' This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan calls in question the order of the Rent Controller, Faisalabad, dated 11th of October, 1988, which was affirmed in appeal by the Additional District Judge, Faisalabad, vide his judgment dated 20th of May, 1990.
2. The facts forming the background of the dispute are that .On 21st of September, 1985, an application under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, was filed by respondents Nos.1 to 4 against the petitioners with respect to godown Nos.8 and 9, Block No,6, Tata Factory, Factory Area, Faisalabad. From the record, it appears that the notices were ordered to be issued by the Rent Controller to the petitioners for 6th October, 1985. On that day, the Presiding Officer was on leave and the notices had not been received back. Consequently, the Reader of the Court directed that the notices be re-issued for 12th October, 1985. On that date, the Rent Controller ordered ex parte proceedings against the petitioner as the Process-Server had reported that the petitioners had refused to accept the notices which were affixed on the door of their office. The Rent Controller after recording ex parte evidence passed an order for ejectment on 21st of October, 1985. Surprisingly enough, no time was allowed to the petitioners for vacation of the premises and they were, in execution of the order, ejected from the premises only after three days, i,e. On 24th of October, 1985.
3. On 4th of November, 1985, an application for setting aside the ex parte order of ejectment was filed by the petitioners in which they asserted that they were never offered notices for service nor did they refuse to accept the same. The application was contested by the respondent-landlords.
The Rent Controller, after framing the issues, recorded the evidence of the parties and, vide his order dated 11th of October, 1988, dismissed the application. Aggrieved by this order, the petitioners went in appeal which was, however, dismissed by Mr. Muhammad Mansoor Ali Khan, Additional District Judge, Faisalabad, vide his judgment dated 20th of May, 1990. Hence, this petition.
4. Mian Nisar Ahmad, learned counsel for the petitioners, has contended that there was no justification whatsoever for the Rent Controller to have proceeded ex parte against the petitioners on the basis of a report made by the process-server, which, on the face of it, was incomplete and not worthy of any reliance. The learned counsel has pointed out that in the ejectment petition filed by the respondents, incomplete address of the petitioners was given and they were shown as residents of Tata Factory, Factory Area, Faisalabad, but neither the number of the house nor name of road or street was specified.
5. Raja Muhammad Yaqub Khan, learned counsel for respondents Nos.1 to 4, has controverted the arguments of the learned counsel for the petitioners and has also raised preliminary objections; first being that the petitioners having failed to avail of the alternative remedy of filing second appeal under section 15(6) of the Punjab Urban Rent Restriction Ordinance, 1959, as amended by the Punjab Ordinance XIII of 1990, this constitutional petition is not competent. The next objection was that the question of service is the question of fact, findings on which are not amenable to correction through judicial review. He relied, in this behalf, on Khuda Dad Khan v. Muhammad Abdul Hanan and 6 others (1980 CLC 500).
' The learned counsel emphasized that the report of the process-server is not to be read in isolation but should be considered in the light of the statement made by him in Court as a witness and that the petitioners have themselves given the same address in this petition as it was given by the respondents in the ejectment petition.
6. Having heard the learned counsel for the parties and perused the record available, I am clearly of the view that there was whatsoever no justification for the Rent Controller to have proceeded ex parte against the petitioners and the Rent Controller as also the Additional District Judge acted without any lawful authority in refusing to set aside the ex parte order. The unsual and unholy haste with which the Rent Controller acted, while deciding the application for ejectment, leaves no room for doubt that the proceedings were mala fide and capricious. The ejectment application was filed on 21-9-1985 and the next date fixed was 6th of October, 1985. On that date, the Presiding Officer was on leave and the notices had not been received back. Surprisingly, the reader directed issuance of fresh notices for a date which was only six days away, i,e. 12th of October, 1985. On that day, the petitioners were proceeded against ex parte on the basis of report of refusal and affixation and the case was adjourned for recording ex parte proof to 16th of October, 1985, when the Presiding Officer was on leave and then again the matter was adjourned for five days, i,e. 21st of October, 1985. On that day, the ex parte order for ejectment was passed but no time was allowed for vacation of premises. It is obvious from the above that the Rent Controller acted with undue haste and in a highly unjust manner which has vitiated the whole proceedings.
7. It is also to be seen that on 6th of October, 1985, the Presiding Officer was on leave and it was the Reader of the Court, a ministerial officer who, had adjourned the case to 12th of October, 1985 and directed issuance of notices to the petitioners. The petitioners could not be proceeded against ex parte on the 18 date which was not fixed by the Court but by the ministerial officer. References I in this respect may be made to Nowsher Khan v. Said Ahmad Shah (1983 SCM R 1092).
8. There is merit in the contention of the learned counsel for the petitioners that the report made by the process-server was incomplete. The service has purportedly been effected under the provisions. Of order V Rule 17, C.P.C. But neither the time when the service was effected mentioned by the process-server nor the place where the affixation was made had been specified. In the notices, the address given was Tata Factory, Factory Area, Faisalabad. The tenor of the report shows that the service was effected at that place. However, while appearing as R.W.1, it was stated by the process-server that when he went to Tata Factory Godowns, Abdul Haq, Store-keeper of the petitioners met, who refused to accept service and instead informed him that the petitioners were working under the name of Mian Bashir & Sons at Gole Kutchery Bazar. The process-server further deposed that he went to that place where he met the petitioners who refused to accept service and he affixed the notices at that place. None of these facts find any mention in the report made by him. Unfortunately, while relying on this witness, the Rent Controller and the Additional District Judge completely closed their eyes to this obvious inconsistency.
9. As regards the preliminary objections, it is to be seen that at the time when the appellate order was passed by the Additional District Judge. On 20th of May, 1990, there was no right of second appeal available to the petitioners. The right of such an appeal was, for the first time, conferred by the Punjab Urban Rent Restriction (Amendment) Ordinance XIII of 1990, which came into force on 6th of June, 1990. This Court has already held in S.A.O. No,13 of 1990 that this amendment is not retrospective in nature and is inapplicable to cases in which the ejectment petitions had been filed prior to the promulgation of the D amending Ordinance. There is thus no force in the objection raised by the learned counsel for the respondents that the petitioners had any alternative remedy available to them.
10. As regards the second objection that the question of service is a question of fact, there may be no cavil with this proposition. But in the present case, it is apparent on the face of the record that the no service was effected at all and, while dismissing the application for setting aside the ex parte order, the Rent Controller as also the Additional District Judge not only acted arbitrarily but also completely closed their eyes to the report and the statement made by the process-server, while appearing as R.W.1.
' For the foregoing reasons, this petition is allowed, the order of the Rent Controller dated 11th of October, 1988, as affirmed in appeal by the Additional District Judge on 20th of May, 1990, is declared to be without lawful authority and of no legal effect and the application for setting aside the ex parte order for ejectment dated 21st of October, 1985, is allowed with the result that the ex parte order of ejectment stands set aside.
' There shall be no order as to costs.