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First Rent Appeal No. 1017 of 1980, decided on 13th December, 1981.

‑‑ Ss. 15 & 21‑‑Eviction proceedings‑Ex parte order passed against appellant without service of notice‑Bar of limitation provided under S. 21, held, not applicable.‑[Limitation].

Syed Muhammad v. Mazhar Ali Khan P L D 1981 Kar. 76 ref.

B. M. Bangesh for Appellant.

Habibullah Samo for Respondent.

Date of hearing: 30th November, 1981.

This First Rent Appeal has been filed by the appellant/Mst. Mariam Bai, against the ex parte order dated 24‑5‑1980 passed by the Rent Controller in Rent Case No. 1532/79 allowing the Rent Application of the respondent/ landlady, lust. Salma Khatoon, and the order dated 23‑12‑1980 in Execution Application No. 70/80 arising out of the aforesaid Rent Case. The order dated 24‑5‑1980 granting the ejectment‑ application is an ex parte order. This First Rent Appeal was filed in this Court on 24‑12‑1980 and it is the case of the appellant that she came to know about the filing of the Rent Case by the respondent for the first time when a day earlier, i.e. on 23‑12‑1980, in the evening, the landlady's Perokar alongwith the bailiff and police came for getting the premises vacated. An application under section 5 of the Limitation Act (C. M..A. 3662/80) has also been filed seeking condonation of delay of about 6 months in filing of the appeal on the ground that the appellant came to know about the rent proceedings and the passing of, the orders by the Rent Controller only 23‑12‑1980, as observed earlier. Another Application (C. M. A. 785/81) has been filed under Order XLI, rule 2 read with section 151, C. P. C. on behalf of the appellant with the prayer that the Court may allow the appellant to amend the memo of appeal and the ground that the impugned order of the Rent Controller allowing the Rent Application ex pane against the appellant is a nullity, without jurisdic tion and that the bar of limitation does not apply to the present First Rent Appeal.

2. The question of limitation has assumed important in the instant case as admittedly toil First Rent Appeal has been filed much beyond the period of 30 days provided by section 21 of the 1979 Ordinance for filing appeals against orders of the Rent Controller, and a learned Single Judge of this Court (Naimuddin, .J.) in the case of Syed Muhammad v. Mazhar Ali Khan (P L D 1981 Kar. 76), has held that section 5 of the Limitation Act is not applicable to appeals filed under section 21 of the 1979 Rent Ordinance. In view of this legal position, it was contended by Mr. Habibuilah Samo, learned counsel for the respondent, that the present appeal was time-barred. On being asked whether the question of limitation will be a relevant question at all if the Court comes to the conclusion that no service had been effected on the appellants and as such the impugned order is to be treated as an order without jurisdiction, in which case the law of limitation will not come in the way of the appellant as far as the maintainability of the present appeal is concerned. Mr. Habibullah Sarno, learned counsel for the respondent, very frankly any very fairly conceded that if this Court reached such a conclusion then the bar of limitation of 30 days provided under section 21 of the 1979 Ordinance would not be applicable and the appeal would be maintainable.

3. Rent Case No. 1532/79 was filed by the respondent in the Court of First Rent Controller, Karachi on 22‑3‑1979. The respondent had purchased the bungalow in question, which is a double‑storeyed building consisting of ground and first floor. Ground floor is sub‑divided into two portions with the front portion in possession of the appellant on a monthly rent of Rs. 105 per month. The bungalow in question is located in Amil Co‑operative Housing Society, Karachi. According to the Rent application, the respondent had informed the appellant after purchasing the property that the bungalow had been purchased for personal and residential needs of the respondent. It is further stated in the Rent Application that the respondent requested the appellant to hand over vacant and peaceful possession to the respondent but the appellant did not agree and in the circumstances the ejectment case was filed by the respondent. The Rent Application was admitted on the same day, that is 22‑3‑1979, and the Rent Controller ordered registration of the application and issuance of notice to the appellant. The record of the lower Tribunal is before this Court and it shows that on 7‑11‑1979 an application under Order V, rule 20, C. P. C. had been filed by the respondent praying that the appellant may be served through publication as the appellant was avoiding service deliberately and that the report of the bailiff has shown that ‑the appellant had refused to accept the summons. The record of the Rent Controller shows that prior to 7‑11‑1979 no summons' are on the record and it is precisely for this reason that by order passed on 3‑12‑1979 on the said application, the Rent Controller did not grant the application. The Rent Controller passed the following order on the said application:‑--------

"Notice by ordinary service not yet issued. First send notice for service through bailiff."

