1. JUDGMENT.
2. DORAB PATEL, J.-The respondents filed an eviction application against the appellants in 1965 in the Court of the Rent Controller. Lahore for the eviction of the appellants under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. Eviction was sought on various grounds including default in the payment of rent and the Rent Controller passed the usual order for notice on the appellants. As notice was not served despite several attempts, without obtaining an order from the Rent Controller, the Process Server of the Rent Controller effected service by affixation of a copy of the summons on the door of the house of the appellants. The Rent Controller then passed an order on 27-11-1965 that the case would proceed ex parte against the appellants and in pursuance of this order, an ex parte order of eviction was passed against the appellants on 12-3-1966. Next, according to Mr. Batalvi, the appellants filed an application under Order 1X, rule 13, C. P. C. On 29-9- 1966 for setting aside the ex parts order of 12-3-1966 on the ground that they had not been served and that the respondents bad obtained the ex parts order fraudulently with the aid of the Process Server, who had submitted a false report to the Rent Controller. This application was contested by the respondents who denied the allegation of fraud against them. The applica--tion was dismissed by the Rent Controller on 13-3-1967. It would appear from this order of 13-3-1967 that only one of the appellants gave evidence in support of this application and he merely stated that the appellants had not been served. The Rent Controller was not impressed by the fact that the appellants bad thus dropped their allegation of fraud and on the basis of the evidence of the Process Server and other evidence, he held that the appellants had failed to make out sufficient cause for setting aside the ex parte order passed against them. He further held that the application was "hopelessly time-barred", accordingly, he dismissed it.
3. The appellants then filed an appeal in the District Court, Lahore on 31-3-1967 against the Rent Controller's orders of 12-3-1966 and 13-3-1967 and whilst repeating in this appeal the contention that they had not been served with the summons of the Rent Controller's Court, they further pleaded that the Rent Controller's order of 13-3-1967 was contrary to the evidence on the record.
4. The learned Additional District Judge, who heard the appeal, did not examine the contention of the appellants that the order of 13-3-1967 was contrary to the evidence on the record. He, however, held that the order for ex parte proceedings passed on 27-11-1965 was not proper, because the Rent Controller had directed service of the summons on the petitioners through their relations. But whilst the learned Additional District Judge reversed the Rent Controller's finding on the question whether the appellants had made sufficient cause under Order IX, rule 13, C. P. C., he concurred with the Rent Controller's finding that the application was-time barred and in this connection the learned Additional District Judge expressly observed that the appellants had failed to apply "for setting aside the ex parte order within thirty days of the knowledge. They have not led any evidence to show when they came to know about the ex parts order". The appeal was accordingly dismissed on 9-6-1967.
5. The appellants then filed a second appeal in the West Pakistan High Court against this order of 9- 6-1967. The learned Single Judge of the High Court, who heard this appeal, held, on the basis of this Court's judgment in Khadim Mohyud Din and another v. Ch. Rehmat Ali Nagra and another (PLD 1965 SC 459), that the provisions of the Civil Procedure Code were not applicable to the Rent Controller as the Rent Controller was not a Court. Accordingly, the learned Single Judge held that the application filed by the appellants under Order IX, rule 13, C. P. C. Was not competent, but as he was of the view that the Rent Controller could, in the exercise of his inherent powers, recall an order passed by him, he treated the order of 13-3-1967 dismissing the application of the appellants under Order IX, rule 13, C. P. C. As an order in the exercise of the Rent Controller's inherent powers. He further held that such an order did not fall under sections 4, 9, 10, 12 and 13 of the West Pakistan Urban Rent Restriction Ordinance and was, therefore, not appealable. Accordingly, by his judgment dated 20-4-1970, he dismissed the appeal. He, however, granted a certificate under clause 10 of the Letters Patent Rules of the West Pakistan High Court.
6. The appellants then filed a Letters Patent Appeal in the West Pakistan High Court which met the same fate. The learned Judges of the Letters Patent Bench were not impressed by the submission that the service on the appellants under Order V, rule 17 of the Civil Procedure Code (hereinafter called the said Rule) was bad, because the Rent Controller had not passed an order permitting service under the said Rule. The learned Judges expressly reversed the finding of the Additional District Judge that the order of 27-11-1965 for proceeding ex parte against the appellants was bad.
