the time of holding service as good the affected party is not before the Court. The burden on the Court is heavier in such a situation. The Court must be more cautious at the stage of service, keeping in view the standard of morality and social behaviour of the people around us.
19. In the result, the appeal is allowed but, in the circumstances of the case, there will be no order as to costs.