This is a First Rent Appeal filed under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance, 1979) against the two orders dated 5-10-1998 whereby appellant's application for setting aside ex pane order was dismissed and against ex pane judgment dated 12-11-1998 passed by the learned IIIrd Rent Controller, Karachi East in Rent Case No,87 of 1998.
2. On 18-2-1998, the respondent/landlord filed an application under section 15 of the Ordinance, 1979 in respect of a shop situated on Plot No,91, BYJ Market, Jamshed Road, Karachi (hereinafter referred to as the shop in question) for eviction of the appellant/tenant on the grounds of default and personal bona fide use. Notices were issued thrice to the appellant/tenant which were returned unserved on the ground that the address given in the notice is not traceable. On 5-5-1998, the counsel for respondent/landlord filed a statement before the Rent Controller stating therein that the notice was also issued through registered post A.D. And filed copies of statement dated 27-2-1999 alongwith the order of VIIIth Civil Judge, Karachi East in Suit No,1019 of 1997 (Abdul Rasheed Abbasi v. Allauddin). On 21-5-1998, the learned Rent Controller while keeping in view the contents of the aforesaid statement came to the conclusion that the appellant/tenant is in the knowledge of the rent case and, therefore, held the service of notice good and directed to proceed ex parte with the case. Meanwhile, the appellant filed an application for setting aside the order dated 21-5-1998 which was dismissed vide order dated 5-10-1998 and subsequently ex parte judgment for eviction of the appellant/tenant was passed on 12-11-1998. These are the two orders which have been impugned in the instant appeal.
3. I have heard Mr. Badrul Alam, Advocate for the appellant and Mr. Muhammad Zafar, Advocate for the respondent who has appeared on pre-admission notice. It is contended by Mr. Badrul Alam that the service of notice was held good by the learned Rent Controller on the sole ground that during proceedings of a suit,' the appellant/tenant came to know about the rent proceedings and that it was sufficient for upholding the service of notice as good. It was strenuously argued that simple knowledge of pendency of a rent case would not be sufficient and that the Court of Rent Controller is required to be satisfied on the point that the notice alongwith copy of eviction application was duly served upon the appellant/tenant in order to enable him to file written reply as provided under section 19(2) of the Ordinance, 1979. He has placed reliance on the following cases:-
(i) Amin Khan v. University of Sindh PLD 1968 Kar. 899;
(ii) Haji Karamat Hussain v. Naik Khan Muhammad 1986 CLC 6;
(iii) Gulab Chand v. Shankar Lal and others ILR 35 All 163;
(iv) Sudhansu Bhattacharyyo v. Chairman, Patna City Municipality AIR 1932 Pat. 150;
(v) Kassim Ebrahim Saleji v. Johurmull Khemka AIR 1916 Cal. 181(2) = ILR 43 Cal. 437;
(vi) Narendra Kishore Das v. Banamali Sahu Dibakar Sahu Firm AIR 1951 Orissa 312;
(vii) Jagdish Prasad Khakalia v. Jesraj Talakchand Lalchand AIR 1954 Assam 223;
(viii) Radha Ballav Thakur v. Dayal Chand Bose AIR 1962 Orissa 15.
4. From the respondent/landlord's side, it was argued by Mr. Muhammad Zafar that the fact that the appellant/tenant was in knowledge of the pendency of rent case coupled with the issuance of notice through registered post were sufficient to compel the learned Rent Controller to hold service of notice as good. In support, he has referred to a statement of the counsel for the landlord/respondent filed in the Court of Rent Controller through which the original receipt of the postal authority was placed on record. He has placed reliance on the following cases:--
(i) M.A. Latif Faruqui v. National Bank of Pakistan PLD 1981 Kar. 645;
(ii) Dhanjishaw Bahramji Ghadialy and another v. Abdul Latif PLD 1983 Kar. 121;
(iii) Zulfiqar Ali v. Lal Din and another 1974 SCM R 162;
(iv) Khair Muhammad v. Akhtar Hussain 1983 CLC 302.
