1. This appeal has been preferred against order dated 14-9-1996 passed by the find Senior Civil Judge, Karachi South whereby the application filed by the appellant for setting aside order dated 4-1-1996 for proceeding ex parte, was dismissed.
2. The respondent on 7-11-1995 had filed Rent Case No,1427/95 under section 15 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as 'the Ordinance') seeking eviction of the appellant from the premises bearing No,L-423, Sheereen Jinnah Colony, Clifton, Karachi (hereinafter referred to as the subject premises) on the grounds of default in payment of rent from October, 1995 and requirement of the premises for personal use. Notice of the application appears to have been issued for 23-11-1995 when it was returned with an endorsement of the bailiff that the daughter of the appellant had refused to receive the notice. Since the notice, sent through registered post with acknowledgement due, had not returned till then, the matter was put off for 4- 12-1995, It was directed that notice be repeated through bailiff and the same may be pasted in presence of two witnesses at the given address. On 4-12-1995, the notice sent through bailiff, returned with the endorsement of pasting but fresh notice was ordered to be issued through registered post. Accordingly, the notice was sent through post which also returned with the endorsement, made by the postman, that the daughter of the appellant had refused to accept it.
3. Thereafter, the notice of the rent case was published in daily 'Jasaratdated 6th December, 1995.
4. After publication, the matter came up on 13-12-1995 when the following order was passed: "Advocate for applicant is present. Opponent was served through notice by way of pasting in presence of two witnesses vide dated 3-12-1995 as per endorsement of the bailiff and she also served through publication in daily newspaper daily Jasarat, Karachi dated 6-12-1995, but she has failed to appear before the Court and deliberately avoiding to contest the matter.
5. Hence service upon the opponent is held good. Opponent is directed to file objection on application under Section 16(1) of S.R. P.O., 1979 and written statement on the next date of hearing without fail."
6. On 4-1-1995 the learned Rent Controller passed order to the following effect: "Applicant and his counsel is present, Opponent called absent since morning, till 1-00 P.M. No intimation received as yet. He has remained fail to file counter-affidavit and written-statement.
7. Hence the defence of the opponent is struck off. Matter will be proceeded ex parte against the opponent. Applicant is directed to file affidavit in ex parte proof on the next date of hearing."
8. On 29-1-1996 Mr. Syed Bashir Hussain Shah, Advocate filed Vakalatnama on behalf of the appellant before the learned Rent Controller and the matter was adjourned to 28-2-1996 with the following order: "The Court is vacant. Advocate for applicant is present. Advocate for opponent appears and files power on behalf of opponent. Put off to 28-2-1996 for F/proceedings."
9. On 28-2-1996, the learned counsel for the appellant filed application for adjournment for filing written-statement and the matter was adjourned to 17-3-1996 by the Link Judge as a final chance.
10. On 17-3-1996 application was again moved for adjournment by the advocate for the appellant, on which the following order was passed: "Mr. Raees Ahmed, Advocate is present for applicant. As per Reader, Advocate for the opponent was appeared before the Bench Clerk of 'Ind Senior Civil Judge (S), Kyc. And has filed an application for adjournment. As per Bench Clerk the advocate for the applicant was informed that the matter is put off to Link Judge. It is 2-00 p.m. None present from opponent side. Led. Counsel for the applicant has pointed out that vide order dated 4-1-1996 the opponent was ordered to proceed ex parte but counsel for the opponent on 28-2-1996 has filed adjournment application by supporting in fact that he had already made ex parte. I myself with the presented of learned counsel for applicant have gone through the order dated 4-2-1996 as well as diary sheet dated 28-2-1996 whereby the opponent was ex parte but in spite of that fact the opponent on 28-2-1996 filed adjournment application for filing W.S. This practice against the law however in view of above- stated fact I adjourned the matter 1-4-1996 of Hg. Of advocate for the opponent for adjournment application."
11. On 1-4-1996, the Court was still vacant and at the joint request, the case was adjourned to 7-4-1996 by the Link Judge. On 7-4-1996, application was made on behalf of the appellant for recalling order dated 4-1-1996 wherein it was stated that the appellant had no knowledge about the institution of the rent case and she had never received any notice/summons through bailiff or through post. It was alleged that the endorsements made by the bailiff were obtained through fraud by the respondent. According to the appellant, she came to know about the pendency of the case on 28- 1-1996 and she engaged an advocate who filed Vakalatnama on 29-1-1996. The Advocate too was unaware of order dated 4-1-1996 whereby the matter was ordered to proceed ex parte. For such reasons, the order dated 4-1-1996 was sought to be recalled. The application was resisted through counter-affidavit filed by the respondent, according to whom the appellant had avoided to receive the notice and the pasting had properly been done on the outer door of the appellant's residence.
12. According to the respondent, the learned Rent Controller had acted with restraint and had taken every reasonable step to ensure service of notice upon the appellant. It was further averred in the counter-affidavit, by the respondent, that in any event, the counsel for the appellant had filed Vakalatnama in the matter on 29-1-1996 and the appellant cannot claim ignorance about the earlier orders passed in the matter after such date. The various applications moved on behalf of the appellant were referred to in the counter-affidavit to plead that the application dated 7-4-1996 had belatedly been moved and was liable to be dismissed. The application was considered by the learned Rent Controller who dismissed the same on the ground that the appellant had failed to disclose the source of knowledge about the pendency of the proceedings whereupon her advocate had filed Vakalatnama on 29-1-1996, and such being treated the date of knowledge, the application was held to have been filed with unexplained delay of about three months.
