' This appeal has been filed under section 24 of the Cantonments Rent Restriction Act, 1963, against---order dated 29th of July, 1991, whereby the Addl. Rent Controller, Lahore Cantt. Accepted the eviction application filed by the respondent against the appellant ex parte.
2. The dispute between the parties relates to House No,E/20, Nishat Colony, Lahore Cantt. On 15th of June, 1991, an application under section 17 of the Cantonments Rent Restriction Act, 1963, was filed by Mahmoodul Hassan, respondent herein, against Muhammad Nasim Butt, appellant, seeking his eviction from the house in question on the grounds of default in payment; the need of the landlord for his own use and occupation; damage to the property and subletting. This application was accepted ex parte by the Additional Rent Controller, Lahore Cantt.
3. A preliminary objection has been raised by Mr. Muhammad Siddique Butt, Advocate, appearing on behalf of the respondent, that the appeal is barred by time and as the provisions of section 5 of the Limitation Act, 1908, are not applicable to the appeals arising out of applications under section 17 of the Cantonments Rent Restriction Act, 1963, the delay in filing the appeal cannot be condoned.
He has relied upon Enterprises (Pvt.) Ltd v. Muhammad Siddique and 2 others 1990 M LD 211.
' On the other hand, it is asserted by Mr. Ayub Hassan, the learned, counsel for the appellant, that the appellant was proceeded against ex parte without due service by the Rent Controller and was unaware of the order of ejectment till 5th of September, 1991, when he was ejected from the house in execution of the order. According to the learned counsel, the limitation in the present case would run from the date of knowledge of the appellant.
4. The order impugned in this appeal was passed on 29th of July, while the appeal was filed on 15th of September, 1991, i.e. After the expiry of the period of limitation prescribed for filing an appeal under section 24 of Cantonments Rent Restriction Act, 1963.
5. There is no cavil with the proposition that section 5 of the Limitation Act is not applicable to these appeals but the question which arises is as to from what date the period of limitation is to be computed. Admittedly, the appellant was proceeded gains ex parte and his case is that he had no, knowledge about the ex parte order of ejectment till 5th of September, 1991, when he was dispossessed in execution of that order. In these circumstances, the contention of the learned counsel for the appellant that the limitation should be computed from the date of knowledge of the appellant appears to be correct and is fully supported by the Division Bench Judgment of this Court in Syed Muhammad Alam v. Syed Mehdi Hussain and 2 others PLD 1970 Lahore 6, wherein the view taken was that notwithstanding non-application of section 5 of the Limitation Act, if an order has been passed without any notice to the affected person, the limitation in such case would run from the date of knowledge and not from the date of order. Respectfully following the above dictum, I hold that as on the record sufficient service on the appellant has not been established; the limitation would run from the date of his knowledge, i.e. 5th of September, 1991, and, therefore, the appeal would be within time.
' C.M. No,1 of 1991 for condonation of delay stands disposed of in the above terms.
6. As regards the merits, a perusal of the record shows that no proper service was effected upon the appellant at all. The Rent Controller appears to have acted with undue haste in proceeding ex parte. The ejectment petition was presented on 15th of June, 1991, and next date fixed for service of the appellant was 20th of July, 1991, i.e. Only after five days. On the summons issued for the said date, there is a report by the Process-Server that the appellant was avoiding service but surprisingly enough, no date on which the said report was made nor the date when he visited the house' has been mentioned therein. There is no affidavit sworn by the Process-Server. On the face of it, therefore, this report could not have been relied upon by the Rent Controller. However, on the basis of this report, the Rent Controller directed that the appellant be served through registered post as also by affixation. From the record, it appears that the notice was issued on the same date on which the order was passed, i.e. 29th of July, 1991, and report was made by the Process-Server on the same date to the effect that the notice had been affixed on house of the appellant. This report again is not supported by any affidavit. There are no witnesses in the presence of whom the affixation is said to have been made.
7. As regards the report of the Postman, it appears to be self-contradictory on the face of it and could not be relied upon. Even otherwise, there is nothing in report to indicate that notice was ever refused by the appellant.
8. Be that as it may, even on merits, the impugned order is not sustainable. It is to be seen that after proceeding ex parte, the Rent Controller recorded the statement of the appellant who merely stated that the contents of the application for ejectment were correct and an order for ejectment be passed, on which the Rent Controller observed that the contents of the application, prima facie, stood proved. He, therefore, passed the order of ejectment against the appellant. This order on the face of it shows no application of mind by the Rent Controller. It is not even discernible as to on what ground the appellant was being ejected. Even if the appellant was being proceeded ex parte, it was incumbent upon. The Rent Controller to have decided the matter on merits after due application of mind.
' In view of what has been stated above, this appeal is accepted, the impugned order of the Rent Controller is set aside and the case is remanded to the Rent Controller for decision afresh after giving the appellant an opportunity to file his written statement.
' There shall be no order as to costs.