1. ' These several First Rent Appeals are directed against common landlords in respect of various tenements in the occupation of the appellants-tenants. It would appear that a number of rent cases were instituted by the respondents-landlords on which processes were issued for 20-3-1990.
2. On such date if the appellants-tenants or any of them failed to put in appearance it would have arisen for the Controller to determine whether the notices issued had been returned duly served on the addressees. However, March 20, 1990 was declared a public holiday and the matters were taken up on the following day viz, March 21, 1990. It is here that the troubles started which give rise to the present Appeals.
3. ' According to appellants, appearance was made on their behalf on 21-3-1990 by Mr. Shamim Ahmed, advocate, who in the early part of the morning undertook to file power for them and the learned Controller observed that the cases would be adjourned in due course whereupon the learned counsel proceeded to attend to his other professional work fixed on such date. At the end of the day when the advocate for the appellants-tenants attended the Court of the Controller he was surprised to learn that Ex Parte orders were passed in each of the rent cases in which he had put in appearance and undertaken to file power. The facts on the record are that on 21-3-1990, such cases were adjourned Ex Parte to 26-3-1990 when affidavits in Ex Parte proof were submitted by the respondents-landlords whereupon ejectment orders were passed on 31-3-1990. This was followed on 11-4-1990 by the learned advocate for the appellants-tenants submitting applications for re-call of the Ex Parte orders of ejectment and such applications were supported by his personal affidavits wherein the above facts were detailed. Through orders dated 28-11-1990 the learned Controller has dismissed the applications for revival of proceedings. She observes that as per diary sheet for March 21, 1990, only the advocate for the respondents-landlords was shown present and service of process was held good. Subsequently also neither on 26-3-1990 nor on 31- 3-1990 there was any appearance from the side of the appellants-tenants and no explanation has been given for absence on these occasions. Besides, accordingly to the learned Controller, the applications for recall of Ex Parte orders, submitted on 11-4-1990, were far too belated and could not be granted.
4. ' Before me the learned counsel for the appellants has stated that on March 21, 1990, when he re- appeared before the learned Controller, he was astonished to learn about the Ex Parte orders and was dis-appointed and taken aback to such an extent that he was left with no presence of mind to enquire about the next date in the proceedings. At the back of his mind, however, was the anticipation of the availability of sufficient time to move for setting aside of the Ex Parte proceedings more so because a period of one month is normally to elapse before such orders attain finality. When, however, subsequent enquiries, in due course, revealed that Ex Parte evictions had been ordered appropriate applications for re-call were filed within the statutory period provided by law.
5. ' Several questions arise in these appeals but the most glaring is the one which involves simultaneous eviction orders against a number of tenants without, as they say, so much as even a shot being fired from their side. Unless, therefore, good reasons are shown and appeared from the record the irresistible conclusion would be that the evictions are not only harsh but also hasty.
6. ' In the first place, irrespective of appearance of counsel, which has been doubted, it would be necessary to examine whether the learned Court of the Controller applied itself adequately to the pre-eminent question of requisite service of process on the appellants-tenants when the matter were laid before it on March 21. 1990 in that the orders of the Controller, holding service good, appeared to be mechanical, each process was examined in these Appeals to see whether due service was in fact effected. The provision which, inter alia, govern service in rent proceedings under the Sindh Rented Premises Ordinance, 1979, is section 19 of that statute. It will be advantageous to reproduce relevant parts of such section here:- "19. Procedure: (1) Where an application other than application under section 14 has been made to the Controller under this Ordinance, he shall, unless the application is summarily dismissed by him for reasons to be recorded, issue a notice to the respondent to file written reply, if any, within such period not exceeding fifteen days of the receipt of the notice.
(2) Where on the day fixed in the notice for the respondent to file written reply, it is found that notice has been served but the respondent has failed to file his reply without any reasonable excuse the Controller may proceed to make an ex parte order and after such order has been made the Controller shall have no power to rescind such order.
(5) ...................
7. ' Subsection (1) of the aforequoted section 19, postulates that unless an application under the Ordinance, other than one under section 14 thereof, is rejected summarily, the Controller shall issue notice thereon fixing a period not exceeding 15 days from the date of service for the respondent to submit a written reply. In terms of section 19 subsection (2) of the same Ordinance in the event the Controller decides to make a so called, Ex Parte order two questions have to be determined as pre- requisites for such an order: First, it must be found that the notice issued has been served. Second, that the addressee has failed, within the time stipulated, to submit due reply without any reasonable excuse. Reference on the question may advantageously be made to Mashlakuddin v.
