1. ' This First Rent Appeal is directed against the order dated 11-3-1990 passed by the IVth Senior Civil Judge/Rent Controller, Karachi East whereby the application under Order IX, Rule 13 read with section 151, C.P.C. And section 19 of the Sindh Rented Premises Ordinance, 1979, was dismissed.
2. ' The facts leading to the filing of the above appeal are that respondent No,1 filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) against the appellant on the ground that the appellant has committed wilful default in payment of rent and had sublet the shop to some other unauthorised person and the respondent wanted the premises for his personal bona fide use as he is jobless person. It seems that respondent filed affidavit in ex parte proof as the appellant did not file any written statement. The learned Controller passed ex parte eviction order against the appellant. The appellant filed an application under Order IX, Rule 13 read with section 151, C.P.C. And section 19 of the Ordinance for setting aside ex parte eviction order on the ground that he was never served with any notice of the above case nor he had any knowledge of the above case. The respondent contested the application. The learned Senior Civil Judge and Rent Controller, on consideration of the arguments advanced by the parties, dismissed the application as stated in the earlier part of this judgment.
3. Hence the present appeal.
4. ' The respondent No,1, though served, has not appeared for reasons best known to him.
5. ' I have heard Mr. Sulleman Kassam in support of the above appeal.
6. ' The learned counsel has submitted that no notice was sent by registered post with acknowledgment due nor pasting of notice on the conspicuous place of the address was done. In support of this submission, reliance is placed on a decision reported as Bashiruddin Qureshi v.
7. Major (Retd.) Aminullah Khawaja (1985 CLC 316).
8. ' I have perused the record and proceedings of the Case No,454 of 1988. It appears from the reports of the bailiff that on 11-8-1988 he could not serve the notice as the address was incomplete. On another report dated 19-10-1988, the bailiff stated that he could not find the appellant at the premises. He however visited the place on 1-11-1988 but the appellant refused to accept the notice.
9. Ultimately the respondent filed an application under Order V, Rule 20, C.P.C. For substituted service.
10. The service was effected. It seems that notice on the outer door of the disputed premises was not pasted in presence of any witnesses. It is well-settled that compliance of Rules 105,106, 107 and 108 of Sindh Civil Court Rules is mandatory provision without which service cannot be effected. It further seems that Controller without applying his mind to the facts of the case and without coming to conclusion that in spite of best efforts on the part of landlord, the tenant could not be served for reasons that he had been avoiding service with object of obstructing disposal of the case. In these circumstances, tenant was unaware of proceedings filed by the respondent No,1 against him. It further held that application under Order V Rule 20, C.P.C. For substituted service was not warranted by the facts of the case and the learned Controller erred in granting the same. In the case of Bashiruddin Qureshi supra, it was held that the bar contemplated under section 19 will operate only when the opponent has been served and does not file written reply within the stipulated time. In such case the Rent Controller can pass ex parte order against that opponent and after having passed such ex parte order, he is divested of the power to rescind the same. This has been so provided in order to give a touch of finality to the ex parte order and as such opponent against whom ex parte order has been passed, can file appeal before the appellate Court. The appellate Court under section 21(3) has the power to hear the parties and make such further enquiry either by himself or by the Controller and make an appropriate order which shall be final."
11. In the instant case I have already held that the appellant against whom ex parte order was passed was not actually served in the main case.
12. ' In this view of the matter, the appeal is allowed, the impugned order dated 11-3-1990 is set aside and also ex parte order dated 15-8-1990 is set aside. The case is remanded to the IVth Senior Civil Judge and Rent Controller, Karachi East for disposal in accordance with law within three months from 1-11-1992 after affording opportunity to the respondent/landlord, as well as appellant/tenant.
13. ' The above are the reasons for short order dated 1-11-1992 passed on conclusion of the arguments.