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Constitutional Petition No. S‑81 of 1984, decided on 2nd October, 1986.

‑‑‑0. V, R. 20‑‑Substituted service through pasting of notice‑ Requirements‑‑In substituted service, if pasting of notice was not effected in presence of two independent witnesses and report of Bailiff was also without oath, such substituted service, held, could not be considered proper and in conformity with prescribed procedure.

‑‑‑0. V, R. 20‑‑Substituted service‑‑Validity of‑‑In absence of any evidence on record to show that defendant was keeping out of way for purpose of avoiding service, order of substituted service either for pasting or publication, held, would not be proper and order and judgment based thereon would be without lawful authority.

K . A . Wahab for Petitioner.

Nasrullah Awan for Respondent No.3.

Date of hearing: 2nd October, 1986.

This is a petition under Article 9 of the Provisional Constitution Order, 1981 read with Article 199 of the Constitution 1973 of Islamic Republic of Pakistan for quashing the order, dated 29‑5‑1980 passed by respondent No. 2 and judgment, dated 1‑4‑1984 passed by respondent No. 1.

The facts leading to the filing of the above petition are that the respondent No. 3 is the owner and landlord of premises built on Plot No. 107‑C, Commercial Area, Defence Housing Society, Karachi and the petitioner is tenant in respect of a shop at the monthly rent of Rs.300. The respondent No.3 filed an eviction application under section 17 of the Cantonment Rent Restriction Act, 1963 before respondent No. 2 on the ground of default and sub‑letting. It seems that the notices were issued to the petitioner for appearance on 28‑2‑1980 through bailiff as well as by registered A.D. post. As per report of bailiff the shop was closed.. The postman returned the notice with the remarks 'not receive to told you many time'. The respondent No. 3 filed an application for substituted service through publication which was allowed and the notice was published in the 'Daily Morning News', dated 31‑3‑1980 for appearance on 8‑4‑1980. On 8‑4‑1980 when the case was fixed, none appeared on behalf of the petitioner. As such the case was adjourned for ex parte proceedings and the respondent No. 3 was directed to file affidavit in ex parte proof on 22‑4‑1980. The eviction application was allowed by the respondent No.2 vide his order, dated 29‑5‑1980 and the petitioner was directed to hand over peaceful and vacant possession of the shop in dispute to the respondent No.3 immediately.

The petitioner being aggrieved against the order, dated 29‑5‑1980 preferred an appeal before the respondent No.l. The respondent No.l after taking into consideration the arguments advanced by the learned counsel for the parties dismissed the appeal by order, dated 1‑‑4‑1984.

The petitioner being aggrieved against the aforesaid orders has preferred this petition on the grounds mentioned in the memo. of petition.

Mr. K.A. Wahab for the petitioner has contended that the order and judgment passed by the respondents 2 and 1 respectively are without lawful authority.

On the other hand Mr. Nasrullah Awan, the learned counsel for the respondent No.3 has submitted that the impugned order as well as impugned judgment are in accordance with the evidence on record.

It is an admitted position that the eviction application filed by the respondent No.3 was presented on 14‑2‑1980 and the same was admitted on 16‑2‑1980. Notices were ordered to be issued for service for 28‑2‑1980. A perusal of the impugned order of the respondent No.2 shows that the service of notices was not effected upon the petitioner as she was not available at the given residential address. I have perused the bailiff's report, dated 17‑2‑1980, and it shows that the shop in question was closed and it also shows that the residential address where she was residing, some students were staying and they told the bailiff that no one by the name of petitioner was staying at that address. I have also perused the postal acknowledgment due card and the endorsement on it which reads 'not received to told you many times'. The respondent No.3 moved an application for substituted service through pasting/ affixing the notice on the door and also through bailiff as well as registered post A.D. The learned IIIrd Rent Controller passed order thereon which reads 'paste the notice on the said property'. I have also perused the report of the bailiff, dated 4‑3‑1980 and EL perusal thereof shows that he went alongwith the respondent No.3 and pasted the notice on the shop. I have perused the endorsement of the bailiff which reads 'pasted on the premises in my presence'. It seems that the respondent No.3 moved another application on 17‑3‑1980 for publication of notice in the 'Daily Morning News' Karachi. This application was granted on 18‑3‑1980. A bare perusal of bailiff's report, dated 4‑3‑1980 shows that the notice was pasted only in presence of the respondent No. 3 and it was not pasted in presence of two independent witnesses and secondly the report of the bailiff not on oath‑. Mr. Nasrullah Awan the learned counsel for respondent No. 3 has fairly conceded that the application for pasting as well as for publication are without any basis. He also conceded that the substituted service cannot also be ordered A as there is nothing on the record which shows that the defendant/ petitioner is keeping out of the way for the purpose of avoiding service.

In these circumstances and facts I am of the view that the substituted service is not proper and the order and judgment are without lawful authority. For the above reasons the ex parte order passed against the petitioner is set aside and the case is remanded to the respondent No.2 for disposal in accordance with law. The parties are directed to appear before the respondent No. 2 on 20‑10‑1986. The petitioner is also directed to file the written statement on that day. As the matter is pretty old. I direct the respondent No. 2 to dispose of the same within four months from the date of this judgment.

H . B . T . Petition allowed /Order accordingly.

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