' NASIR ASLAM ZAHID, J.---This appeal by leave is directed against the judgment, dated 28-11-1989 of the Sindh High Court passed in F.R.A. No,905 of 1987. Mr. Jan Muhammad Dawood, Advocate Supreme Court for the appellants was present but, as he was not fully well, this appeal was argued on behalf of the appellant by Mr. A. Aziz Khan, Advocate-on-Record respondent has remained ex parte. No one has appeared on his behalf.
2. The premises involved in this dispute is a godown in Chakiwara, Karachi, owned by the respondent. Haji Hussain Haji Dawood, the predecessor-in-interest of the appellants, was the tenant in respect of the godown at a monthly rent of Rs,125 (hereinafter referred to as "the tenant").
On 4-9-1979, the respondent filed an ejectment application against the tenant under section 13 of the Sindh Rent Restriction Ordinance, 1959, on the ground of default in payment of rent and for subletting a portion of the godown. The address of the tenant, in the ejectment application was given as the godown address. The tenant was not being served and as such after various attempts for service through the ordinary mode, application for substituted service filed on behalf of the respondent was granted. Service by publication on the tenant was held good by order dated 16-1- 1986 of the Rent Controller and thereafter an ex parte order of ejectment was passed by the Rent Controller on 17-5-1986. In execution the respondent obtained possession of the godown on 24-8- 1987.
' Appellants are the widow and children of the tenant. According to the appellants, their employee visited the godown premises on 28-7-1987 when he came to know that possession of the godown had been taken over by the respondent through bailiff and police on 24-8-1987. The appellants contacted their advocate who made enquiries and after inspection of record and obtaining certified copies filed first Rent Appeal in the High Court on 30-9-1987. This appeal was dismissed by the impugned judgment, dated 28-11-1989 of the learned Single Judge of the High Court on the ground that the appeal was barred by time.
3. The case of the appellants is that the tenant died on 12-9-1980 i.e, after about one year of the filing of the ejectment application. According to the appellants, service of notice of rent case had not been effected on the tenant before he died on 12-9-1980 and thereafter proceedings continued against the said tenant which were a nullity. It was pointed out by Mr. A. Aziz Khan that, during his lifetime, some correspondence was exchanged between the tenant and the Advocate of the respondent in which, on behalf of the respondent the business address of the tenant i.e, 27/11, South Napier Road, New Challi, Karachi, was used but, with mala fide intention, in the ejectment application, the address of the tenant was given as the godown address, which would most of the time remain locked as it was a godown.
' It was further submitted on behalf of the appellant that, during the lifetime of the tenant there was some dispute amongst the respondent and his brother and when rent was sent by the deceased tenant to the Advocates of the landlord, the following reply dated 26-12-1978 was received from the Advocates:-- "Dated: 26th December, 1978.
' "M/s. Haji Hussain Haji Dawood, Merchants and Commission Agents, 27/11, South Napier Road, New Challi, Karachi No,2.
' Dear Sir, ' Your letter, dated 21-12-1978 has been received by us alongwith a cheque of Rs,4,500 ' We are returning the said cheque since the rent has not been tendered within time. Anyhow you may deposit the said amount in Court in the account of Yousuf and Abdul Sattar Yaqoob within fifteen days from the receipt hereof and continue to deposit future rent also in Court in order to save yourself from the penalty of default. The concession is given to you on account of good relations between you and our client as last chance.
' You are further directed to remove the sub-tenant from the premises in dispute as mentioned by us in our previous notice in your interest. Your faithfully, for GHAFOOR AND SADIQ Advocates c.c. To Mr. M.Y. Kherati for information."
' As advised by the advocates of the landlord, the deceased tenant filed a Miscellaneous Rent Application and deposited monthly rent in the said Miscellaneous Rent Case and, after the death of the tenant, the appellants continued to deposit the rent regularly up to September, 1987, the last receipt being dated 6-7-1987 covering the rent in advance for the months of July to September, 1987.
