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‑‑‑O.V, R. 20‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13‑‑Landlord and tenant‑‑Substituted service‑‑Legality of‑‑Temporary absence of tenant from premises, held, would not amount to evasion of service justifying substituted service.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)

‑ ‑‑‑S. 13‑‑Ejectment proceedings‑‑Tenant, held, would have right to show cause against eviction proceedings initiated by landlord Mere illusory compliance would not meet requirement of law.

Ram Bharose v. Gaga Singh A I R 1931 All. 727 ref.

‑‑‑S. 13‑‑Civil Procedure Code (V of 1908), O.V, R. 20‑‑Qanun‑e Shahadat Order (10 of 1984), Art. 118‑‑Eviction order, ex parte‑ Validity‑‑Discharge of onus‑‑Tenant having not been properly served against whom eviction order was passed as result of substituted service, held, would be deemed to have discharged onus of limitation, seeking such eviction to be set aside at time of execution proceedings.‑ [Limitation]

Samiullah v . Yar Muhammad 1983 C L C 2981 and Serajuddin v . lqbal Begum P L D 1968 Lah. 639 ref.

(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)

‑ ‑‑‑5. 13‑‑ Natural justice, principle of‑‑Procedure adopted against tenant seeking eviction through substituted service with illusory compliance of requirements of law, held, would offend against principles of natural justice.‑‑[Natural justice, principles of].

P L D 1969 Lah. 16 ref.

(e) West Pakistan Urban Rent Restriction Ordinance (VI oaf 1959)

‑ ‑‑S. 13‑‑Civil Procedure Code (V of 1908), O.V, R.20‑‑Provisions of Civil Procedure Code, 1908, though not applicable to eviction proceedings, Rent Controller, being quasi‑judicial authority', held could not contravene principles of natural justice, ingrained in S. 13 of Ordinance VI of 1359‑ Power to be exercised by quasi‑judicial, functionary would conform to judicial norms and not in capricious manner.

Khadim Mohyuddin's case P L D 1965 S C 459 ref.

‑‑‑S. 15‑‑Appellate jurisdiction, exercise of‑‑Principles of natural justice having been ignored by Rent Controller while ordering substituted service, High Court in appellate jurisdiction set aside order of eviction of tenant and restored possession thereof, to such tenant.‑‑[Natural justice, principles of]

Muhammad Riaz Ahmad for Appellant.

Abdus Samad Dogar for Respondent.

Date of hearing: 13th October, 1985.

The appellant has challenged the ex parte order of eviction passed against him by the Civil Judge/ Controller, Quetta on 30‑6‑1985.

2. The appeal has been filed in somewhat unusual and peculiar circumstances. Muhammad Tariq, the respondent made an application under section 13 of the Urban Rent Restriction Ordinance, 3959 on 17‑2‑1985 and sought a direction from the Controller for the eviction of the appellant from the house bearing Municipal No. 7‑10/29 situated on Dramand Road, Quetta, on the ground of non‑payment of rent, with effect from August, 1384 and also for his personal occupation. This application was registered as No. 6 of 1985 on 17‑2‑1985 by the order of the Civil Judge, Loralai who is also empowered to deal with eviction application relating to Quetta. The appellant (respondent before the Controller) was ordered to be issued notice for 2‑3‑1985 but no process fee was found to have been paid for the issuance of notice/summons. The respondent herein was directed to deposit the requisite process fee for notice and the case was fixed for 12‑3‑1985. The respondent did not comply with this order also and the order for payment of process fee was repeated for 4‑4‑1985, when in spite of the fact that' no summons/notice was issued and there was no allegation /assertion that the summon was refused as no such occasion had arisen the learned Controller ordered that "Notice to the respondent (present appellant), be issued again and be served upon the respondent by affixation. A copy of the Notice be affixed on the notice board of the Court. To come up on 16‑4‑1985." On this date the following order was recorded:‑

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On the date fixed i.e. 4‑5‑1985 the ex parte proceedings were ordered against the tenant/appellant and the respondent was required to produce evidence for 13‑5‑1985, when an affidavit was filed. The case could not be finalized and ultimately on 30‑6‑1985 the order of eviction was passed. It is pertinent to point out that the process‑server when visited the premises did not find the appellant and the report was made by the process‑server that in the premises No. 7‑10/29 the Munshi of Shoaib Ahmad was present (who is that person has not been disclosed) it was reported that "Shoaib Ahmad has gone to Karachi for one year and has not returned."

