' Facts of the case are that the respondents purchased plot No,60/1 Ghulam Hussain Qassim Road, Garden West Karachi from Mr. Huzaifa vide Registered sale-deed dated 7-44986. The plot measures 1558 sq. Yards and is divided into two equal portions which were rented out by the previous landlord to M/s. Noor Sons Furnishing Co, and M/s. M.S. Engineering Works, the latter being the appellants in this appeal. The agreed rent between the appellants and the previous landlord was Rs,1,500 p.m. After purchasing the plot the respondents served the appellants with notice of attornment under section 18 of the 1979 Ordinance but in spite of it the appellants did not pay any rent to the respondents. The respondents had purchased the plot for their residential purposes. The respor dents also alleged that the appellants had stored scrap and other such material over the plot thereby impairing its value and that they had also raised unauthorised structure over the plot.
The respondents sought ejectment of the appellants on all these grounds. They had earlier filed Rent Application No,1411/87 which was at the stage of cross-examination of the witnesses of the respondents when it was withdrawn on 5-4-1988 as the parties had almost reached a settlement out of Court. However, after the withdrawal of the rent-case, the appellants did not vacate the premises as agreed which necessitated the institution of second rent case No,1274/88 out of which the present appeal aris . The appellants could not be served in person in spite of repeated attempts in all the forms and eventually they were served by publication and on their failure to appear were proceeded against ex parte and the learned Rent Controller vide impugned judgment dated 26-3-1989 ordered the appellants to vacate the premises. The appellants did not file any application under Order 9, rule 13, C.P.C. For setting aside ex parte judgment but moved an application under section 17(2) of C.P.C. Before the learned Rent Controller on 2-8-1989 and simultaneously filed this appeal on the same date and afterwards withdrew their application under section 12(2), C.P.C. On 23-8-1989. The case set up by the appellants is that after the withdrawal of the earlier Rent Case No,1411/87 (referred to above) comprorn4e had in fact been reached by the parties whereby the appellants were to remain in possession of the demised premises "on the same terms and conditions." (para. 7 of memo. Of appeal). However, the respondents soon thereafter made attempts to take possession of the demised plot by force and, consequently some civil end criminal litigation ensued between parties whereafter Rent Case No, 1274/88 was filed in which the respondents manipulated fake service of summons and even service by publication was effected in an unknown newspaper Inqilab' which was not even borne on the approved list of newspapers as maintained by the High Court and therefore the ex parte ejectment order dated 26-3-1989 is void and illegal. The appellants have not touched the merits of the ejectment application. The learned counsel for the parties have been heard and record perused.
2. The perusal of the order-sheet of the file of Rent Case No,1274/88 shows that the first date of hearing in the case was 6-10-1988 and the appellants were served in person as per signatures of Abdul Latif, one of the partners of the appellants, on the summons. However, on 6-10-1988 when none appeared for the appellants before him, learned Rent Controller ordered issuance of fresh summons by registered post for 18-10-1988. Notices were accordingly sent by registered post for this date and the postal receipt thereof is available on record. However, A.D. Receipt had not reached the Court on 18-10-1988 and therefore the hearing was adjourned to 29-10-1988 to await the return of the A.D. Receipt and it was also ordered that further notices be issued to the appellants under postal certificate as well as through the bailiff. These notices were issued on 22- 10-1988 as shown by the postal certificate available on record and notices sent through bailiff were also served through affixation. However, when the case came up before the Court on 29-10-1988, learned Rent Controller observed that the affixation was not effected in the presence of two witnesses as provided under the law and yet again it was ordered that the appellants should again be served by affixation for 14-11-1988. On 14-11-88 service by affixation had also been effected in accordance with law and service by post under registered cover as well as under postal certificate had already been effected and since none appeared for the appellants on 14-11-1988, the hearing was adjourned to 22-11-1988 for necessar orders. On this latter date, after re-examining the question of proper service upon the appellants, learned Rent Controller decided that service had still not been properly effected upon the appellants and therefore again ordered that the appellants should be served by publication as well as by registered post for 6-12-1988. Thus, service of the appellants for 6-12-1968 was effected by registered post, by publication and through bailiff. Service through the bailiff was effected by affixation. Learned Rent Controller was however still not satisfied with the service of the appellants because the notice as published in the Newspaper gave the address as 'Garden' instead of 'Garden West' and therefore ordered for fresh service by publication f or 18-12-1988. This time service by publication was in proper manner and the learned Rent Controller on 21-1-1989 held the service good and adjourned the case to 28-1-1989 for filing written statement and when on 28-1-1989 the appellants did not appear, ex parte proceedings were taken against them. Evidence in ex carte proof was filed on 9-2-1989 and finally, ex parte judgment was announced on 26-2-1989. When the respondents filed Execution application in the first week of July 1989 notices were again issued to the appellants and it appears that they were again served in person and when the Execution application was fixed for 30-7-1989 for issuing.Warrant of ejectment the appellants appeared before the learned Rent Controller for the first time. However, the appellants did not move any application under Order 9, rule 13, C.P.C. For setting aside ex parte ejectment order dated 26-34989. Instead they moved before the learned Rent Controller an application under section 12(2), C.P.C. On 2-8-1989 and on the same date they also filed this appeal (FRA No,469/88) and on 23-8-1989 they withdrew the application under section 12(2), C.P.C. This is a short summary of the events leading to the filing of the present appeal.
