' This appeal is directed against the ex parte order of eviction dated 19-7-1990. The respondent had sought the eviction of the appellant/tenant on the ground of personal requirement and after the appellant could not be served in person, substituted service by way of publication in a Karachi newspaper was ordered and on the failure of the appellant/tenant to appear on the date fixed for the hearing of the case, she was proceeded against ex parte and the impugned order of ejectment was passed against her. Her contention is that she was out of country all along and under the circumstances could not be expected to know of the hearing of the case through a publication in a Karachi newspaper. When the appeal came for hearing before the Court on 23-12-1990 for hearing of C.M.A. No,1348/90, it was ordered that this application would be heard alongwith the main appeal and since a very short point was involved, the main appeal itself would be heard on 21-1- 1991. Learned counsel for the parties have been accordingly heard on this date.
2. The brief facts of the case are that on 27-34990 the respondent filed ejectment application against the appellant for her ejectment on the ground of personal requirements. It was ordered that notices should be issued to the appellant/tenant for 16-4-1990. Notices were accordingly issued on 28-3-1990, the bailiff went to the premises on 5-4-1990 for effecting service and reported that the house was locked. Two attesting witnesses confirmed the report of the bailiff. When the matter came up for hearing before the Court on 16-4-1990 and it was found that the appellant was not served, fresh notices were ordered for 20-4-1990. However, no notices were issued for this date which also turned out to be holiday. As a result, the case was taken up by the learned Rent Controller on 21-4-1990 when the Court ordered the issuance of notice for 13-5-1990. The notices were actually issued on 22-4-1990 and although the bailiff went for service twice, the appellant could not be found. On 13-5-1990 the Court again ordered further issuance of notice for the next date (22-5-1990) and it was ordered that in case of absence of the appellant, notices should be served by affixation "in the presence of two witnesses" and also by registered A/D post. It is not clear from the order of 22-5-1990 as to whether the service had been effected as per order of 13- 51990. However, orders for substituted service through publication in daily `HURRIAT' were made for 9-7-1990. Notices were accordingly published and on the failure of appellant/tenant to appear on the date fixed, ex parte proceedings were taken against her on 9-7-1990, ex parte proof was filed by the respondent on 17-7-1990 and ex parte ejectment order was made on 19-7-1990 which order is now impugned in this appeal.
3. Learned counsel for the appellant has pointed out that vide order dated 13-5-1990, service of the appellant was to be effected by affixation in the presence of two witnesses and by registered post and since this had not been done, the learned Rent Controller was not justified in ordering substituted service through publication in the newspaper. A perusal of the record shows that although the learned Rent Controller did not make any observation as to what had happened to the notices sent by registered post to the appellant, however, a registered envelope is on record which shows that the notices sent by registered post on 15-5-1990 were returned to the Court with the report that the addressee had left the premises. However, it is correct that service by affixation was not made in the presence of two witnesses, or in the presence of any witness at all and the report of the bailiff as to affixation gets support from his own endorsement only. Learned counsel for the appellant relies on 1983 CLC 2392 (Shahbaz versus The Additional District Judge and others) in which it is held that when notice of ejectment proceedings is not personally served on the tenant because he could not be found and the Rent Controller directs issuance of fresh notice to be served by affixation on the tenant if the tenant avoided to accept the same but the process server, after he fails to contact the tenant, served the tenant by affixing a copy of the notice on the premises, then under such circumstances the tenant could not be lawfully served by publication because the tenant had not avoided to accept the service. Another reported judgment on the question of substituted service is 1983 CLC 2981 (Samiullah v. Yar Mohammad) in which it is held that substituted service under Order 5, rules 17 and 20 is penal in nature and should not be resorted to lightly. Other judgments relied upon by the learned counsel for the appellant are 1986 CLC 2103 (Shoib Ahmed v. Mohammad Tariq), 1987 CLC 635 (Fateh Gul versus M. Nawarul Huda), 1986 CLC 06 (Haji Karamat Hussain versus Nek Khan Mohammad), 1984 CLC 1133 (Sharafuddin v. Mst.
Kishwar Jehan), PLD 1981 Kar 82 (Mst. Zubeda Bai v. IInd Rent Controller, City Court Karachi) and 1985 CLC 25 (Abdul Sattar v. Ali Ahmed). I have gone through all these judgments.
4. When at the inception of the hearing of the appeal it was pointed out by the learned counsel for the appellant that the appellant was out of the country throughout the rent proceedings, I had directed learned counsel for the appellant to submit the Passport of the appellant in proof of this contention and for that purpose the hearing was adjourned for two hours. Learned counsel then produced the Passport of the appellant which showed that the appellant left the country for United Kingdom on 18-3-1990 and returned on 6-12-1990. This position was not contested by the learned counsel for the respondent. It would thus appear that the ejectment case was filed by the respondent 9 days after the appellant had left the country for United Kingdom. During all this time the rent appears to have been regularly deposited in the Court by someone on behalf of the appellant as the relations between the parties were strained. The respondent had earlier filed an ejectment application against the appellant sometime in 1980 also on the ground of personal requirements which had been dismissed.
