1. ' This First Rent Appeal has been filed by the appellant against the order, dated 30-8-1997 passed by the Controller of Rents, Clifton Cantonment, Karachi, whereby the Rent Case No,52 of 1997, filed by the respondent No,1 herein against the appellant, was allowed and the appellant was directed to vacate the rented premises and hand over its vacant physical possession to the respondent No,1 within thirty days.
2. ' The brief facts leading to the filing of the present appeal are that the respondent No,1 is the landlord/owner of Flat No,3, 2nd Floor, constructed on Plot No,32-C, Badar Commercial Street No,VI, Saba Avenue, Phase V Extension, Defence Housing Authority Karachi and, according to him, the appellant is his tenant in respect of the said Flat at the rate of Rs,4,000 per month. A tenancy agreement, dated 1-9-1994 was executed between the parties. According to the respondent No,1, the appellant/tenant committed wilful default in payment of rent for the period from December, 1996 till the filing of the rent case and, as such, he is liable to eviction from the rented premises.
3. Therefore, the respondent No,1 filed Rent Case No,52 of 1997 on the ground of default in payment of rent.
4. ' Notices were issued to the appellant through bailiff as well as by Registered Post/A.D. For 15-5-1997 but none appeared on behalf of the appellant and notice was served through substituted service.
5. ' The respondent No,1 on 25-7-1997 filed affidavit in ex parte proof on the basis of which the Rent Case No,52 of 1997 was allowed on 30-8-1997.
6. ' The contention of the learned counsel for the appellant is that no notice of the rent case was served on him although service could be effected on him either on his residential address or on office address. His next contention was that tenancy agreement was executed between him and respondent No,2 on 1-11-1997 and 36 months advance rent was paid and as such no rent case could be filed before the expiry of the said period and that the respondents have played fraud by filing the case.
7. ' The counsel for the respondent contended that the appeal is time barred and same be dismissed.
8. ' The present appeal was filed on 17-11-1997 while the impugned order is, dated 30-8-1997 C.M.A.
9. No,910 of 1997 has been filed under section 5 of Limitation Act for condonation of delay in filing appeal on the ground that the appellant was never served with the notice of the rent case. Before any order is passed on the application under section 5 of Limitation Act. The brief facts, leading to the ex parte order passed in the rent case are that the case was filed on 5-5-1997 before the learned Rent Controller, Cantonment, Karachi and on the same date order was passed for issuance of notice to the opponent through Bailiff as well as by registered post A/D and case was fixed for 15-5-1997. Again on the said date none was present for the appellant/tenant and order was passed again for issuance of notice through Bailiff as well as by registered post A/D and Bailiff was directed to paste the notices and the case was adjourned to 27-5-1997. On the said date the Bailiff's Report was that the notices could not be pasted and as such fresh notices were issued with direction for pasting. The diary, dated 5-6-1997 does not indicate whether the notice was served or not or if pasted by the Bailiff and he was examined accordingly but the said diary is as under:-- ' "The learned counsel for applicant is present and filed statement. No one attended from opponent side. The case is adjourned to 14-6-1997 for further action."
10. ' On 14-6-1997 order was passed for service on opponent through publication which appeared in the Daily "The News", dated 21-6-1997 and "Nawa-i-Waqt" and the case was adjourned from 26-6- 1997 to 7-7-1997 for producing property documents. The diary, dated 7-7-1997 indicates that the copies of N.I.C. Of one Raheel Malik son of Asmatullah Malik was filed and some transfer letter of the property were also filed but as the said documents were not related to the case the same were returned by the Court for production of ex parte proof and N.I.C. Of the applicant. The diary dated 26-7-1997 indicates that the counsel for the respondent/landlord filed tenancy agreement and ex parte proof. The tenancy agreement filed before the Court was in the name of Asmatullah Malik but the letter from M.E.O. Karachi produced on their behalf was in the name of his son and not in his own name and the case was adjourned to 9-84997 for filing of Power of Attorney. The diary for 26- 7-1997 indicates that the N.I.C. Of Raheel Malik and copy of M.E.O. Letter which was filed in Court was returned to the party. It is pertinent to note that no Power of Attorney was filed as ordered on 26-7- 1997. The diary of 9-8-1997 indicates that although the rent case was filed by Asmatullah Malik but the property does not stand in his name but in the name of his son Haseebullah Malik and that the attorney "flatly refused to file the same and requested to dispose of the case" and finally the impugned order, dated 30-8-1997 was passed.
11. ' I have checked the process issued by the Court. The first notice issued is, dated 6-5-1997 for appearance on 15-5-1997 and the Bailiff' report is:-- {{URDU TEXT}} ' Again notice, dated 25-5-1997 was issued for appearance on 27-5-1997.
12. ' The third notice issued is, dated 30-5-1997 for appearance on 5-6-1997 whereon the Bailiff's report is:-- {{URDU TEXT}} ' and then there is a letter addressed to editor Daily "Jang" "Nawa-i-Waqt" "Dawn", "The News" for publication of notices which duly appeared on 21-5-1997. There are two postal registry receipts also one is, dated 7--5-1997 and on the other date is not legible.
13. ' Now coming to the documents, the lease agreement which has been filed by the applicant/landlord as Annexure 'A' to the application is, dated 1-9-1994 executed between Asmatullah Malik and Mr. Muhamamd Asim Iqbal Qureshi in respect of Flat No,3 situated on 2nd Floor of the building constructed on Plot No,32-C, Badar Commercial, Phase-V. As such at the relevant time as per the documents on record the tenant Muhammad Asim Qureshi and not the present appellant. The property documents further reveal that the property was transferred by D.H.A. In the name of Haseebullah Malik and not Asmatullah Malik who filed the appeal and so also the affidavit in ex parte proof. There is no Power of Attorney on the record to indicate that the said A person was authroised to file the application as well as ex parte proof and the case diary of the 'rent case is very clear that the applicant refused to file the Power of Attorney.
14. ' On the other hand, the appellant alongwith his appeal has filed a copy of agreement of tenancy indicating that the same was executed on 1-11-1997 between him and Haseebullah Malik and further that the sum of Rs,1,44,000 was paid as advance rent for 36 months effective from 1-11-1997 and further sum of Rs,24,000 was paid as deposit. Taking notice of the said document and the very fact that rent for 36 months was paid on 1-11-1997 the case for default B in payment of rent could not be filed.
15. ' Although I am aware of the fact that section 5 of Limitation Act is not applicable to rent cases but since record of the case clearly established that the respondent/landlord had no power to file rent case and the same was not c maintainable, the entire proceedings are vitiated. In the circumstances, the appeal is admitted and allowed and the case is remanded back to the Rent Controller to proceed afresh after giving due notice to the parties and decide on merit.