13. Before me, the learned counsel for the appellant contended that publication had been ordered in the matter without due compliance with the requirements of Order V, Rules 17, 18, 19 and 20, C.P.C.
14. The service of notice, therefore, could not be treated to have validly been effected. It was further urged that there was no order by the learned Rent Controller to reflect satisfaction on her part about avoidance to receive notice by the appellant. Reference was made to the order dated 4-1- 1996 and it was urged that such order could not be termed sufficient compliance of the above- referred provisions. It was further contended that the limitation for filing application to set aside order for proceeding ex parte, is three years since the appellant had not been served with the notice. Reliance was placed on judgment in the case of Syed Ashfaq Ali Shah v. Syed Akhtar Ali Shah and others reported in 1993 M LD 889. In support of his first submission, the learned counsel relied upon the above-referred judgment in the case of Syed Ashfaq Ali Shah (supra) to contend that substituted service cannot be resorted to unless the requirements of Rules 17, 18, 19 and 20 of Order V, C.P.C. Were strictly complied with. It was pointed out to the learned counsel that the cited judgment related to proceedings in a civil suit and for the purpose of procedure in rent cases, section 19 does not require strict compliance with the provisions of the Code of Civil Procedure. The cited judgment, ex facie, is not applicable to the present case which is filed under the Ordinance and a Rent Controller, while following broader principles contained in the C.P.C., is not obliged to follow the same strictly.
15. As regards the contention of the learned counsel that the order dated 4-1-1996 did not reflect satisfaction of the learned Rent Controller regarding service, suffice to observe that a Rent Controller can proceed to make an ex parte order in terms of section 19(2) ed. The Ordinance. I have found from the record that on 13-12-1995, order was passed by the learned Rent Controller, which has been reproduced hereinabove, and such order amounts to sufficient compliance with the requirements of section 19(2) of the Ordinance. The learned counsel did not advert to the prohibition contained in section 19(2) of the Ordinance whereby a Rent Controller is debarred from rescinding the order to proceed ex parte. Be that as it may, it is pertinent to mention that on 29-1- 1996, Vakalatnama was filed by the counsel for the appellant and the appellant cannot plead ignorance about the earlier proceedings beyond that date. Moreover, the provisions of Order V, Rule 1, C.P.C. Do provide that no summons/notice has to be. Issued where a defendant/opponent enters appearance through a pleader. Although, it seems that the first application dated 28-2-1996 for adjournment, is indicative of the fact that the learned counsel for the appellant was not aware of the orders passed earlier and time was sought to file written-statement, such can, in my view, be termed nothing more than negligence on the part of the appellant and her counsel. When appearance is entered in a pending matter, it is reasonable to expect that the party and his/her counsel would apprise themselves of the proceedings that have taken place in the matter prior to such date. In any event, the reason which has weighed with the learned Rent Controller to the effect that the appellant had not disclosed the source of knowledge about the pendency or institution of the proceedings, whereupon Vakalatnama was filed by her counsel on 29-1-1996, has remained unexplained even before this Court. The failure to explain such aspect establishes that the appellant had knowledge of the proceedings earlier, since, evidently, no specific step(s) were taken in the proceedings as could have come to the knowledge of the appellant on 28-1-1996 when the appellant alleges to have acquired knowledge of the proceedings.
16. As to the period of limitation, the learned counsel relied on the same judgment in the case of Syed Ashfaq Ali Shah (supra) to contend that the period of limitation for filing application to set aside an order for proceeding ex parte is three years and not 30 days when the service is not effected upon a party. Such argument of the learned counsel is clearly misplaced. The provisions of Articles 164 and 181 of the Limitation Act, which were cited at bar, are as follows: "Article 164: By a defendant for an order to set aside a decree passed ex parte,Thirty days.The date of the decree or where the summons was not duly served when the applicant has knowledge of the decree.
17. Article 181: Application for which no period of limitation is provided elsewhere in this Schedule or by section 48 of Code of Civil Procedure, 1908.Three years.When the right to apply accrues."
18. The contention of the learned counsel that Article 181 shall apply when service is not effected is belied by the language of Article 164 itself. Even the reported Judgment, which was cited by the learned counsel in para. 13 holds to the contrary and is as follows: "13. As per Article 164 of the Limitation Act, the period of limitation for filing of an application for setting aside of ex parte decree is thirty days in cases where the summons is not duly served with effect from the date from the acquisition of the knowledge of the decree. The word "summons" used in Article 164 of the Limitation Act is quite conspicuous. It means summons for first appearance in the suit and it has different connotation vis-a-vis, its form and object than the notice issued to the defendant during the pendency of the suit for appearance, adjourned or postponed dates and period of limitation to challenge ex parte decrees passed in such like cases, therefore, is governed by the provisions of Article 181 of the Limitation Act which is a residuary Article and which provides three yearslimitation with effect from the date of accrual of cause of action which shall be the passing of the date of ex parte decree and not by Article 164 of the Act."
19. Thus, in either case, summons served or otherwise, the period of limitation for filing application to have an ex parte order set aside, is 30 days. The difference is only regarding the date of commencement of limitation. In cases, where service is duly effected, the time commences from the date of ex parte decree whereas in case the summons are found to have not duly been served, the time prescribed by Article 164 of the Limitation Act would start from the date of knowledge. The appellant, as has rightly been held by the learned Rent Controller, has failed to explain the delay in filing the application for recall of the order dated 4-1-1996. Therefore the application dated 7-4- 1996, in my view, was rightly dismissed by the learned Rent Controller.
20. For the foregoing reasons, this appeal fails and is dismissed in limine.