This would show that prior to that date not even a single notice had been issued in the normal course. Thereafter the matter was fixed on a few dates before the Rent Controller and when the matter came up before him on 12‑1‑1980 the following order was passed:‑‑

"Applicant (respondent) with counsel called absent. Costs not paid. Application dismissed in default."

After the Rent Application had been dismissed for default on 12‑1‑1980, an application under Order IX, rule 4 read with section 151, C. P. C. was filed on behalf of the respondent for setting aside the dismissal order and restoring the case to its original number. This application was filed on 3‑2‑1980 and in the affidavit of the attorney of the respondent in support of the said application it was inter alia mentioned that the appellant was still unserved. This application was granted by the Rent Controller by the following order passed on 5‑2‑1980:‑---

"Heard. The other party not yet served. In the interest of justice I restore the matter."

After restoration of the Rent Application, the next date was 12‑2‑1980 and the order‑sheet shows that the Court was vacant but the next hearing was fixed for 24‑2‑1980. Notices were sent by the office of the Rent Controller for service on the appellant for hearing on 24‑2‑1980 through bailiff as well as through registered post with acknowledgment due. The report of the postal authorities as well as the bailiff was that the lady, who was supposed to be the appellant, refused to accept the notice/summons and as such the registered cover also came back, and the notice was also returned by the bailiff on 23‑2‑1980 with the report that he did not know the lady who refused to take the notice saying that she would first consult the Advocate and then take the notice. On these reports, namely the postal authorities and the bailiff's reports in respect of the notices issued for 24‑2‑1980, the Rent Controller was not satisfied that service had been effected on the appellant and, therefore, he passed an order to the following effect on 24‑2‑1980:

"Counsel for applicant is present. Opponent is not yet served. Repeat notice by post/bailiff. Costs. Put off to 13‑3‑1980."

After 24‑2‑1980 the record of the Rent Controller shows, that there are no notices or copies of notices in the file which makes it manifest that after 24‑2‑1980 no notices were issued for service upon the appellant and this is confirmed from the two orders passed by the Rent Controller on 13‑3‑1980 and 29‑3‑1980. On both these dates, the Rent Controller noting the presence of the Advocate of the respondent ordered for issuance of notice to the appellant. The record shows that no notices were issued for 13‑3‑1980 as ordered on 24‑2‑1980, and for 29‑3‑1980 as ordered on 13‑3‑1980, and for 9‑4‑1980 as ordered on 29‑3‑1980.