3. The only point raised by the learned counsel for the appellants is that the respondents manipulated the service by fraudulent means and that they had in fact never been served. To begin with, they denied that they were served on 29-9-1988 for 6-10-1988. According to them, the signatures of their partner Abdul Lateef on the notices were forged. Unfortunately for the appellants, their service for 6-10-1988 was not the only ground for proceeding ex parte against them. I have already given above the summary of the order-sheet of the Court of learned Rent Controller which discloses that learned Rent Controller did not at all act in haste in proceeding against the appellant; otherwise, he could very well have taken ex parte proceeding against them on the very first date of hearing which was 6-10-1988. Instead, he repeated process under all the possible modes of service available to a Court and that too not only once but repeatedly. Notices under registered cover were sent at least twice. So, were the notices under postal certificate. Even service by affixation was done more then once. Even the service by publication was effected twice and the service by publication for 6-12-1988 was not held good merely because, while the address of the appellants was correct and complete in all other respects, the location of the premises was only shown as 'Garden' instead of 'Garden West'. There is absolutely no justification to doubt the authenticity of the service on the appellants. I am of the view that the appellants were shown greatest indulgence as regards the service. There is nothing on record to sustain the claim of the appellants that the respondents have fraudulenty manipulated their service. As for the service through publication in the daily `Inqilab', the contention of the learned counsel for the appellants is that it was an insignificant newspaper not borne on the approved list maintained by the High Court for publication of Court notices. Such an averment was also made in para. 12 of the memo. Of appeal. In support of this contention the appellants placed on record an extract of such list as Annexure 'I', This extract is a simple copy under the signature of the learned Advocate of the appellants and it certainly does not contain the name of the daily `Ingilab' in which the notices were published on two occasions, for 6-10-1988 and for 8-12-1988. As against this the respondents have filed, with their counter-affidavit, a Photostat copy of the Notification of this Court dated 8-3- 1981 as Annexure R-1 and it shows that the daily `Inqilab' Karachi is listed at serial No,2 in the list of 15 newspapers and periodicals. The appellants did not controvert the assertion of the respondents to this effect and did not file any affidavit in rejoinder to controvert para. 10 of the counter-affidavit of the respondents in which the respondents had averred that the daily `Inqilab' was in fact on the approved list of the High Court as shown in Annexure R-1. I would, therefore, reject the contention of the learned counsel for the appellants that service by publication in newspaper was not good because it was effected in a newspaper not borne on the approved list of the High Court. It has been sufficiently established that the notices were served through publication in a newspaper duly approved by the High Court for the purpose. Learned counsel for the appellants cited two reported judgments in support of his contention that service of the appellants could not be held proper under the circumstances of the case and the citation given by him are 1983 NLR 706 and 1983 NLR
564. Unfortunately, the citations are not complete, and therefore, the judgment referred to could not be found out and the Court could not benefit from them.