5. Under these circumstances, when the appellant was not present in the country, she could not be served in person or through registered post and the reports of the postman and of the bailiff are therefore unquestionably correct when they state that the appellant could not be found and the premises were locked. In para-7 of the ejectment application, the respondent had himself stated that the appellant had been residing with her son in England and eversince the death of her husband on 19-11-1986 the tenements were lying locked but the rent was being deposited in the Court every month. It would thus appear that the respondent was aware that the appellant was out of the country and in England. As such, substituted service through publication in an Urdu newspaper of Karachi was of no avail. It was argued by the learned counsel for the respondent that the respondent was not aware of the address of the appellant and only knew that she was in England and as such neither notices could be sent to her by post nor substituted service through publication in an English newspaper could be made.
' This may be so bat the fact still remains that the ejectment proceedings were instituted on 27-3- 1990 whereas the appellant had left the country only nine days ago. It was also argued by the learned counsel for the respondent that even before the appellant left the country on 18-3-1990, she was even then not living in demised premises and was living with other relatives or dependants and in support of this claim, he pointed out that the gas-leak had occurred in the demised premises and the residents of adjoining tenement had filed a complaint with the Gas Company and the said company had found the premises locked and it was not in a position to repair the leak and had closed the gas supply from the outside and this had happened on 13-3- 1990. This may show that the appellant had abandoned the premises and was no longer living in them and this may be an additional ground for seeking her ejectment but so far as the present appeal is concerned this circumstance is not relevant. The appellant may as well have shifted to some of her relatives or dependants shortly before going abroad. I am satisfied that if the respondent had made genuine efforts to find out the foreign address of the appellant, he would have succeeded in his attempts.
6. It would follow from the above discussion that the appellant, being out of the country, was not aware of the institution of this suit and the passing of the ex parte ejectment order. Service through affixation was not proper because it was not made in accordance with the order of the Court dated 13-5-1990 which stipulated that affixation should be done in the presence of two witnesses. It does not help the respondent that during execution proceedings, notice of execution was served by affixation in the presence of two witnesses. Service by publication in a Karachi newspaper was also of no use in respect of a person who was not present in the country. There is some force in the contention of the learned counsel for the respondent that if the appellant had left her address with the respondent, this situation would not have arisen. However, I do not think that it is incumbent upon a tenant to inform his or her landlord of the address in the foreign country to which he or she intended to go and if the appellant did not inform the respondent of her foreign address, she did not commit breach of any law. I am therefore of the considered view that ex parte ejectment order passed against the appellant cannot be maintained and must be set aside.
7. An objection as to the limitation was raised by the office and on 16-121990 the Court observed that this objection would be considered at the time of hearing. Learned counsel for the parties have been heard in this regard. The ex parte ejectment order was passed on 19th July, 1990, whereas the present appeal was filed on 12-10-1990 and apparently the appeal is barred by time. However, since the appellant was not in the country and was not served in person or through any attorney but through affixation and publication in a local newspaper, she could not be expected to know the date of hearing or the date of the ex parte ejectment order. Under the ordinary circumstances the appellant would have been expected to know of the ejectment order after her return to the country which date is 6-12-1990 but in para. 9 of the memo of appeal the appellant states that on 24-11- 1990 her son-in-law went to check the demised premises and on enquiry came to know that an ejectment order had been passed against the appellant and that it had already been executed.
The respondent in para. 9 of his counter-affidavit has controverted this position inasmuch as according to the respondent the son-in-law was also the perokar of the appellant and was expected to be in the knowledge of the service of the appellant through affixation as well as by publication as he himself was admittedly in Karachi. I do not find much force in this argument.
Service by publication was defective, as observed earlier, and when the said son-in-law states on oath that he did not come accross with the published notice, I think he must be believed. Besides, when service by affixation had not been properly made and attempt to serve the appellant in person had only been made once or twice, ordering the service by publication was not proper. I would therefore believe the appellant that she came to know of the ex parte ejectment order on 24-11-1990 through her son-in-law. The appeal having been filed within 30 days of the said date shall be presumed to be within time. This view finds support from the judgment in 1985 CLC 25 (Abdul Sattar v. Ali Ahmed).
8. For the above noted reasons I would accept this appeal, set aside the impugned ex parte ejectment order dated 19-7-1990 and remand the case to the learned Rent Controller for proceeding in accordance with law. Since both the parties claim urgency, they are directed to appear before learned Rent Controller on 7-2-1991. The appellant shall file a written statement on that date.
9. This brings us to the decision of Misc. Application No,1347/90 and 1348/90.
10. Vide C M A No,1348/90 the appellant had prayed for restoration of possession of the demised premises. In this regard learned counsel for the appellant had relied upon 1984 CLC 1133 (Sharafuddin v. Mst. Kishwar Jehan) in which it was held that if the Court comes to the conclusion that a fraud has been played upon the appellant/tenant and he has been summarily ejected, then possession should be immediately restored to him. Another judgment on the point is PLD 1981 Kar 82 (Mst. Zubeda v. Second Rent Controller City Court Karachi) in which it is held that when an ejectment order has been set aside, restitution of the possession to the tenant, if the order of ejectment had been executed in the meantime, must be followed automatically and the Court is bound to put the parties to their original position. This last is a judgment of a Division Bench of this Court in a Constitutional petition in which the order of the Rent Controller was contested and this judgment is binding on this Bench. I would therefore grant C M A No,1348/90 and direct that the appellant should be put into possession of the demised premises.
11. Under the circumstances no order is called for on CMA No,1347/90 which is dismissed.