8. Ali Hyder (1982 CLC 644), a judgment of Abdul Hayee Qureshi, A.C.J., as he then was. In consequence, taking up the state of processes in each of the rent cases the position which emerges is this: Rent Case No,113/1990: The Bailiffs' report is that, at the time of service, a boy (Larka) came out of the tenanthold from whom enquiry was made about the addressee tenant and on his statement that he was son of tenant Muhammad Ibrahim the process was delivered, such son himself signing as Ibrahim. (F.R.A. No,28/1991).
9. Rent Case No,114/1990: Process was received, according to the bailiff, by the daughter of the tenant but the process itself reveals the signatures of Muhammad Hanif thereon. (F.R.A. No,58/1991).
10. Rent Case No,115/1990: Bailiffs' report is to the effect that a boy (Larka) appeared at the door of the tenement who, on enquiry, revealed himself to be son of the addressee and received the process alongwith copy of the application. (F.RA. No,45/1991).
11. Rent Case No,116 /1990: In this Rent Case process is shown to have been served on the tenant. (F.RA.
12. No,57/1991).
13. Rent Case No,117/1990: Process in this Rent Case is reported to have been served on the daughter of the tenant (F.RA. No,29/1991).
14. Rent Case No,118/1990: According to the Bailiffs' report process was served on tenant Abdul Ghani himself (F.R.A. No,44/1991).
15. Rent Case No, 119/1990: The process was served as per report on Iqbal Begum, who gave herself out as wife of the respondent (F.R.A. No,30/1991).
16. ' Now there are no rules which, as such, govern the service of processes issued under the Sindh Rented Premises Ordinance, 1979. In such a state of law it may not be unreasonable to conclude, as urged by the learned counsel for the appellants, that the relevant processes, addressed to a party, in the proceedings governed by the Ordinance, should be served directly on the respondent.
17. However, this approach may be too technical and would manifestly lead to delays and foreseeable difficulties in effecting due service. Strict compliance in appropriate cases, particularly those where the respondent duly makes appearance in response, may be dispensed with though, at the same time, it being assured that the rigours of section 19(2) of the Ordinance are not resorted that provision, inter alia, being penal in nature. On the same reasoning it is settled law that equitable and just principles incorporated in the Code of Civil Procedure can be invoked and taken advantage of in rent proceedings. Service of process, in consonance with the principles in the Code of Civil Procedure, if adopted in a specific case may, therefore, unless entailing penal consequences, be more or less unexceptionable. Even though the learned Controller has made no such conscious effort it can be seen, even at this level of the proceedings, whether the processes issued in the various cases before the Controller can be considered to have been properly served if the yard-stick of the Code of Civil Procedure, subject to the foregoing conditions, is applied to the same. Now, under the Code of Civil Procedure process may either be served on a defendant personally or on his authorized agent or an adult male member of the defendant's family or a person in charge of the defendant's business and soon. Even on this basis processes served on mere boys issuing from the tenanthold premises cannot be equated with service on an adult male member of the tenant's family. Like would be the position of projected service on a female member. In a similar way should be service on a person who signs the process not as himself but as the addressee. In all such circumstances service of process has to be held bad. No service, therefore, can be said to have been affected in Rent Case No,113/1990 (F.R.A. No,28/1991), Rent Case No,114/.1990 (F.R.A. No,58/1991), Rent Case No,115/1990 (F.R.A. No,45/1991), Rent Case No,117/1990 (F.R.A.
18. No,29/1991) and Rent Case No,119/1990 (F.R.A. No,30/1990).
19. ' These appeals, however, cannot exclusively be decided on the above recounted state of service.
20. This is so because, according to the appellants' own showing, appearance on their behalf had actually been registered by their counsel and this happened on March 21, 1990. It will, therefore, have to be seen whether the strict technical requirements of service would stand displaced. Even where that is so, the provision in section 19(2) of the Ordinance being penal in nature such appearance may bind the appellants-tenants but shall not give rise to any corresponding entitlement of the respondents-landlords to seek the special kind C of Ex Parte orders contemplated in section 19(2) which, on default of a written reply, may even be passed while the respondent is personally in attendance. Besides, the foregoing shall have no relevance in the two cases where the tenants had been directly served and service of process could rightly be held good. This applies to Rent Cases Nos.116/1990 and 118/1990, corresponding F.RAs. Being 44/1991 and 57/1991. Taking up first the cases where service, in the strict sense, was not effected, the entire proceedings therein beginning with Ex Parte orders and ending with the Ex Parte grant of eviction decrees would be bad if no appearance, through counsel, had been registered by the responding tenants. In the same sequence, even though the landlords do not, on facts, acknowledge such appearance by counsel and the Controller doubts it may the appellants-tenants be still taken on their own word? A cognate issue would be as to what approach may be adopted in a case where such kind of factual controversies come to be encountered. The question whether or not appearance was made by the counsel of the appellants-tenants in the earlier part of the morning of March 21, 1990, is one which has essentially to be determined on the state of the record. However, when a Court of law records a particular factual premise, which is disputed by counsel of a party the matter is not easy of resolution. Still, where counsel makes a positive assertion and the Court, which had occasion to and could repudiate the assertion, merely refers to a particular position on the record which position itself could have, in routine, emerged subsequently, positive assertion by counsel carries weight and is not to be easily discarded. Thus when Mr. Shamim Ahmad insists on his appearance and corresponding undertaking to file Vakalatnama and the Controller merely draws reference to the routine case diary where no such appearance is recorded without questioning the assertion of counsel, as such, what the counsel says has to be accepted. I would, therefore, proceed on the assumption that appearance was made as claimed by the learned counsel.