7. However, they held that the Rent Controller's ex parte order of eviction dated 12-3-1966 was appealable because it was an order under section 13 of the West Pakistan Urban Rent Restriction Ordinance, but they dismissed the appeal on the ground that the appellants had failed to challenge the Rent Controller's order of 27-11-1965 for taking ex parte proceedings against them, therefore, there was no evidence on the basis of which the order of eviction could be challenged.
8. The appellants then filed a petition for leave and leave was granted to consider the following questions-
(i) as to whether the appeal from an order under Order IX, rule 13 of the Code was maintainable under provisions of West Pakistan Urban Rent Restriction Ordinance ;
(ii) as to whether the Letters Patent Bench was right in taking the view that even the appeal against the order of eviction was barred by limitation ;
(iii) whether the Courts below were right in not considering as to whether the provisions of section 14 of the Limitation Act applied to these proceedings, and as to whether service by affixation could be made by the Process Server without specific order in that behalf by the Court.
9. Although leave has been granted to consider whether an appeal can lie against an order of the Rent Controller dismissing an application under Order IX, rule 13 and to consider whether the appeal of the appellants was within time, the judgment of the Letters Patent Bench turns on the finding that the Rent Controller's order of 27-11-1965 had become final against the appellants. Now, the order of eviction against the appellants was based on the evidence produced by the respondents, and as that evidence to must be assumed that it was sufficient to support has not been produced, the order of eviction, the more so, as no argument was advanced to show that this order was not supported by evidence. In these circumstances, even if the appeal of the appellants was maintainable and was within time, it must fail unless the appellants can rebut the evidence against them. This they cannot do as long as the order of 27-I1-1965 stands, vet it was challenged for the first time in this Court after nearly five years.
10. Mr. Batalvi, however, relied on the fact that the appellants had at all stages alleged that service on them had been effected fraudulently through the collusion of the respondents and the bailiff of the Rent Controller. Therefore, the contention was that as fraud vitiates all proceedings, the appellants were entitled to challenge this order of 27-11-1965 at any stage of the case. But even on the assumption that this order had been obtained fraudulently, it had to be challenged in the manner prescribed by law. Fur--thee in dismissing the application of the appellants under Order IX, rule 13, the Rent Controller had expressly observed that although the appellants had pleaded fraud, the appellant, who gave evidence before him, had not said a word about fraud in his evidence. Mr. Batalvi was not able to challenge this observation. He, however, submitted that the Rent Controller's order was contrary to the evidence recorded before him and that this plea had been taken by the appellants in their appeal in the District Court, The plea that the Rent Controller had misread the evidence was raised by the appellants in their appeal in the first Appellate Court but unfortunately neither the learned Additional District Judge nor the learned Single Judge in the High Court examined this plea. The Letters Patent Bench examined it and reaffirmed the finding of the Rent Controller. Mr. Batalvi challenged these findings but as he was aware that a finding of fact could not be re-opened in this Court he submitted that the Rent Controller and the Letters Patent Bench had misread the evidence. However, the evidence which, according to learned counsel, had been misread was not with him nor is it on the record. The submission, therefore, fails and in the circumstances I can only express my very great regret that it was advanced.
11. Mr. Batalvi then submitted that the question whether Order IX, rule 13 of the Civil Procedure Code was applicable to rent cases was itself a question of law which required examination and on the footing that this rule was not applicable to rent cases, the contention was that the application by the appellants for setting aside the ex parte order of eviction against them should have been disposed of by the Rent Controller in the exercise of his inherent powers. As this plea was raised by the appellants for the first time before the Letters Patent Bench, I would be reluctant to allow the appellants to raise it at this stage and I also find that it is not necessary to examine it, because the appellants had challenged the service on them in the Courts below only on one ground. This was that service had been effected fraudulently. As this plea has been rejected the appellants have not made out any case whatsoever for setting aside the ex parte order of eviction against them, therefore, it is not necessary to decide whether their application under Order 1X, rule 13 was maintainable, the more so, as leave was not granted to examine this question.
