1. (Vol. Xiv S. Molimid Swrf KM/. GlaiBour Bropertiai (Pvt) Ltd. C.C. 436(AMdM^MdKlwaxa^J)contention reported in 1989 C.L.C. 2183, 1394, 691, 1983 C.L.C. 1462, 1989 M.LJX m 1988 M-L3X 105, 1987 CL C.
2. 635and an unreportcdjudgmentof Supreme Court of Pakistan in Oiyil AppealNo.321/91 dated l3 J.1992 white Mr. Iqbal Kazi supported the knpugped orders and stressed that no illegality is committed in serving the appellants/opponents in the trial Court.2. The crucial point involved in the case isas to whether Rent Controller was justified to pass exparte order dated 5.4.88 against the appellants, on the basis of the material availablepa record.3. Admittedly the notices returned unserved on four occasions i.e. For hearings 6.10.1987, 27.10.1987, 26.11.1987 and 20.12.1987. The notices for,6.10.1987 were returned with the endorsement that the rented premises wasdosed and at the given residential address of tenants no such persons are living there, It is pertinent to note that the notices for 6.10.1987 neither bears signature of the issuing authority nor the seal of the Court, as such the same were no more legal notices and liable to be overlooked, lie notices fot 27,10*1987 were returned with the endorsement that the rented shop was closed, while the residential house could not be located. This also not a valid service. Thfi notices for 26.11.1987 were retuned with the same endorsement as that of 6.10.1987 because the bailiff happens to be the same on both occasions i.e.'- forhearings 6.10.1987 and 26.11.1987, The notices for 20.12.1987 were Mined with the endorsement that the shop in question and so alsothe residence given-inthe notices were found dosed. '-'4 ' 'I4. In order to serve the opponents in the Rent Case, the Rent Controller jssue process through bailiff only and not by Registered Post A.D. Simultaneously as required under Order 5 rule 10-A C.P.C. This is clear violation of the requirements of law. On 20.12.1987, when application wider Order 5 rule 20 C.P.C, for substituted service was made, the Rent Controller, without applying its judicious mind to the requirements pfOrifer S rule 20 C.P.C, allowed the said application by passing an unreasonable order mentioned above. The record of the case does not show that the notice was also panted on Court Notice Board in compliance of the order dated 20.12.1987. The record is also silent as to Whether the notices for 25.2.1988 were also sent tothe opponents by Registered Post A.D., as ordered by the Rent Controller Sn its order dated 20.12.1987.5. In dew of the above position, it s clear that the order dated20.12.1987 was not complied with in its true sense and meanings, as such the Rent Controller was not justified to pass ex parte order against theappellantsin the6. The legal requirement of order 5 rule 17C.P;C.Is that the notice should be pasted on the given address in presence of some person as witness, but in the instant case the notices were pasted by the bailiff on his own and hi absence of any witness, as such it cannot be termed as service by pasting on the opponents, in accordance with law. The legal requirement of order 5 rule 20 CP.C is that where Court is satisfied that there is reason to believe that defendant is keeping out of way for the purpose of avoiding service or that for any other reason thesummons canoot be served in the ordinary way, tbf Court shaQ order service by pasdag or is any such other manner deemed fit In the instant case vide order dated 20.12.1987 amice was ordered by way of (i) publication in newspaper (ii) affixation oq the case premises and the Court Notice Board and also
(tii) Registered Post A.D. The Rent Controller failed to satisfy itself whether notices were pasted on Court Notice Board and secondly whether notices were sent to opponents through Registered Post A.D The record is silent in this respect. Moreover, there was no evidence to show that appellants/tenants were avoiding service.7. In the name of appeal, the appellants who are opponents in the Rent Case, are shown to be son and mother, as appellant No. 1 is son while appellant No. 2 is widow of Abdul Khalique, but in the Rent Case the}' are shown as husband and wife, as the opponent No. 2 appellant No. 2 Is shown as wife of opponent No. l/appellant No. 1. On this aspect of the case none of the learned advocates argued before me, as such it is left for the parties and the Rent Controller to determine as to which of the relation between them is correct11, For the facts and reasons mentioned above, I set aside the impugned orders dated 5.4.1988 and 22.1.1991 and allow the appeal with no order as to costs. The case is remanded to the learned Vth Rent Controller, Karachi-East for fresh decision pn merits after giving chance to the appellants to file their written statement, recording evidence of both sides and hearing them.