Find a Lawyer

First Rent Appeal No. 496 of 1982, decided on 20th April, 1985.

Sind Rented Premises Ordinance (XVII of'1979)--

---Ss. 15 & 21--Civil Procedure Code (V of 1908), O.V, r. 21--Ejectment on ground of default--Substituted service requirements--Before ordering substituted service, it was incumbent upon Rent Controller to apply mind to facts of case and to come to conclusion that in spite of best efforts of respondent appellant could not be served and such appellant had been avoiding service with object of obstructing disposal of case--In absence of such caution, substituted service, held, could not be upheld.

M. Hussain Adil Khatri for Appellant.

G.P. Shaikh for Respondent.

Date of hearing: 14th April, 1985.

This First Rent Appeal directed against the order, dated 13-12-1981 passed by XIIIth Senior Civil Judge and Rent Controller, Karachi, in Rent Case No. 3714 of 1980, whereby the eviction application was allowed and the appellant was directed to hand over vacant possession of the premises to the respondent within sixty days of the order.

The facts which give rise to this appeal are that the respondent is the owner of building in Plot No. M.R. 5/8, Ali Akbar Street, Karachi, and the appellant is the monthly tenant of the Cabin No. 2 on top floor of the building. The appellant is monthly tenant at an agreed rent of Rs.36.75 per month. The respondent filed an Eviction Case No. 3714 of 1980 against the appellant on the ground of default in payment of rent since January, 1980. The learned Rent Controller issued notice to the appellant for 6-8-1980 through Bailiff as well through Registered Post Acknowledgement Due. The Bailiff of the Court went to the given address on 29-7-1980 and 2-8-1990 but the appellant was not present in the premises. He returned the notice with the endorsement "The appellant was not available". The learned Rent Controller ordered for fresh notice. The Bailiff went at the premises on 14-9-1980 but could not find him there as such returned the notice with the endorsement" the appellant was not available".

The notices which were ordered to be issued through Registered Post Acknowledgement Due were also returned with endorsement "that the cabin was found locked". l tw learned Rent Controller orderd for issuance of fresh notice for 2-12-1980. The Bailiff as per report pasted notice on the premises in the presence of witness on 17-11-1980.

On 6- 12- 1980. the respondent filed an application for substituted service. The learned Rent Controller allowed the application by his order, dated 6-12-1980.

It is advantageous to reproduce the order which reads as under:-

"Since opponent is not being served by ordinary service, substituted service by pasting and publication allowed."

It seems that the order was partly complied with, that is, by publication in daily "Jasarat" only but no pasting at the conspicuous place was done in this case as ordered by the learned Rent Controller.

The learned counsel for the appellant has contended that the application under Order V , rule 20, C . P. C . was filed on the ground that the notices were tried to be delivered to the appellant but refused to receive the same.

I have perused the record and proceedings of the Rent Case No. 3714 of 1980. It appears from the reports of the Bailiff that the appellant was not available at the time of the service of notices and the postman of the area also returned the registered letters with the' remarks that the cabin was found locked. I am of the view that the application under Order V, Rule 20, C.P.C for substituted service was not warranted by the facts of this case. It seems that the impugned order was obtained by misrepresentation by the respondent. In my view before granting affixing copy of notice in some conspicuous place' in the Court building and also upon some conspicuous place of the cabin in dispute, it is incumbent upon the learned Rent Controller to,, apply his mind to the facts of the case and to come to the conclusion

that in spite of the best efforts on the part of the respondent. The' appellant could not be served for the reason that he has been avoiding the service with the object of obstructing the disposal of the rent case. There is however, nothing on the record to show that any effort was made to serve him personally. Service by publication in-newspapers, thus cannot be upheld.

Mr. G.P. Shaikh has fairly conceded that the appeal be allowed and the rent case be remanded to the learned Rent Controller for disposal in accordance with the law.

In the circumstances, this appeal is allowed and the impugned order, dated 13-12-1981 is set aside and the case is remanded to the Rent Controller for deciding the case in accordance with law within a period of six months from the receipt of this order and R and P from this Court. There will be no order as to costs.

A.A.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.