4. Learned counsel for the respondent has relied upon Muhammad Sideman Malik v. Royal Trust Corporation of Canada (1979 CLC 48) which holds that summons addressed through registered post and at proper address, if not returned undelivered, shall be presumed to have been duly received by the defendant and service would be deemed to be proper under Order 5, rule 10(a) of the Civil Procedure Code. On the authority of this judgment, it was argued that since the despatch of the summons under registered cover has been proved by the postal receipt and the registered cover had not been returned undelivered, the service must be deemed to be proper in terms of sub-clause (1) of rule 10(a) of Order 5 of C.P.C. Reliance was also placed by the learned counsel for the respondent on an unreported judgment of this Court in F.RA. 446/88. The following portion of this judgment is attracted to the facts of this case and is reproduced below: "Mr. Muneer-ur-Rehman the learned counsel for the appellant has contended that there was no proper service on the respondent and in this regard he has taken me through the entire record of the learned Controller. According to the learned counsel the Controller should have ordered for examination of the bailiff, but it was dispensed with and he was never examined. The learned counsel has referred to Rule 109 of the Sindh Civil Court Rules which lays down mandatory provision required for ascertaining the service on a party. According to the learned counsel this Rule has not been complied with. The provisions of Civil Procedure Code and the Rules do not apply to the proceedings of the Controller, but it is in the interest of justice that the principles laid down in these Rules are to be followed. In the present case except that the bailiff had not been examined all possible modes for effecting service on the appellant have been adopted and demand of justice has been satisfied by issuing notice through bailiff, by registered post and by publication in the newspaper. The notice was also pasted on the outer door of the premises. All these steps were taken but the appellant remained absent. The learned counsel further contended that one set of witnesses had been made available to the bailiff, and therefore, no reliance can be placed on his report. Be that as it is from the record it seems that there were three persons who had volunteered as witnesses and the Court had also sent notice by registered post and also published it in the newspaper. Therefore, the Controller had exhausted all the available modes to effect service on the appellant. In these circumstances service by publication shall be deemed to be a valid and proper service."
It may be noted that in the present case also learned Rent Controller had exhausted all the available modes to effect service on the appellants and therefore service by publication must be deemed to be valid and proper service.
5. After taking into consideration the exhaustive mode of service adopted by learned Rent Controller, I am of the view that there is no scope for contending the bona fides of the manner in which the service of the appellants was effected. The contention of the appellants that the respondents fraudulently manipulated the service is devoid of any force. If the service had been effected merely through bailiff or only through registered post, such doubts about its genuineness could have been raised but not in the present case where service of the appellants was effected in person, twice by publication, twice under registered cover and at least once under postal certificate and twice by affixation.
6. Learned counsel for the respondents also raised the plea of limitation because the impugned judgment was passed on 26-3-1989 and this appeal was filed on 2-8-1989. He argued that section 5 of the Limitation Act was not applicable to the rent proceedings and therefore appeal should have been filed within the period prescribed in section 21 of the Sindh Rented Premises Ordinance, 1979. In this regard he relied upon PLD 1982 SC 88 (Abdul Ghaffar v. Mst. Mumtaz) wherein it is held as follows: "The second contention is also without any force. Subsection (2) of section 29 of the Limitation Act relates to special and local laws. The Sindh Ordinance, it has been admitted, is such a law. We have already held that the period of limitation for filing the appeal under this law (thirty days) is different from the period prescribed by Article 156 of the Limitation Act; therefore, as provided in section 29(2), the provisions of section 3 thereof would apply to such a situation, but subject to the exclusions contained in section 29 itself. When section 3 of the Limitation Act is applied, the provisions of sections 4 to 25 of that Act would get (normally) attracted by virtue of section 3. But if it is a case covered by section 29, provisions of sections 4 to 25 would apply only to the extent that any of them have not been excluded by the combined reading of clauses (a) and (b) - of section 29 (2). And, it is not denied that the said two clauses when read together in the context of Sindh Rented Premises Ordinance, 1979, do exclude section 5 of the Limitation Act. Therefore, the learned Single Judge of the High Court has rightly refused to apply the same in this case."
Since it is clearly held in this judgment that section 5 of the Limitation Act does not apply, the appeal is patently barred by time. Learned counsel for the appellants could not show me how in the face of the above-noted judgment, the appeal can be held to be within time. Besides, I am of the view that the proper remedy available to the appelants was to file an application under Order rule 13. C.P.C. Before the learned Rent Controller but the appellants did not avail of the same.
Instead. They moved before learned Rent Controller an application under section 12(2). C.P.C.
Which was in my humble view. Misconceived. In any case, the appellants withdrew the same on 23-8-1989.
7. So far as the merits of the case of the respondents are concerned, they were not challenged by the appellants and the memo. Of appeal is silent in respect of them. Even otherwise, on the basis of the evidence on record it is not possible to disagree with the findings of the learned Rent Controller in the impugned judgment.
8. For the above-noted reasons, the appeal is dismissed and the impugned judgment is upheld.
The appellants are allowed four months' time to vacate the premises. The parties are left to bear their own costs.