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‑‑S. 13‑Eviction‑Provisional Constitution Order (1 of 1981). Art. 9‑Notice‑Substituted service of‑Notice of ejectment proceed ings not personally served as tenant not found‑Rent Controller direct ing fresh notice to be issued with instruction of affixation of copy of notice on. place of tenant's residence in case he avoided to accept notice‑Process server not contacting tenant and yet affixing copy of notice on house in dispute‑Rent Controller again ordering tenant's service to b.‑ effected by publication of proclamation in daily news‑paper‑Tenant not putting in appearance and Rent Controller passing ex parse order of eviction‑Held, in circumstances Rent Controller acted on wrong premises to proceed to order substituted service of tenant and start ex parte proceedings against him‑Civil Procedure Code (V of 1908), O. V, r. 20.

Kh. Ashfaq Ahmad for Petitioner.

Ch. Muhammad Abdullah for Respondent.

Date of hearing : 20th October, 1982.

This writ petition assails the validity of the order of the learned Rent Controller, Lahore, respondent 2, dated the 9th Apri1,1981 reject ing the petitioner's application for setting aside ex parse order of his eviction from the house in dispute secured by respondent 3 on the 16th February, 1980, from another Rent Controller of Lahore, and of the learned Additional District Judge, Lahore, respondent 1, dated the 19th May, 1982, endorsing in appeal the order of the learned Rent Controller.

2. On the 21st November, 1979. Haji Muhammad Shafi, respondent 3, moved application under section‑ 13 of the Punjab Urban Rent Restriction Ordinance, 1959 before the learned Rent Controller, Lahore, seeking ejectment of Shahbaz petitioner, from the house in question on the grounds that the latter had defaulted in making payment of rent and had sublet the building and that he required the house for reconstruc tion. The next day the learned Rent Controller ordered issuance of notice to the petitioner for the 18th December, 1979. The notice was returned by the process server un-served as the petitioner was reported not to . have been found. On the last mentioned date. fresh notice was directed to be issued for the 23rd January, 1980, with the instructions that in case the petitioner avoided to accept service of notice he should be served by means of affixation of a copy of the notice on his place of residence. Though the process server could not contact the petitioner yet ‑ he affixed a copy of the notice on the house in dispute on the 21st January, 1980. When the case came up for hearing before the learned Rent Controller on the 23rd January, 1980, he passed the order that the petitioner's service should be effected by means of publication of proclamation in the daily Maghrabi Pakistan', Lahore, for the 19th February. 1980. As the petitioner did not put in appearance before the learned Rent Controller on the 18th February, 1980, he passed ex parte order of his eviction.

3. On the 5th March, 1980, the petitioner moved application for setting aside the ex parte order made against him on the ground that he had not been duly served with the notice and that he had no know ledge of the proceedings of ejectment application filed by respondent 3 against him. After receiving evidence of the parties the learned Rent Controller rejected the application. The appeal preferred by the petitioner was dismissed by the learned Additional District Judge. Feeling aggrieved he has invoked the extraordinary jurisdiction of this Court.

4. As rightly pointed out by the learned counsel for the petitioner the service of the petitioner by means .of affixation of a copy of the notice on the house had been effected contrary to the directions of the learned Rent Controller. It was only if, the petitiorier were to avoid to accept service of the notice that a copy thereof was to be axed on his place of residence. He never avoided to accept service of notice. Actually the process‑server never came into contract with him. In these circumstances the learned Rent Controller acted on wrong premises to proceed to order substituted service of the petitioner and start ex parte proceedings against him.

5. The contention of the learned counsel that the learned Rent Controller, while disposing of the petitioner's application for setting aside the ex perte order, misread the evidence is not without force. The perusal of the impugned order of the learned Rent Controller discloses that he was under the impression that the process server (Muhammad Akbar, A.W. 2) had stated that the petitioner would not come out of the house and that his wife had informed that he had been out and as such in accordance with the instructions of the learned Rent Controller be had affixed the notice on the house. However there is no mention of the fact that the petitioner would not come out of the house and that his wife had informed that he had been out in the statement of Muhammad Akbar, process server. Again the observa tion of the learned Rent Controller that Muhammad Ismail, P W 2, had corroborated the statement of, process‑server is not correct because what he deposed to is not found in the statement of Muhammad Akbar. In these circumstances the learned Rent Controller based his order on something which did not exist on the record. The .order of the learned Additional District Judge arming in appeal in general terms the finding of the learned Rent Controller suffers from the same defect. In these circumstances the impugned orders cannot stand the rest of scrutiny by this Court and are consequently declared to be unlawful and of no legal effect. In the result the ex parse order of eviction of the petitioner from the house in dispute passed by the learned Rent Controller on the 19th February, 1980, is set aside. The case is remanded to the learned District Judge. Lahore, who will entrust the ejectment petition of respondent 3 to a Rent Controller of Lahore, who is directed to dispose of the same within four months. The petitioner and respondent 3 have been directed to appear before the learned District Judge, Lahore, on the 3rd November, 1982. The parties are

left to bear their own costs.

K. M. A Petition accepted.

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