1. Present appellant has called in question the impugned orders dated 26-2-1998 passed by the learned VI-Senior Civil Judge and Rent Controller, Karachi South in Rent Case No.57 of 1997 and Execution Application No-3 of 1997 thereby dismissing applications under section 12(2) read with section 151, C.P.C. Filed by the aforenamed appellant for recalling orders dated 9-5-1997 and 24-9- 1997 passed in Rent Case No.57 of 1997 and Execution Application No.3 of 1997. Hence this appeal.
2. Brief facts of the case are that the appellant is tenant of the respondent since 1976 in respect of the premises comprising of godown (Shop No.3) situated in Commercial/Residential area of Noor Ellahi Road, Lea Market, Karachi. The Rent Case No.57 of 1997 was filed by the respondent against the appellant for his eviction from the said premises contending therein that she had let out the premises in litigation to the appellant at the rate of Rs.70 per month rent but the appellant committed default in payment of rent from 1-1-1983 despite repeated requests and demands including notice dated 4-1-1997 sent by her through her Advocate to the appellant to vacate the premises within one week from the date of receipt of the notice. She has further contended that the appellant has impaired the material utility and value of the premises by keeping it in bad condition and further that the respondent requires the premises in litigation in good faith for her use and occupation and that for the use and occupation of her children being suitable for Per requirement.
3. Notices sent in rent case to appellant were returned unserved with the report of the bailiff that the premises in litigation was locked. Ultimately appellant was served through the pasting of notice on the outer door of the premises and publication in daily newspaper Nawa-i-Waqt. There was no appearance of the appellant, therefore, the learned Rent Controller proceeded with the case ex parte in the absence of the appellant and received affidavit---in-evidence of the respondent.
4. Taking into consideration one-sided evidence of the respondent, the learned Rent Controller passed ejectment order dated 9-5-1997.
5. Respondent then filed Execution Application No.3 of 1997 for the execution of the order of ejectment dated 9-5-1997. Notice of the execution application was issued to the appellant but the same was returned unserved with the endorsement of the bailiff that the premises in litigation was locked.
6. Ultimately, the appellant was served through pasting of notice on the outer door of the premises on 28-8-1997 and publication of the notice in Daily Urdu newspaper Nawa-i-Waqt dated 4-9-1997.
7. There was no appearance of the appellant in execution application, consequently learned Rent Controller holding service good passed ex parte order against the appellant on. 24-9-1997 thereby allowing the execution application and to issue writ of possession of the premises in favour of the respondent. Consequent upon the issuance of writ of possession and under the orders of the learned Rent Controller dated 2-10-1997, locks of the closed premises in litigation were broken on the very same day viz. 2-10-1997 in presence of the son of the respondent and one Mairajuddin and writ possession was executed whereby the possession was delivered to the respondent.
8. On 8-11-1997 appellant submitted separate applications under section 12(2) read with section 151, 'C.P.C. Dated 6-11-1997 in Rent Case No.57 of 1997 and Execution Application No.3 of 1997 with a prayer that said orders dated 9-5-1997 and 24-9-1997 allowing ejecmtent application and execution application respectively be set aside as the same were procured by respondent through fraud and misrepresentation of facts contending therein that the appellant had acquired the premises on rent against the payment of Rs.100,000 as Pagree (goodwill) and that he was depositing the rent in the Court of learned XI-Senior Civil Judge/Rent Controller, South Karachi in M.R.C. No.851 of 1983 since 1-1-1983 and prior to that he had been paying the rent to the respondent.
9. After hearing learned counsel for the patties, learned Rent Controller dismissed both the applications of the appellant with separate orders dated 26-2-1998.
10. I have heard the learned counsel for the parties and have gone through the material available on record with their assistance.
11. Mr. Riaz Kadir Brohi, Advocate for the appellant, has firstly drawn my attention on order dated 9-5- 1997 which is available at page 37 of the R & P of Rent Case No.57 of 1997 and has argued that the Rent Case No.57 of 1997 was pending before learned VI-Senior Civil Judge/Rent Controller Karachi, South but order dated 9-5-1997 has been passed by the II-Senior Civil Judge/Rent Controller, Karachi, South (Mr. Altaf Ahmed Shaikh) and according to him his order has been passed without any jurisdiction vested in learned II-Senior Civil Judge and Rent Controller, Karachi South and nowhere it is mentioned that the learned II-Senior Civil Judge and Rent Controller Karachi, South has passed order dated 9-5-1997 as a link judge. According to him the order shows that it has been passed by learned II-Senior Civil Judge and Rent Controller, Karachi South. In this regard he has drawn my attention on case diary dated 26-1-1997 wherein it is mentioned that the Court is lying vacant and so also in order sheet dated 28-2-1998 it is mentioned that Court is lying vacant.