In‑between this period a second application under Order V, rule 20, C. P. C. was ‑moved by the respondent on 28‑2‑1980 submitting that the appellant was avoiding service deliberately and that the report of the bailiff had shown that the appellant had refused to receive the notices and a prayer was made that service on the appellant may be effected through publication, in some newspaper. This was an identical application to the first application dated 7‑11-1979 under Order V, rule 20, C. P. C. and the affidavit was also filed by the same person, namely Syed Tamizuddin Sibtain, who bad shown himself as the clerk of the Advocate for the respondent. This second application under Order V, rule 20 came up for orders before the Link Judge on 9‑4‑1980 as the Presiding Officer of the Tribunal in question was on leave on 9‑4‑1980 and by two words "Granted. Costs." the Link Judge allowed the said application and in pursuance thereof a. notice was published in a weekly newspaper "The Reporter" and thereafter ex parte proceedings were taken and ultimately the ex parte order 24‑5‑1980 was passed by the Rent Controller allowing the Rent Application of the respondent on the ground of personal use on the basis of the affidavit in ex parte proof supposed to be of the respondent. The body of this affidavit in ex parte proof shows it to be that of respondent Mst. Salma Khatoon but it is signed by Noor Ahmad. This was apparently not noticed by the Rent Controller. In any case, the narration of the above facts and perusal of the orders passed from time to time by the Rent Controller shows that till 12‑1‑1980 admittedly the appellant had not been served and on that date the Rent Application had been dismissed for non‑prosecution by the Rent Controller. Thereafter on the application of the respondent, the Rent Applica tion was restored without notice to the appellant as it was admitted by the respondent that notice had not been served upon the appellant and the Rent Controller had also noticed in his order restoring the rent case that notice had not been served. After that only one notice was issued for 24‑2‑1980, and the order passed by the Rent Controller on 24‑2‑1980 shows, that the Rent Controller was not satisfied that service had been effected on the appellant and in his order dated 24‑2‑1980 the Rent Controller clearly observed that the appellant had not yet been served. He ordered that notices may be repeated by post/bailiff and required the respondent to pay costs. After that there are two further orders, as observed earlier dated 13‑3‑1980 and 29‑3‑1980 to the effect that fresh notice be issued to the appellant. The second order further shows that after 24‑2‑1980 no costs were paid nor any notice was issued to the appellant. It, therefore, follows that the orders dated 24‑2‑1980, 13‑3‑1980 and 29‑3‑1980 were not complied with by the respondent. In these circumstances the case was put up before the Link Judge on 9‑4‑1980, and apparently unaware of the previous orders that notices were to be repeated through post and bailiff, a two -worded order "Granted, Costs" was passed by the Link Judge on 9‑4‑1980 on the second application dated 28‑2‑1980 filed by the respondent. Having rejected the earlier application and having passed orders dated 24‑2‑1980. 13‑3‑1980 and 29‑3‑1980 and not being satisfied service had been effected and thrice ordering fresh notices through post and bailiff, and the respondent not compying with any of these three orders, the dated 9‑4‑1980 could not have been passed by the Rent Controller.

4. There is another aspect of matter and that is that the Rent Applica tion had been filed by the respondent on the ground of requiring the premises in occupation of the appellant for personal bona fide use and the application was filed on 23‑3‑1979, but according to the affidavit in support of the application (C. M. A. 3662/80), the appellant has stated that she had paid rent up to December, 1980, directly to the respondent and if prior to that any notice had been served upon the appellant or she had become aware of the rent proceeding or the execution proceedings she would have defended the same. In any case, the rent was accepted up to December, 1980, by the respondent which allegation has not been denied by the respondent and at no point of time, according to the appellant, the respondent informed the appellant that the rent case had been filed and that the same had been decided ex parte and that an execution application had been filed against the appellant.

5. In the above circumstances, I am of the view that the order granting the respondent's application dated 28‑2‑1980 by order dated 9‑4‑1980 was not passed in accordance with law and the Rent Controller acted in excess of jurisdiction by passing the impugned order dated 24‑5‑1980 on the wrong assumption that the appellant had been served. According to me, the appellant had not been served and the order dated 24‑5‑1980 of the Rent Controller was a nullity in law and the execution proceedings based thereon are also of the rip legal effect.

6. In the circumstances, as it has been conceded by learned counsel for the respondent, as observed earlier, the impugned order being a nullity in law and having been passed in excess of jurisdiction by the Rent Controller, the bar of limitation is not in the way of the appellant and the present appeal cannot be dismissed on the question of limitation. The appellant filed this First Rent Appeal on the next day of having come to know about the ex parte orders. As notice was not served on the appellant. This First Rent Appeal No. 1017/80 is allowed the impugned orders are set aside and the case is remanded to the Rent Controller for decision on merits in accordance with law. There will be no orders as to costs.

A grievance has been made by learned counsel for respondent that these proceedings were filed in March, 1979 and after more than 2 years the respondent will come back to the original position when he had filed the Rent Application, that is, that he leas to start afresh the entire proceedings if this appeal were allowed. In the circumstances, I direct the parties to be present or through their representatives or Advocates before the X Senior Civil Judge & Rent Controller, Karachi, on 16‑1‑1982, on which date the appellant will file her Written Statement. No notice will be issued by the Rent Controller for this date as this order is being announced in the presence of the counsel for both the parties. After the Written Statement is filed, the Rent Controller will proceed to decide the case on merits in accordance with law. The Rent Controller will proceed expeditiously in the disposal of the aforesaid case and it is expected that the proceedings will be finalised by the Rent Controller within a period of six months. R & P of the Rent Controller be sent to the X Senior Civil Judge & Rent Controller, Karachi, by the office within two weeks.

M. Y. M. Appeal allowed. Case remanded.

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