3. It is the case of the appellant that the execution proceedings in his absence were taken and even no notice thereof was issued for him and the possession of the premises were shown to have been delivered on 11‑8‑1985 and this was known when the application for stay of the proceedings was filed. Having obtained the certified copy of the eviction order on 11‑8‑1985 the appeal has been filed on 22‑8‑1985 in this Court.

4. It has been contended by Mr. Riaz Ahmad the learned counsel for the appellant that the landlord has wilfully managed to suppress the facts and had obtained the order for affecting substituted service by ;.affixation by misrepresentation to the Court and by deceit. No order for affixation of the notice on the door of the house could be legally passed straightaway and that too without any formal application having been made in that behalf and the learned Controller without applying his mind at all has passed order. The order of the learned Controller passed on 4‑4‑1985 was, therefore, not a proper exercise of jurisdiction. Additionally, it has been submitted that when the fact was known that the appellant‑tenant was not found in the premises, no effort was made to know the whereabouts of the appellant even from the person who was referred to as the Munshi of the tenant. In the circumstances of the case, another date should have been fixed and the notice/summon should have been ordered to be issued on the address of the appellant The Court should have adopted a better and less suspicious mode. I am inclined to agree with the counsel and have no hesitation to hold that the proceedings so hurriedly taken definitely arouse suspicion which should not be encouraged. In the instant case there was nothing on record that the tenant was keeping out of the way. Thus there could be no legal justification for the affixation of the summon on the premises. The temporary absence does not amount to evasion of service. The tenant has a right to show the case against the application of the landlord. Mere illusory compliance does not meet the requirement of law. How can this opportunity be expected to have been afforded when the notice is not served on the tenant.

In a Full Bench of Allahabad High Court in Ram Bharose v. Ganga Singh A I R 1931 All. 727 Mukerji, J. observed:‑

"The object of issuing a summon is to inform the party against whom a suit has been instituted, of the fact that there is a suit against him, and if he chooses, he may come and defend it, if that be the object of a summons, and if, for no fault of his own, a defendant was never put in a position to know that a suit had been instituted against him, whatever steps may have been taken for serving the summons on him, these steps can never be accepted as amounting "due service". When an order for substituted service is made by a Court, on the representation of the plaintiff, only one side is present before the Court and it acts on the representation of one party Obviously it should be upon the defendant, when he appears, to show that the method employed was not calculated to effect the purpose, which the Court had in view namely, informing the defendant of the institution of the suit. If this is so, the Court has to consider, in view of all the circumstances of the case for example, the 3 place where the defendant was when the summon was issued to him, where and how the summons were served, and so on, in order to see whether there was due service."

5. No effort has been made to find out the whereabout of the appellant to serve him in the ordinary course. The report of the Process‑Server, does not indicate that the copy of the eviction application handed over to that "Munshi" at all. No affidavit of the Process‑Server in that behalf as prescribed by High Court Rules has been filed either. In the circumstances of this case, it cannot be reasonably said that the appellant become award of the institution of the eviction application, and there was nothing on record why the summons could not be served in the ordinary way, the service was not attempted even once. I am. therefore, of the considered view that the affixation of notice on the house of the appellant was neither fair nor just and the appellant has discharged the burden of showing that there was no due service on him and the substituted service was improperly procured, in the absence of the tenant /appellant at the behest of the respondent /landlord on the one‑sided representation at the time there was no occasion to do so and that he was not duly served in the matter. The substituted service did not achieve it object in bringing the claim of the respondent to the knowledge of the appellant and the tenant was prevented by sufficient cause from appearing when the matter was fixed for hearing. The case of the appellant is that he had no knowledge and remained all along ignorant about the ejectment order that was passed ex parte. It was only when the respondent took out the execution proceedings and warrant to evict him was actually executed the appellant learnt about it. I am of the view that the appellant has discharged the onus resting on limitation.