' It is the case of the appellants that neither the tenant was aware of the filing of the ejectment case during his lifetime nor the appellants were aware of the pendency of the aforesaid proceedings till they came to know on 27-8-1987 about possession of the premises having been taken over by the respondent through Court on 24-8-1987. Appellants were not made parties in the proceedings.
4. In support of the present appeal it has been argued that after the death of the deceased tenant on 12-9-1980, the proceedings were without jurisdiction and a nullity including the ejectment order and the Orders passed in execution in which possession was taken over by the respondent. It was submitted that no attempt was made by the respondent to join appellants as legal heirs of the deceased tenant or anyone of them as opponents in the ejectment applications. According to Mr. A. Aziz Khan, the proceedings against the dead person being a nullity, question of limitation would not come in the way of the appellants and the High Court erred in dismissing the appeal of the appellants as time-barred.
5. In this case, there is no denial of the averments on behalf of the appellants that the tenant died on 12-9-1980. It has been noted that the ejectment applications against the tenant had been filed on 4-9-1979 and till his death service had not been effected on him. The original file of the Rent Controller is available and it shows that one application under Order 5, Rule 20, C.P.C. Was filed on 27-2-1980. Second application under the same provision was filed on 11-5-1980 on which application also fresh notices were directed to be issued in the normal course. Then there is a third application dated 12-12-1982, which was granted by order, dated 31-12-1982. Thereafter notices against the tenant were published in the newspapers and service held good on 16-1-1986. Affidavit in ex parte proof was filed by the respondent and then ex parte ejectment order of ejectment was passed by the Rent Controller on 17-5-1986.
All the notices sent through bailiff and registered post as well as the notices published in the newspapers show that they were issued in the name of the deceased tenant and the .Address of the tenant was given as the godown address whereas the correspondence exchanged between the parties shows that the Advocates of the respondent had written to the tenant on his business address. It is apparently for this reason that the notices remained unserved as most of the time the godown would remain locked.
6. Mr. Abdul Aziz Khan is correct in his submission that after the death of the tenant on 12-9-1980, further proceedings against him including the order of ejectment were a nullity. Neither he was served during his lifetime nor the appellants, his legal representatives, were served as they had not been impleaded as parties and no notice had been issued to them. They only question which requires determination in this Appeal is whether in these circumstances the appeal filed by the appellants was rightly dismissed as time-barred by the High Court.
7. Under section 21 of the Sindh Rented Premises Ordinance, 1979, an appeal can be preferred against the order of the Rent Controller to the High Court "within 30 days of such order". In this case, the date of the ejectment order is 17-5-1986 whereas the First Rent Appeal was filed by the appellants in the High Court on 30-9-1987. If the date of the ejectment order in this case is taken as the date from which the period of limitation of 30 days for filing an appeal to the High Court commences, the appeal before the High Court was obviously barred by time. Section 5 of the Limitation Act is not applicable to appeals filed under the Sindh Rented Premises Ordinance, 1979.
Reference can be made to Abdul Ghaffar v. Mumtaz (PLD 1982 SC 88) and Ali Muhammad v. Fazal Hussain (1983 SCM R 1239).
' On the other hand, if in this case, date of knowledge of the appellants about the passing of the ejectment order is taken as the starting point of commencement of the limitation period of 30 days, the appeal in the High Court preferred by the appellants was in time after excluding the time taken for obtaining certified copy of the ejectment order.
8. In this case, the tenant was not served with the notice of the ejectment case and he died on 12- 9-1980. Even after his death, notices continued to be sent in his name at the godown address.
Appellants, legal representatives of the deceased tenant, were neither impleaded as opponents in the ejectment case after the tenant's death nor any notice was issued to them. Publication in the newspaper of the notices of the rent case much after tenant's death was in the name of the deceased tenant. In these circumstances, proceedings in the rent case after the death of the tenant on 12-9-1980 including the ejectment order and execution proceedings were a nullity. In this matter, appellants were the aggrieved parties. It could not be expected of the appellants, who were not aware of the proceedings, that the appeal against the ejectment order should have been filed by them within 30 days. In such a situation, where the aggrieved party is neither served nor is aware of the institution of the proceedings affecting his rights, period of limitation provided by law will commence from the date the aggrieved party becomes aware of such proceedings or adverse orders. In this context, we may refer to a judgment from Lahore and another from Sindh High Court.
