1. ' This case has been called more than once since morning and none from the side of the respondent has been present even though the respondent is represented by two separate Advocates namely, Mr. Muhammad Shafi and M/s. Z.U. Ahmed and Company. In such circumstances, I am constrained to proceed with this appeal in the absence of the respondent and his learned Advocates.
2. ' The impugned order of eviction is based upon a purported service of process on the appellant- tenant through publication and is ex parte. Because the contention from the side of the appellant is that the entire proceedings before the learned Controller, leading up to publication and ensuing ex parte orders, are misconceived and unlawful, the facts pertaining to service of procees shall have to be examined in some detail.
3. ' Upon the presentation of the rent case on 7-12-1989 process for 8-1-1990 is shown not to have been issued "due to rush of work". On 8-1-1990 the case was adjourned for service to 30-1-1990.
4. Thus the first process in the case was issued for 30-1-1990 and relevant bailiffs report dated 24-1- 1990 is to the effect that the bailiff could not locate the address in the case. Similar was the fate of the next process issued for 26-2-1990, the bailiff report being dated 21-2-1990. While for the hearing on 26-2-1990 Regd. A.D. Process was also ordered nothing relative to it is on record, making it doubtful if such was issued at all. From 26-2-1990 the rent case was put off to 18-3-1990 and from 18-3-190 to 8-4-1990, when no process appears to have been issued. On 8-4-1990 none was present and the case was adjourned to 23-4-1990 on the last of which dates as well the state of appearance being identical and no notice having been issued the eviction case was adjourned to 30-4-1990, coming to be dismissed then for non-prosecution. Upon later revival of proceedings and in the foregoing circumstances, on 17-7-1990 an application, from the side of the landlord, was moved under Order V, Rule 20, C.P.C. Which was granted for service through publication, Reed. A.D, Post and by pasting. For the ensuing date namely, 4-8-1990 no pasting was effected and no Regd.
5. A.D. Process was issued. Because process, however, was awaited the matter was adjourned to 13- 8-1990 and from there for the same purpose to 19-8-1990 and then to 5-9-1990. The last- mentioned date having been declared a public holiday, the case was taken up on 8-9-1990, when copy of publication in daily `Inqilab' was received but because no one appeared from the side of the appellant-tenant the case was adjourned for ex parte proof, upon holding the sevice Rod.
6. Thereafter, the case was adjourned on no less than five occasions and the impugned ex parte order was passed on 12-12-1990.
7. ' It is the case of the appellant-tenant here that he was never served with any process nor was he placed in a position to know about the pendency of the proceedings. Mr. S. Maqsoom Hasan Rizvi also urges that the published notice in daily `Inqiab' also never came to the tenant's knowledge, he not being a subscriber to the Paper. The only time when he came to know of the proceedings, and then too fatally, was when, upon execution being issued, the respondent-landlord descended on the premises armed with police aid, bringing about the tenant's swift dispossession.
8. ' Upon the foregoing details pertaining to the service of process on the appellant, it seems that no genuine effort was ever made to serve him with the process, issued in the ordinary course. Regd.
9. A.D. Process, when ordered, does not even appear to have been issued. As to the procees through bailiff, it is evident that the serving agency was all the time groping to discover the location of the tenant-hold, obviously something which the landlord-respondent could easily have provided if he was at all interested in effecting service on the tenant. The position stands patently established now, when process in execution was forthwith implemented and the appellant-tenant even uprooted in the bargain. In point of fact, the conduct of the process-server (s) was such that the learned Controller instead of overlooking it ought to have ordered explanation(s) which manifestly was not done. This is something which can be taken in hand even now, as occasion for that will arise, in view of the order that is proposed to be passed for taking up the rent case yet again. Still, it can never be over-emphasised that the task of over-seeing the service of process in a case is a delicate one and requires undivided attention of those who have to declare such service to be good or who have to determine the course of substituted process on the state of the record. It is always, wherever vesting, a judicial exercise and has to be precise, conscious and beyond all possible doubt. A mindless approach can be disastrous and may lead to miscarriage of justice.
10. ' Clearly, the entire provisions of the Code of Civil Procedure do not apply to rent proceedings but a Controller, functioning under the Sindh Rented Premises Ordinance of 1979, can adopt and follow appropriate rules of procedure, applicable to Courts of civil jurisdiction, so far as such are in consonance with universally acknowledged principles of justice and fairplay. As a result, Order V, Rule 20 of the Code could be invoked, as in fact it was invoked, but that provision is attracted only, even in a Civil Court, where the party proposed to be served either avoids process or there is no other legitimate manner in which it can, plausibly be served.
11. ' From what has been recorded above, if even the address of the appellant-tenant could not be located by the serving agency where was the question of the appellant-tenant avoiding the process ? As regards impractability of effecting service in the ordinary course, another circumstance covered by Order V, Rule 20, C.P.C., plainly was that exigency did not arise. In point of fact, the entire conduct of the respondent-landlord is open to serious exception for surely he cannot be assumed not to be aware about the location of the property in the case and whatever heights the inefficiency of the bailiff(s) may have attained, it was easy enough for the landlord to pinpoint his very own property. Enough has already been said about Regd. A.D. Process, which was never issued. It follows, therefore, that the order of the learned Controller, directing substituted service was not a lawful order and every other order, which has followed upon the same or which is based on it, is equally unlawful. Even otherwise, the other two modes of process simultaneous to publication, directed by the learned Controller himself, were also not resorted to and it is a fact, patent on the record, that neither Regd. A.D. Notice nor pasting, as ordered alongwith publication, ever came about. This is another reason why the subsequent ex parte order, which flows from the order to effect substituted service, is without due foundation.
12. ' In the foregoing circumstances, the ex parte order of eviction passed by the learned Controller was a totally illegal order and could come to the knowledge of the appellant-tenant only when execution was issued and an attempt was made to implement such order. This, according to the averments from the side of the appellant, which remain uncontroverted on the record for no counter-affidavit has been filed, transpired on 4-4-1991, following upon which the appellant-tenant having been physically evicted and he having subsequently obtained due copy, the present F.RA.
13. Was filed on 8-5-1991. The time consumed for obtaining certified copy of the impugned order is the period between 25-4-1991 and 5-5-1991, when due copy was delivered. Such period being excluded from reckoning, the present appeal, preferred on 8-5-1991, would be in time and is to be viewed as such.
14. ' In the result, this appeal has to be allowed and the to the learned Controller for decision according to law. Meanwhile, however, and in terms of the just and salutary principle contained in section 144, C.P.C. The tenant-hold premises is directed to be restored to the appellant to be kept and maintained by him in conformity with the final orders in the eviction proceedings which, on remand, shall be deemed to be pending. For restitution there is a specific prayer and the facts of the case duly call for it. The learned Controller in execution proceedings would now ensure restoration of the status quo ante.
15. ' Parties are directed to appear before the learned Controller, upon remand, on 27-8-1992.