12. However, leave was granted to examine whether service by offixation ,could be made by the process server without the prior permission of the Rent Controller. This question turns on the construction of the said Rule, lout the submissions advanced by Mr. Batalvi were much more elaborate. Mr. Batalvi submitted that the Civil Procedure Code was applicable to rent :cases or in the alternative that Order V of the Code was applicable to rent Xa3es. Therefore, according to learned counsel, service by affixation could only have been made with the prior permission of the Court, but as service .On the appellants had been effected by the serving officer without the approval of the Rent Controller, it was contrary to the said Rule. But C assuming it was, the Rent Controller's order of 27-11-1965 would amoun ,to an approval of the service effected as the appellants, therefore, Mr. Batalvi's further submission was that as the service on the appellants was illegal and void, all orders passed against them on the basis of this .Illegal service, including the order of 27-11-1965, were null and void and .Could be challenged for the first time in this Court.
13. The only merit of these submissions is their ingenuity but as Mr. Batalvi -submitted that the service on the appellants was contrary to the said Rule, it is necessary to examine this rule. It reads : "Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using ail due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed -thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any), by whom the house was identified and in whose presence the copy was affixed."
14. The said Rule expressly states that "the serving officer shall affix a copy .Of the summons on the outer door . . . . . ." There is absolutely no ambiguity in it, and on the other hand, it may be compared with rule 20 of Order V which prescribes that service by publication shall be ordered only by the Court. Apart, therefore, from the plain language of the said Rule, it is clear from the other provisions of the Order that the said Rule was intended to empower the serving officer to effect service by affixation. But, according to Mr. Batalvi, as the said Rule was a penal provision, it should be construed strictly. In the first place, this rule is not a penal provision ; secondly the language of the said Rule is plain and free from all doubt and even if the rule be construed strictly it does not fetter the discretion o the serving officer to effect service by affixation provided the conditions prescribed in the said Rule are satisfied. In any case, the submission that the Civil Procedure Code is applicable in terms to rent cases is contrary to this Court's judgment in Khadim Mohy-ud-Din and another v. Ch. Rehmat Ali Negro and another (PLD1965SC459).
15. Mr. Batalvi then submitted that although the Civil Procedure Code was not applicable in terms to proceedings before the Rent Controller, the Rent Controller as a Tribunal would be free to follow the equitable principles contained in the Civil Procedure Code. I agree with this proposi--tion, but this is all that the Rent Controller has done in the instant case.
16. Mr. Batalvi's next submission was that the Civil Procedure Code was not applicable to proceedings before the Rent Controller, therefore, the said Rule was not applicable to such proceedings because it was a penal rule. Whilst I deprecate contradictory submissions I am compelled to examine this argument because it is supported by a judgment of a Division Bench of the West Pakistan High Court in Siraj Din v. Iqba1 Begum (PLD 1968 Lah. 639). -As in the instant case, the appellant in this case had been served by affixation under the said Rule. He, therefore, challenged this service as illegal on the: ground that as the Rent Controller was not a Court, he could not follow the said Rule because it was a penal provision. The learned Judges not only accepted the submission that the said Rule was a penal rule, but they further held that as it was a penal rule "the action of the process-server in effecting service by affixture was illegal, ultra vires and without lawful authority".
17. I am unable to agree with this judgment for more reasons than one.. Taking first the question whether the said Rule is a penal provision, as pointed out by the learned Judges, it is attracted in two situations only. The first is when the defendant refuses to accept the summons of the Court and the second is when he cannot be found. To hold that service by affixation is penal in the first situation would, in my humble opinion, amount to putting a premium on fraud and dishonesty. As to the second situation, the provision might, at first sight, seem harsh, but it is not, because of the stringent conditions prescribed by the rule-maker. Those are that the defendant has not been found by the process-server despite, "all due and reasonable diligence" and has also not left any agent or other person empowered to accept service on his behalf. Except on the assumption that the law's delays are to be encouraged, this provision cannot be described as penal. On the contrary, it is a provision which strikes a fair balance between the interest of the plaintiff and of the defendant and its object is to prevent the defendant from defeating the ends of justice by ,prolonging litigation.