In the case of Mehmood Alam v. Mehdi Hussain (PLD 1970 Lahore 6), a Division Bench of the Lahore High Court was considering the question of limitation for filing an appeal under section 18 of the Displaced Persons (Land Settlement) Act, 1958. The judgment in that case was authored by Mr. Justice Muhammad Afzal Zullah (as he then was). It was first held by the Lahore High Court that the said Act being admittedly a special law, section 5 of the Limitation Act was not applicable to appeals filed under section 18 of that Act. In that case the impugned order had been found to have been passed without knowledge of the appellant. The appeal filed by him was beyond the period of limitation provided for filing appeals under section 18 of the Act.
' It was held that the party in such circumstances would be entitled to challenge the order within the prescribed time counting the period from the date of his knowledge. It was observed as follows:-- ' "If, in a given case, a person is able to establish that he had the right of hearing, and in spite of that the order was passed or action was taken against him without his knowledge, he will be entitled to plead, while filing an appeal which, prima facie, is time-barred, that the time will start running against him only from the date of his knowledge about the order. It is true that the precedent law on the question of start of limitation from the date of knowledge is not consistent, yet there is ample authority for the proposition that, if the time starts running from the date of order or action, it should be presumed that the time will run from the date of the knowledge of the order of action, if it was made or taken in absence of the party.
It can be safely assumed that the proceedings without giving an opportunity of hearing are coram non judice and the order passed as a result thereof is a nullity. And if the party affected by such order had no knowledge of the same, the plea in limitation .That it starts from the date of the order, cannot be pressed against such an affected party. That party would be clearly entitled to challenge the order within the prescribed time, counting the period from the date of his knowledge.
' Under section 18 of the Displaced Persons (Land Settlement) Act, any person aggrieved by an order under that Act may prefer an appeal to the designated authority within 60 days of the order appealed against. It is to be noted that unless a person has the knowledge of the order against which he wants to file an appeal, he cannot be considered to have been aggrieved by it, because a grievance cannot develop without a simultaneous subjective realisation of the injury causing that grievance. It will have to be assumed that when the Legislature used the phrase 'aggrieved by an order', it meant the grievance about the order which has come to the knowledge of the party. If we were to hold otherwise, the right of appeal under section 18 would, in some cases, become illusory.
In this view of the matter as well, the date of the knowledge of the order passed is the starting point for an aggrieved persons to file an appeal within the prescribed time."
In the Karachi case, one of us as Judge of the Sindh High Court (Nasir A. Zahid, J.) had taken the view in the case of Jamaluddin v. Mst. Maryam (1988 MLD 1970) that in a case of ex pane eviction order passed by the Rent Controller on the wrong assumption that the tenant had been served, the order is in excess of his jurisdiction and the eviction order resultantly becomes a nullity and the bar of limitation in these circumstances cannot stand in the way of an appellant and his appeal dismissed on the question of limitation, and in such circumstances the period of limitation will run from the date on which the appellant comes to know of the passing of ex parte ejectment order.
We confirm the views taken in the aforesaid Lahore and Karachi judgments.
9. In the circumstances, the First Rent Appeal filed by the appellants was not liable to be dismissed as time-barred. The deceased tenant had not been served during his lifetime. Appellants were neither made parties nor served with any notice of the ejectment application. This appeal is accordingly allowed, the impugned judgment of the High Court in First Rent Appeal and the ejectment order passed by Rent Controller are set aside. The case is remanded to the Rent Controller for fresh proceedings in accordance with the law after impleading the appellants as opponents.
10. Mr. Abdul Aziz Khan, Advocate-on-Record for the appellants had informed on instructions that the godown is still with the respondent lying locked and has not been rented out or disposed of by him. If an application is made to the Rent Controller for restitution of possession, the Rent Controller shall hear the parties and if the Rent Controller finds that the possession of the godown is still with the, respondent, its possession shall be restored to the appellants.
' There shall be no order as to costs.