PEHALWAN KHAN Appellant versus Mrs.

NAJMA MUJTABA Respondent

Citation: 1986 CLC 1735

Result: Appeal Accepted
Court: High Court of Sindh
Date of Decision: 05.5.1985
Judge(s): Abdul Qadeer Chaudhry, J
Case Number: First Rent Appeal No. 596 of 1982
JUDGMENT

JUDGMENT
The respondent landlady brought an application against the
appellant in the Court of Controller seeking eviction of the
appellant from the house bearing No. 10?B, Rafa?e?Aam Society,
Malir Halt, Karachi on the grounds of default in payment of rent,
personal need and sub?letting of the premises in question without
her consent. The notice was issued for service on the appellant. The
diary of the Court, dated 25?3?1981 shows that the notice not to
the appellant was not receivedback. It was ordered that the fresh
notice be issued. Notice for12?4?1981 returned unserved. An
application for substituted service was filed. Court allowed such
application and after the publication of the notice in the newspaper
the Controller held the service good on 28?9?1981.The appellant
was .called absent and ex parte proceedings werestarted against
him. An affidavit was filed by Mujtaba Hussain, husband of the
applicant?respondent. The learned Rent Controller accepted such
statement and allowed the rent application. Hence the present
appeal.

2. The order impugned in this appeal is, dated 25?10?1981 but the
appealhas been filed on 23?5?1982 i.e. after about delay of seven
months.The period for filing such appeal under section 21(1) of the
Sind Rented Premises Ordinance, 1979 is 30 days, therefore, the
appeal is time?barred. The learned counsel for the appellant stated
that the servicewas not affected upon the appellant and, therefore,
the time would run from the date of knowledge. It is the case of the
appellant that the respondent filed the execution application No. 4
of 1982 in the Court of Controller and the appellant received
execution notice by registered post on 5?5?1982 at 2?00 p.m. for
appearance on 5?5?1982 in the Court and thus came to know for
the first time about any legal proceedings pending against him in
the Court. The record shows thatthe bailiff alongwith the son of the
respondent went to serve the notice on the appellant on 1?4?1981.
A young boy came out of the house and told that the appellant is not
present but he did not disclose his name. Again on 4?4?1981 at
about 6?00 p.m., he alongwith the applicant's son reached at the
given address. On pointing out by the applicant's son he knocked
the door. A person came out from the house. The applicant's son
told him that he was the opponent. On the pointation of the
applicant's son he offered him a copy of the notice to which he
refused to accept and sign and came in anger and used bad words.
The bailiff further stated that he, therefore, pasted a copy of the
notice on the outer door of the opponent's house which he removed
from there and torn it. No one witness was available there. He did
not know the opponent personally. He obtained such signature of
the applicant's son on the original. The record further shows that on
the addressgiven in the application a registered letter was sent to
the appellant but it was returned undelivered. It appears that
attempts had been made on various dates to deliver the letter but it
was not received by the appellant. The endorsement is not clear
whether the appellant had refused to receive the letter or who had
been approached forthe delivery of this letter. It was the duty of the
respondent to examine the postman in order to show that the
appellant had refused to accept the notice.The publication has been
made in an English daily. The appellant has stated that he is an
illiterate man and this contention has not been refuted. It cannot be
presumed that an illiterate semi?illiterate man would read an
English paper which is otherwise not of wide circulation. The
publication has not been made in an Urdu daily so that the service
may be held good. Under Order V, rule 10?A notice through
registered cover was sent but as the same remained undelivered no
adverse inference can be drawn against the appellant either under
the General Act or under rule 10?A of Order V of C.P.C. The learned
counsel for the appellant has referred to the ease of Muhammad
Nasir v. Sadiq Muhammad, reported in 1982 C L C 856 whichlays
down that summons for material date not affixed at Court notice
board or at outer door of premises in question, it was held that the
service was not proper, and if the applicant is not served properly
and as such he had no knowledge of the suit the period of limitation
for setting aside such decree be computed from the date of
knowledge. Under the Sind Civil Courts Rules, the Serving Officer
shall serve all, the processes entrusted to him without the aid of the
party at whose,' instance the process is issued and after due inquiry
as to the identity of the person on whom, or the house or property
where, the same is to be served. Provided that if it appears to the
Court that sufficient information cannot be given as to the identity
and place of residence of the person on whom process is to be
served the person aforesaid could not be identified after due
diligence and inquiry, it may ask the party concerned to supply an
identifier. The order of the Court has not been obtained by the
process?server before taking son of the applicant for the purpose of
identification. The process?server himself did not make any effort to
identify the person. He has stated that he did not know the
appellant but as the order of the Court had not been obtained,
therefore, rule 105 of the Sind Civil Courts Rules has not been
complied with as such in my opinion the service is not proper. The
process?server has also not obtained the signature or
thumb?impression of a respectable person of the locality identifying
such person as required by rule 106. If a person refuses to sign the
acknowledgement the serving officer before affixing a copy of the
summons on the outer door of the house obtain on the original
process the endorsement by signature or thumb impression of at
least one respectable person of the locality as required by rule 107.
This rule has also not been complied with, and it is stated by the
bailiff that no respectable person was available. Similarly rule 109
has not been adhered to. There is also non?compliance of Order V,
rule 20 as the copy of the summons was not affixed in some
conspicuous place in the Court house. The learned counsel for the
respondent has referred to the case of Muhammad Yaseen and
another v. Mst. Akhtar Jehan, reported in 1983 C L C 3063 but the
facts are distinguishable and are not attracted in the present case.
On the other hand, the case of Muhammad Samin Jan v. Messrs
Ferozsons Laboratories Ltd.. Nowshera and 2 others reported in P L
D 1972 Pesh. 133 supports the contention that provisions of Order
V, rule 20 are mandatory in nature and must be complied with.

3. In these circumstances, I am of the opinion that the service on

the appellant had not been done in accordance with law, therefore,
the service cannot be held good. The learned Rent Controller did
not apply his mind before passing the ex parte order against the
appellant. The appellant has stated that he had come to know of the
pending proceedings against him when a notice was served upon
him through registered 'cover and, therefore, time would run from
the date of knowledge.

4. The appeal is accepted. The order of eviction passed by the Rent

Controller is set aside and he is directed to proceed with then case
after obtaining written statement from the appellant.

There will be no order as to costs.