18. However, if I am wrong, even on the assumption that the said Rule is a penal rule, I am unable to understand how it would be ultra vires of the Rent Controller's powers under the West Pakistan Urban Rent Restriction. Ordinance, But the learned Judge observed "If the provision of effecting service by affixture is of a highly technical and penal in nature-a proposition which was not disputed by the: learned counsel for the appellant-then we have no hesitation to, hold that technical and penal provisions of the C. P. C. Cannot be applied to the proceedings before a Rent Controller unless there be--come express sanction for the same.
19. Examining from this point of view we find that there is no section in the Ordinance saying that technical or penal provisions of the C. P. C. Should apply to proceed--ings before a Rent Controller."
20. With respect, these observations beg the question and mean reading into, the Ordinance a restriction on the Rent Controller's powers which is not contained in it. Further, in Khadim Mohy-ud- Din's case, after examining the Ordinance and section 16 on which the learned Judges in Siraj Din's case appear to have placed great stress, Fazle-Akbar, J ., as he then was, who pronounced the judgment of this Court, observed that the Controller "is not bound in every case to follow the procedure has laid down in the Code of Civil Procedure." And even with regard to the hearing of an eviction application. It was clarified that the Controller could dispose it of by an inquiry in which he was not bound "by any particular procedure". As the Rent Controller is not bound by the Civil Procedure-Code, the question of procedure and especially the procedure for effecting service on defendant is within his exclusive discretion, therefore, he would be entitled, in the exercise of his discretion, to follow the equitable principles of the Civil Procedure Code. Similarly, he would be free not to follow the technical provisions of the Code. But the converse does not follow, and because he has the discretion not to follow the provisions of the Civil Procedure Code, it does not mean that he has been divested of the dis--cretion to follow the Civil Procedure Code when he considers it necessary so to do.
21. Mr. Batalvi then attempted to support the view taken in Siraj Din's case on the basis of subsection
(2) of section 13 of the Ordinance. The submission was that as this subsection expressly imposed an obligation on the Rent Controller to give the tenant "a reasonable opportunity of showing cause against the application" by implication this obligation had curtailed the Rent Controller's discretion in the matter of effecting service on defendants. Therefore, the Rent Controller had, in the instant case, exceeded his jurisdiction by following a penal provision. The argument is totally mis-- conceived because the obligation imposed on the Rent Controller by subsection (2) of section 13 has reference to the right of the tenant to resist the eviction application after service on him.
22. Further, section 13 does not contain any provision for effecting service on a defendant-nor does the Ordinance contain any such provision. The Rent Controller's discretion in this respect is totally unfettered. This does not of course mean that he can exercise his discretion arbitrarily or capriciously. But if a Rent Controller follows a provision of the Civil Procedure Code on a question of procedure it would be monstrous to hold that he had acted arbitrarily or, capriciously. And further even if the Rent Controller's order be erroneous it would be an erroneous exercise of the discretion vested in him under the Ordinance, but an erroneous order is not an ultra vires order. Therefore, in my humble opinion, the view taken in Siraj Din's case is not correct and Mr. Batalvi's submission that the service on the appellants was illegal and void is devoid of merit.
23. Mr. Batalvi then attempted to challenge the Rent Controller's order of 27-I1-1965 on the ground that it had been set aside by the first Appellate Court. The first Appellate Court held that this order was bad because it was inconsistent with the earlier orders of the Rent Controller, and Mr. Batalvi submitted that this finding, which bad been expressly set aside by the Letters Patent Bench, was correct. But the question whether this finding is correct or not cannot be considered without the earlier orders of the Rent Controller which are, however, not available. And further as pointed out by the Letters Patent Bench, the appellants did not challenge this order of 27-11-1965 and allowed it to become final. Tae result is that the evidence produced by the respondents in support of their eviction application stands unrebutted, therefore, the appeal has to be dismissed on merits ac there is no evidence on the basis of which the appellants can resist their eviction. In these circumstances it is not necessary to examine the other questions for which leave was granted.
24. The appeal is dismissed but without any order as to costs.