12. According to Mr. Brohi order dated 9-5-1997 has been passed by the learned II-Senior Civil Judge and Rent Controller, Karachi South without jurisdiction. He has further drawn my attention on the caption of the Rent Case No.57 of 1997 contending that the address of the appellant has been shown "C/o Shop No.3" whereas the present appellant is in possession of godown and thus, the service cannot be held good in these circumstances. He has further drawn my attention on publication wherein it has been mentioned, "Mst. Noor Begum who Faqir Muhammad applicant against Abdul Karim son of Abdul Latif C/o Shop No.3, Noor Begum Manzil, Noor Elahi Road, Lea Market, Karachi". Learned counsel has also drawn my attention on the Bailiff's report at page 37 of the R&P which is incomplete with regard to service and Shop No.3 is mentioned, nowhere godown is mentioned. Mr. Brohi has also drawn my attention on application under Order V, rule 20, C.P.C. At page 15 and has submitted that the affidavit sworn in by Noor Begum in support of her application under Order V, rule 20, C.P.C. Is not proper as the same has been sworn in before S.M. Kazmi, Oath Commissioner, Karachi and he had further submitted that the publication has been held in Nawa- i-Waqt and according to him at page 15 of the R&P on application under Order V, rule 20, C.P.C. The order has been passed by the learned Rent Controller for publication in daily newspaper Jang and so also by way of pasting on outer door of the premises in presence of two witnesses. Mr. Brohi has contended that in these circumstances, the service cannot be said to have held good. He has also drawn my attention on the application under section 12(2) read with section 151, C.P.C. And the contents of the affidavit filed by the appellant and he has also drawn my attention on the order passed by the learned VI-Senior Civil Judge and Rent Controller, Karachi South on application under section 12(2) read with section 151, C.P.C. Finally he has submitted that it is a fit case for remand to the Court having jurisdiction as the order dated 9-5-1997 has been passed by learned II-Senior Civil Judge and Rent Controller, Karachi South who had no jurisdiction to pass the order.
13. Mr. Brohi has also placed reliance on PLD 1982 SC 88 (Abdul Ghaffar and others v. Mst. Mumtaz) PLD 1983 SC 155 (Messrs Bambino Ltd. v. Messrs Selmor International Ltd. And another): 1984 CLC 3102 (Dr. Abdullah Ghangro v. Mst. Tahira Begum) and 1992 CLC 1146 (Shah Nawaz v. Shaikh Sajjad Hussain and 2 others).
14. On the other hand Mr. Abdul Wahab, Advocate for the respondent, has controverted the contentions raised by Mr. Riaz Kadir Brohi, Advocate for the appellant, but could not rebut with any reasoning, He could not answer on the query as to why order dated 9-5-1997 has been passed by the learned II-Senior Civil Judge and Rent Controller, Karachi South having no jurisdiction.
15. Admittedly the "Rent Case No.57 of 1997 is triable by the learned VI-Senior Civil Judge and Rent Controller, Karachi South and the learned II-Senior Civil Judge and Rent Controller' Karachi South has no jurisdiction over the matter. I have very carefully examined the order dated E 9-5-1997 passed by the learned II-Senior Civil Judge and Rent Controller, Karachi South on 9-5-1997 and nowhere it is evident from the order that the same has been passed by him as a link Judge and on the contrary the learned Judge has passed the order dated 9-5-1997 as learned II-Senior Civil Judge and Rent Controller, Karachi South having no jurisdiction over the matter. I have also seen the address of appellant mentioned in the Rent Case No.57 of 1997 wherein it has been mentioned Abdul Karim s/o Abdul Latif c/o Shop No.3, Noor Begum Manzil, Noor Elahi Road, Lea Market, Karachi but the fact of the matter is that Abdul Karim is in possession of godown and nowhere name of godown is mentioned. Even in Daily Nawa-I-Waqt name of godown is not mentioned and so also the order has been passed by the learned Rent Controller of publication in Daily Jang and the service is not said to have been held good in the light of aforementioned facts and circumstance The learned VI-Senior Civil Judge and Rent Controller Karachi South has also not taken into consideration the contents of the application under section 12(2), C.P.C. I am of the considered view that it is a fit case for remand. Accordingly the impugned orders dated 26-2-1998 passed by the learned VI-Senior Civil Judge and Rent Controller, Karachi South in Rent Case No.57 of 1997 and in Execution Application No.3 of 1997, dismissing the applications vide orders dated 9-5-1997 and 24- 9-1997 passed in Rent Case No. 57 of 1997 and Execution Application No.3 of 1997 are set aside and the case is remanded to the Court of VI-Senior Civil Judge and Rent Controller, Karachi Sough with directions to give full opportunities to the parties and after hearing them, decide the matter in accordance with the law. The parties are directed to appear before the learned VI-Senior Civil Judge and Rent Controller, Karachi South on 25-4-2001. Office is directed to send R&P of the case as soon as possible.
16. F.R.A. 119 of 1998 stands allowed.
17. H.B.T./A-147/L