6. Zaffar. Hussain Mirza, J. who now adorns the Bench of the Supreme Court, in Shamiullah v. Yar Muhammad reported in 1983 CLC 2981 on facts almost similar to the instant case has observed:‑

"After hearing the learned counsel and perusing the report of the bailiff I am in agreement with the view taken by the learned Court below. As held in Serajuddin v. Iqbal Begum P L D 1968 Lah. 639 the provisions of rule 1 cannot be resorted to after making ,one solitary attempt to serve the defendant. The provisions are apparently penal in nature and as such to be strictly construed, if any resort is taken thereto by Controller by its own force. Section 13(2) of the Urban Rent Restriction Ordinance embodies expressly the requirement of the rule of natural justice and an order of ejectment can be passed against the tenant by the mandate of the statute only". If the Controller after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that on the grounds specified in the Ordinance, the tenant is liable to be ejected". Law is favourably, inclined towards adjudication on merits. If the case of the appellant is that the house was found locked since sometimes before institution of proceedings, it was meaningless to effect service through affixation, and perhaps the necessary object could have been achieved by service through publication."

In the instant case as already said there was no allegation in the eviction application that the house was locked or that the tenant was avoiding service (as the service was not attempted even once). The bailiff was not examined nor any affidavit as prescribed by High Court Rules was filed. The procedure adopted in the case and adopted by the Controller not only violated the principles of natural justice but action in violation of the rules which the Controller as a Civil Judge was duty bound to follow. It has been pointed out in P L D 1969 Lah. 16:‑

"That the Controller is a quasi‑judicial authority but at the same time he is appointed as a Rent Controller because he holds the office of a Civil Judge in the province. Even though under the Ordinance no rules to procedure have been laid down for the conduct of the case by a Rent Controller, but it will be too much to say that the Civil Judges who are appointed as Rent Controller are not bound by instructions issued by the High Court or the High Court Rules and Orders. These rules are binding on the Civil Judges whether they act as Rent Controller or otherwise."

7. Mr. Abdus Samad Dogar, Advocate appearing for the landlord/ respondent made an attempt to justify the ordering the affixation of Notice (though no application was made in that behalf by him nor any verbal request made) and stressed that the Rent Controller does not act as a Court and placed reliance on Khadim Mohyuddin's case P L D 1965 S C 459. With due respect to him I am constrained to say that the learned Advocate has not understood the judgment. No doubt the provisions of Civil Procedure Code are not applicable to the proceedings before the Controller as the Controller is a quasi‑judicial authority and he can evolve his own procedure but the Controller is not authorized to contravene the principles of natural justice ingrained in section 13 of the Ordinance. The power to be exercised must conform to judicial norms and not in a capricious manner. As demonstrated by the record the method adopted by the Controller has practically nullified the provisions of section 13 of the Ordinance.

For the above reasons, I have no option but to set aside the order impugned in this appeal and quash the subsequent proceedings of execution which fall with the superstructure build on the void order, dated 30‑6‑1985. Since the appellant has been dispossessed illegally he is entitled to be restored to the possession.

The appeal is thus allowed The possession shall be restored to the appellant. The case shall be tried in accordance with law by a Controller other than that who passed the impugned order. The appellant is entitled to get his costs from the respondent. The Advocate's fee is fixed at Rs.1,000 (one thousand) which the respondent shall pay to the appellant.

Before parting with this judgment, I record my appreciations for the valuable assistance as rendered by Mr. Riaz Ahmad, Advocate for the appellant.

A. A. Appeal allowed.

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