' Appellant Nawab Chaudhry has called in question an order dated 3-21990 passed by the IVth Senior Civil Judge and Rent Controller, Karachi East in Execution Case No,18 of 1989 which was filed for execution of the ejectment order passed on 27-2-1989 in Rent Case No,544/1988.
' The said rent case was filed by respondent No,1 Sirajul Arfin against the respondent No,2, for his eviction from the premises in litigation viz. Suite No,2 of Bungalow No,18, Tipu Sultan Road, Karachi.
Case of the respondent No,1 in his application was, that he had let out the premises in litigation to the respondent No,2 under a tenancy agreement dated 13-5-1986 by which rent of the premises was fixed at Rs,1,000. Eviction of the respondent No,2 was prayed on the grounds of default in payment of rent, personal requirement and subletting. Notices sent for the respondent No,2 in the rent case returned unserved with report of the bailiff that the premises in litigation were locked.
Ultimately the respondent No,2 was served through publication in daily `Inqilab' dated 28-1-1989.
There was no appearance by the respondent No,2 and consequently the Rent Controller passed ex parte order on 29-1-1989 and passed ex parte order of ejectment against respondent No,2 on 27-2- 1989.
' Respondent No,1 filed Execution Application No,18 of 1989 for execution of the order dated 27-2- 1989. It was during execution proceedings that appellant Nawab Chaudhry came into the picture by filing objections under section 22 of the Sindh Rentea Premises Ordinance and by moving an application under section 12 (2) of the C.P.C. Under the impugned order dated 3-2-1990 learned IVth Senior Civil Judge and Rent Controller Karachi East dismissed the appellant's application under section 12 (2) of C.P.C. Read with section 21 of the General Clauses Act. Hence this appeal.
' Mr. Ghulam Ghous learned counsel for the appellant argued that Sajjad Hussain Director of Al- Khalij Trading Company (Private) Limited had paid a huge amount of Rs,48,000 to the respondent No,1 at the time of execution of the rent agreement dated 13-5-1986 and said Sajjad Hussain was not able to establish his business and hence he wanted back the amount he had paid to the respondent No,1/landlord, who was not inclined to pay back such a huge amount and consequently with the consent of the respondent No,1 the appellant was inducted into the premises in litigation and in consideration of that the appellant paid to respondent Not entire amount that was paid by the latter to the respondent No,1 and there was such an agreement dated 12-12-1986, photo copy of which has been filed. Learned counsel for the appellant argued that the order of ejectment dated 27-2-1989 was obtained by the respondent No,1 ,by fraud because there was no proper service of the respondent No,2 inasmuch as even the notices were not pasted at the premises in litigation. In support his case learned counsel for the appellant cited the cases of:-
16. Syed Muhammad Anwar v. Shaikh Abdul Haq (1985 SCMR 1228).
17. Munshi Tamizuddin Howlader and others v. Altafuddin Moral and others (PLD 1970 Dacca 483)
18. Mrs. Bailquis Rehman v. Anjum Hameed and another (1988 SCM R 80)
19. Mst. Hajra Parkh v. M. Rashiduddin (1985 CLC 256).
' Mr. Muhammad Yasin Azad learned counsel for respondent No,1 argued that the agreement dated 12-12-1986 was a forged document because it was not signed by the respondent No,1 whose signature had been forged on, it. It was further argued that the ejectment order dated 27-2-1989 was passed in accordance with law because efforts were made to serve the respondent No,2 but he could not be served by the ordinary mode and consequently there was order for substituted service of the respondent No,2 and there was publication for him in daily Inqilab, Karachi. It was next argued that respondent No,1 had not come against the order of ejectment dated 27-2-1989 and that the appellant who was not party in the rent case, had no locus standi to either move objections during the execution proceedings or to file this appeal. It was also argued that the advance rent and the deposit paid by the respondent No,2 at the time of execution of the agreement dated 13-5-1986, were adjusted because no further rent was paid since execution of the agreement dated 13-5-1986.
' The rent agreement dated 13-5-1986 was executed between respondent No,1 Sirajual Arfin and M/s. Al-Khalij Trading Company (Private) Limited. As against that the rent case was filed against respondent No,2 Sajjad Hussain who was shown as proprietor of M/s. Al-Khalij Trading Company (Private) Limited. After having filed rent case againt a wrong party, the respondent No,1 succeeded in obtaining the order of ejectment on the basis of simply a publication published in daily Inqilab. I agree with learned .Counsel for the appellant that there should have been pasting of the notices at the outer door of the premises in litigation.
' Now I discuss the authorities cited by learned counsel for the appellant. In (i) above the point before Supreme Court was whether an application for setting aside of ex parte decree was filed after the period of Limitation. In cited case the Court ordered substituted service of defendant after forming opinion that it was not possible to have the defendant served in ordinary way and the ordinary ways of service of summons were not resorted to and it was held that irregular service of summons could not be treated as "due service" for purpose of Limitation Act. This authority does not apply to the present case. In (ii) above, process server who pasted summons at the fence of defendant's house was not examined by the trial Court under Rule 19 of Order 5, C.P.C. And the ex parte decree was held to have been correctly annulled. This authority too does not apply to the instant case. In (iii) above, service of the tenant for proceedings before the Rent Controller was not proved and the ex parte order was set aside. In the present case service of the respondent No2 through publication has been proved kid 'cited case does not apply. In (iv) above there was service through affixation of hotice but report of the bailiff did not mention name of any witness in whose presence the notice was affixed and evidence of the bailiff was not recorded and in the circumstances ex parte order of eviction was set aside.
Under subsection (2) of section 12 of C.P.C. Validity of a judgment, decree or order can be challenged on the pleas of fraud, misrepresentation or want of jurisdiction. In the instant case there is no explanation as to how the respondent No,1 filed the rent case against respondent No,2 Shaikh Sajjad Hussain when his tenant as per the agreement dated 13-5-1986 was Al-Khalij Trading Co.
(Private) Limited. In his rent application respondent No,1 did not mention name of the appellant or the part played by him or about his induction in the premises in litigation by virtue of an agreement dated 12-12-1986 which is now alleged by the respondent No,1 to be a forged document. Service of the A respondent No,2 through a newspaper like Inqilab was not satisfactory. Summons for him should have been pasted at outer door of the premises in litigation. All this shows that the respondent No,1 obtained ex parte order of ejectment in respect of the property in litigation by fraud.
I, therefore, accept this appeal and set aside the impugned order dated 3-2-1990. Consequently the order of ejectment dated 27-2-1989 passed in Rent Case No,544 of 1988 is set aside and the Rent Case is remanded to the Court of IVth Senior Civil Judge and Rent Controller karachi East for disposal according to law after impleading M/s. S. Al-Khalij Trading Company and appellant Nawab Choudhry as opponents in place of respondent No,2 Sajjad Hassain. Trial Court to allow all the parties an opportunity to lead evidence besides the evidence already on record. Costs to follow the event.