1. The present appeal has been filed against the order, dated 6-11-1997 passed by the Additional Controller of Rent Clifton Cantonment, Karachi in Rent Case No,157 of 1996 filed by the present respondent/landlady.
2. The brief facts are that the premises being Shop No,4 in House No,296, Gali No,14/15, Punjab Colony, Gizri Road, Karachi was rented out to one late Abu Bakar vide tenancy agreement, dated 7-3-1982.
3. In the first round of litigation the respondent/landlady filed Rent Case No,27 of 1983 before the Rent Controller Clifton Cantonment, Karachi on the grounds of expiry of tenancy agreement and default in payment of rent which was dismissed vide order, dated 18-4-1987 against which she filed F.R.A.
4. No,639 of 1987 before this Court and vide order, dated 22-4-1990 the order of the Rent Controller was set aside and the case was remanded back to the Rent Controller which was again dismissed vide order, dated 23-4-1991. In the meantime tenant Abu Bakar died and the respondent/landlady again filed F.R.A. No,434 of 1991 against the legal representatives of the said tenant, however, the said first rent appeal was dismissed vide order, dated 26-4-1992.
5. Again the respondent/landlady issued notices, dated 8-8-1996 to the legal representatives of the said tenant calling upon them to vacate the shop on the ground that they have made addition/alteration in the said shop without consent of the landlady and against the Cantonment Rules, and subletting and non-payment of K.B.S.C. bills. The allegations made in the notices were denied vide their reply, dated 22-8-1996. It is claimed by the present appellant widow of Abu Bakar that since the death of Abu Bakar she has been running the said shop with the assistance of her son Jumma Ibrahim and that the rent is being regularly deposited in the Trial Court and the respondent/landlady is withdrawing the same. According to the appellant/tenant she came to know about the pending proceedings in respect of Rent Case No,157 of 1996 through some well- wishers on 24-11-1996 and filed the present appeal on 2-12-1997. Pre-admission notice of this appeal was issued to the respondent who filed objections and the appellant/tenant filed rejoinder to the said objections.
6. The contention of the learned counsel is that the rent application was filed in the name of a dead person and as such was not maintainable. He further argued that even if it is accepted that the application was filed against Muhammad Ramzan son of deceased Abu Bakar, the respondent/landlady knowing very well that there were other legal heirs also failed to implead all of them and in the absence of all the legal heirs the rent application was not maintainable. Next it was argued that the appellant/tenant's legal representative were never served and as such ex parte order was obtained by the respondent/landlady by misrepresentation. It was further argued that an application under Order 5, Rule 20 for substituted service was filed on 20-9-1997 and the orders were passed on the same day without any notice to the other side and the service was held good by the learned Rent Controller on 7-10-1997 without complying with the ingredients of Rule 20 as the notices were not fixed on the Court Notice Board and he relied on the case of Mst. Atiya Masood v. Mrs. Mussarat Musaver and others PLD 1993 Kar. 676.
7. As regards to the first contention of the learned counsel that the rent application was filed against a dead person the same is not tenable as the application was filed against one of the legal representatives i,e, Muhammad Ramzan son of deceased Abu Bakar. However, the contention of the learned counsel that all the legal heirs were not impleaded by the respondent/landlady and the ingredients of Order V, Rule 20 were not complied has force.
8. The bailiff's report indicates that at the time when he went to serve the notice on the address of the disputed shop in the Rent Application the wife of deceased Abu Bakar refused to accept the said notice, this report should have put the respondent/landlady on notice that the widow of the deceased Abu Bakar is also one of the legal heirs but the respondent/landlady did not take any steps to implead her which proves the proceedings under shadow. In the case of Fazal Ahmed v.
9. Ramzan Bibi 1984 CLC 2196, wherein after the death of the tenant ejectment petition was filed against son of the deceased tenant without making widow a party it was held that the "tenant cannot be ejected from the premises on account of ejectment order passed against her son. The next contention of the counsel is that the ingredients of Order 5, Rule 20 were not complied with as the notices were not affixed on the Court Notice Board. He relied on the two judgments of this Court.
10. The first case relied on is that of Mst. Aliya Masood v. Mrs. Mussarat Musaver and others PLD 1993 Kar. 676 wherein order were passed in the suit that the applicant be served with publication without reference to pasting of summon at the Court Notice Board and last known address of the applicant, whereas in execution proceedings orders were passed that notice should appear in an approved daily and a copy be affixed at the disputed premises" i,e, suit property which was in possession of the tenant. The service of notice appeared in the newspaper but summons were not affixed on the Court Notice Board nor on the last known address of the defendant and as such it was held that there was a clear violation of express provisions contained in Order 5, Rule 20, C.P.C. requiring affixation of summons on the Court Notice Board and also on the last known address of the defendant and ex parte decree was set aside in provisional jurisdiction.
11. The second case relied on by the learned counsel is that of Fateh Gul v. M. Anwarul Huda and another 1987 CLC 635 (Kar.), wherein an application under Order 5, Rule 20, C.P.C. was filed for substituted service through affixation on the tenement or through publication in newspaper and directions were issued accordingly. Notice was published in newspaper but the same was not affixed on the tenement as ordered by the Controller and on some conspicuous place in the Court house. It was held that "provisions of Order 5, Rule 20 are mandatory and the failure to comply with any requirement thereof nullifies the whole proceedings and the ex parte order was set aside". It was further observed that it is an elementary principle that if mandatory condition for the exercise of jurisdiction by a Court, Tribunal or Authority is not fulfilled, then the entire proceedings which follow become illegal and suffer for want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffers from illegality and is without jurisdiction.
12. There is no cavil to the proposition as held in the said judgments.
13. But the said cases are not applicable to the present case as the only prayer made in the application for substituted service was that service may be effected through publication in daily Nawai Waqt and the application is not even titled as to under what provision of law it was made.
14. In the instant case, although it is clear that the present appellant refused to accept the service and, thereafter, an employee of the appellant also refused since and twice pasting was effected by the bailiff of the Court from which it can be presumed that the present appellant had enough information that certain proceedings were pending. But then the said proceedings were only against one of the legal representatives. According to the counsel for the appellant, the respondent/landlady was well-aware that some of the legal heirs were running the disputed shop but no efforts were made to serve the said respondent/legal representatives. On the other hand, the counsel for the respondent/landlady submitted that several attempts .were made to serve the present appellant as is evident from the bailiff's report but they purposely avoided to be served.
15. Both the parties avoided/neglected to correct the course of litigation.
16. Considering the circumstances of the case, conduct of the parties and the case-law cited before me, in my opinion, the best outcome for all the parties will be that appeal is allowed, the impugned order passed by the learned Rent Controller is set aside and the case is remanded back to the Rent Controller with the direction that the respondent/landlady be directed to implead all the legal heirs the list of which will be submitted by the present appellant/tenant and, thereafter, proceed according to law.
17. Order accordingly.