21. This gives rise to the a further question namely, whether in the state of implied waiver of the strict requirements of section 19(1) and (2) of the Ordinance, the tenants could be proceeded with Ex Parte for non filing of the contemplated written reply? It has already been observed that while such waiver on such appearance may result in an obligation of the tenant to, in due course, from the date of appearance, submit due written reply, as envisioned in section 19(2) of the Ordinance, it does not Ipso Facto attract the penalties envisaged in that provision, strict compliance being the rule for imposing penalties. Here it emerges also to clarify that the Ex Parte order contemplated in section 19(2) for failure to file a written reply, within the time prescribed, is a peculiar rule and may only occasionally be co-extensive with non-appearance e.g. When both there is default in appearance and non-filing of reply. It is only in such cases of failure, essentially relatable to absence of reply, that an Ex Parte order under section 19(2) may be passed and it is only such an Ex Parte order which, under subsection (2) of section 19 of the Ordinance, the Controller cannot recall.
22. Ex Parte orders passed on non-appearance simplicity would always remain to be dealt with on general principles of law and in consonance with well recognised canons of equity, justice and fairplay. Accordingly, whatever way one may look at the problem, the Ex Parte orders in terms of section 19(2) of the Ordinance were entirely without jurisdiction in so far as those cases are concerned where due service had not been effected.
23. ' This is not all on the subject. It has already been seen that process was issued on the tenants- appellants for March 20, 1990 which, admittedly, was declared to be a public holiday. The rule of posting of cases on the day next after the date of hearing, if such happens to be a public holiday, is a recent development in law and has come about on an amendment in the Code of Civil Procedure. Prior to this failure to appear on the day following upon the date of hearing, if declared a holiday, could not itself carry adverse consequences. This again is a strict procedural requirement, involving penal consequences and far from being founded on any equitable or just principles it has been evolved and codified to forestall delays as also to ensure convenience of the parties and the Courts of Civil jurisdiction. Thus while posting of a rent case on the day next after a declared holiday may not be contrary to norms of procedural dispensation, passing Ex Parte orders or deciding to proceed Ex Parte, in the absence of manifest contumacy, in my view, certainly is. It was, therefore, in contravention of the fundamentals in the principles of equity and natural justice for the learned Controller to decide to proceed with the rent cases Ex Parte and such orders are not sustainable even in those matters, where due service had been affected on the relevant appellants-tenants. Further, the rule being that a basic order not conforming to law or found void, the superstructure of orders resting thereupon is equally, so, renders the subsequent orders dated March 26, 1990 and March 31, 1990 equally infirm and un-sustainable.
24. Another aspect of the matter is again relevant to section 19(2) of the Sindh Rented Premises Ordinance. In accordance with section 19(1) the process to be issued by the Controller is to require the respondent to submit a written reply within a period not exceeding 15 days from the date of service. It is only when such reply, within the period fixed, is not submitted that the consequences contemplated in section 19(2) of the Ordinance should follow and such consequences, in the way of Ex Parte Orders, are of a very serious character, so F much so that the Controller himself has no power to rescind the same under the cited provision. This again is a penal stipulation and requires to be strictly construed and applied. I have examined the processes issued by the Controller in each of the cases and find that in no case any requirement was made for filing a written reply.
25. None could, in that situation, be deemed as required or called for on, before or after the date of appearance and, correspondingly, no Ex Parte orders under section 19(2) could ensue. On this score, as well, all the impugned orders are bad.
26. For the reasons which have been detailed above the impugned orders of eviction are set aside and these cases are remanded for proceeding according to law. Since it has been found that due appearances for the appellants-tenants were made before the Controller by their learned counsel, the latter shall duly file Vakalatnamas before the learned Controller as also due written statements, if any. The next date of appearance, before the learned Controller, in all these cases by the parties shall be 31-3-1991, which date has been notified to them in Court today. The written statements themselves, if any, shall be submitted on such date or dates as maybe fixed by the learned Controller.
27. ' These appeals stand allowed in the foregoing terms accordingly.