5. It is an admitted position that the appellant/tenant filed a suit for permanent injunction bearing No, 1019 of 1997 which was disposed of on a statement filed by the respondent/landlord's counsel that he has already filed a Rent Case No,87 of 1998 before IIIrd Rent Controller at Karachi and, therefore, he does not intend to dispossess the appellant/tenant unlawfully from the tenement in question. It is this statement and the order of learned VIIIth Civil Judge, Karachi East dated 27-2- 1998 upon which the learned Rent Controller came to the conclusion that the appellant/tenant was in full knowledge of the rent proceedings. It is to be seen that the notice issued to the appellant/tenant for his personal service could not be served and all the three notices were returned by different bailiffs on the ground that the address mentioned in notices was not traceable. No attempt was made to get the appellant/tenant served through substitute service. In the case of Muhammad Ibrahim v. Mst. Mehmooda 1987 CLC 1994, it was held (at page 1998) that "the due service of summons comprises of, apart from tendering a copy of the notice, reading and explaining the contents thereof for the cognizance of a party as to the factum of pending litigation in the Court in which it is pending and the date to which the said litigation is posted." It was further held as follows:-- "The direct knowledge of the defendant about the pending litigation is irrelevant for the purpose of determining the sufficiency of service. The service may be held to be sufficient only on the proof of delivery of or refusal to receive the summons. A vague knowledge that a decree had been passed by some Court is not enough and it must be found that the defendant/petitioner had knowledge that a particular decree had been passed against him in a particular Court in favour of a particular person and for a particular relief/sum...."
6. Perusal of section 19 and its subsections (1) and (2) indicates that it is incumbent upon the Rent Controller to have found that the notice alongwith copy of main application was duly served upon the opponent as only thereafter a tenant is required to submit his written reply within a period of 15 days thereof. In such circumstances, a notice to be issued must accompany a copy of eviction petition or any other application filed by the applicant. No such eviction application was served upon the appellant/tenant enabling him to file his written reply within a period of 15 days from the date of service of notice. It was held in the case of Amin Khan (supra) by this Court while making reference to the case of Kassim Ibrahim Saleji (supra) and Sudhansu Bhattacharyyo (supra) that the knowledge about the institution of a suit against a party filed at Hyderabad would neither dispense with proper service of summons upon the defendants nor justify the making of ex parte preliminary decree against such party. The same view was held by a Single Judge of Balochistan High Court in the case of Karamat Hussain (supra) that the knowledge of institution of the suit is not sufficient to dispense with the proper service of the summons as envisaged by the rules of the C.P.C. In such circumstances, simple knowledge of the appellant/tenant that a rent case has been filed against him without having a copy of the main petition duly served upon him was not sufficient material to non-suit such party and to proceed ex parte. In case a Rent Controller comes to the conclusion that the other party is avoiding to receive notice or is unable to be served in ordinary course, he should adopt the procedure as provided in Order V, Rule 20, C.P.C. As there appears no bar to follow the same. In the instant case, it was not done.
7. On the point of service of notice through registered post, I would like to observe that the postal receipt filed before the Rent Controller indicates "Abdul Rasheed, Jamshed Road, Karachi". Except this postal receipt which was issued from the post office Katcheri Road, Karachi, there is no other material to justify service of the notice through registered post. It is not clear whether the envelope despatched to the appellant/tenant contained his full and complete address and that a copy of eviction application was also enclosed. Even his full name does not appear on the postal receipt.
Benefit of any doubt accruing from such circumstances must go to the party which is being non- suited on the ground of service of notice. In the case of Khair Muhammad (supra), it was held by a learned Single Judge of this Court, Saiduzzaman Siddiqui, J. (as his Lordship then was) as follows:-- ....After careful examination of the above-cited cases, I am of the view that where it is shown in evidence that an envelope containing a letter was posted with correct name and address of the addressees and was not received back a presumption arises under the law that such letter has been delivered to the addressee. Similarly, if a notice with correct description of addressee is posted and is returned back with the endorsement of 'refused' by the postal authority, the presumption of service of notice on the addressee will arise in the circumstances. However, the presumption of service in both cases shall stand rebutted if the addressee appears in Court and makes a statement on oath that he did not receive the letter alleged to have been sent to him or that of proving service of letter shall continue to remain on the person who relies on the service of such letter. This burden can be discharged by calling postman concerned who delivered the letter or who made the endorsement of 'refusal' ... ..."
8. As a result of the above discussion, I am of the considered view that the learned Rent Controller acted in haste while declaring the appellant/tenant ex parte and that the same is liable to be set aside. Accordingly, this appeal is accepted and the impugned orders are set aside with no order as to costs, with the direction to the learned Rent Controller to expeditiously proceed with the case and to pass final order within four months. At this stage, learned counsel for the respondent/landlord has supplied copy of the main application in Rent Case No,87 of 1998 to Mr. Badrul Alam who waives notice on behalf of appellant/tenant. He is required to file his written reply on or before 20-5-1999 when both the parties are directed to appear before the learned Rent Controller. Accordingly, C.M.A. No,33 of 1999 has become infructuous and stands disposed of.