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Constitutional Petition No.S-24 of 1985, decided on 14th March, 1987.

---O. V--Summons, service of--Proper method of service of summons or notice was by getting same personally delivered to opposite-part through bailiff or any other person appointed by Court--- Service by publication or pasting of summons or notice outside the house or place of business of defendant--Objects of such service stated.

---S.14--Civil Procedure Code (V of 1908), O.V & O.IX, R.13- Constitution of Pakistan (1973), Art.199--Summons, service of--Ex parte decree, setting aside of--Sole attempt made by Rent Controller to effect service of summons on petitioner in ordinary manner and thereafter substituted service ordered which by no standard could be regarded as proper procedure to be adopted under given circumstances--Rent Controller, on petitioner's appearance and request to set aside ex parte order, simply proceeding on assumption that petitioner must have had knowledge in respect of proceedings as at time of passing ex parte order he was within the country--Such assumption, being farther based on fact that the notice sent to the petitioner in regard to proceedings was pasted on outer door of his house and also published in newspaper, was not correct--Order of ejectment passed against petitioner without proper service of summons on him, held, suffered from serious infirmity and was clearly without jurisdiction--Ex parte order and other proceedings thereafter set aside and case remanded to Rent Controller for proceeding in accordance with law.

Mazharul Jamil for Petitioner.

Mustafa Lakhani for Respondents.

Date of hearing: 19th February, 1987.

This petition was allowed by a short order for reasons to be recorded.

The facts of the case are that the first respondent filed an application before the learned Additional Controller of Rents (Cantonments), Karachi for ejectment of the petitioner from one of the show rooms situated on the ground floor of Hotel Mehrgn, in respect of which the petitioner was the respondent's tenant at a monthly rent of Rs.1,000. The case was filed before the learned Controller on 29-7-1980 and the summons sent by the learned Controller for appearance of the petitioner on 19-8-1980 were returned unserved by the Bailiff. The summons sent to the petitioner by post were also returned unserved. On 19-8-1980, the learned Controller passed an order for pasting of the summons on the outer gate of the petitioner's premises. However, the petitioner once again could not be served and on 18-9-1980 the learned Controller passed another order directing that the notice be served on the petitioner by publication. Thereafter, the diaries of the proceedings as maintained by the learned Controller show that the notice was finally published in Daily "Morning News", dated 10-10-1980 and on 28-10-1980. Such service was held to be good and further proceedings against the petitioner were declared ex parte and the case was adjourned to 18-11-1980 for ex parte proof. The respondent then filed an affidavit in ex parte proof and thereafter an order for ejectment of the petitioner from the demised shop was passed on 23-12-1980. On 16-3-1982 the petitioner filed an application before the learned Controller for setting aside of ex parte order against him as according to the petitioner he was out of the country from 29th July to 6th September, 1980 and consequently he had no knowledge in respect of the proceedings before the learned Controller.

The petitioner further contended that he had learned for first time about initiation of ejectment proceedings against him on 8-3-1982 and consequently he requested the learned Controller to set aside the ex parte order. This application was however, dismissed by the learned Controller vide his order, dated 3-12-1983, holding that the petitioner's temporary absence from Karachi did not justify setting aside of the ex parte order against him since his other family members were present at Karachi and had in fact refused to receive the notice sent to the petitioner. Besides that the learned controller was of the view that publication of notice in the daily newspaper and pasting of the same on the door or the disputed premises at the time when the petitioner was in Karachi should have given him sufficient notice in regard to the proceedings and consequently he found that the request by the petitioner for setting aside of the ex parte order was not justified.

The petitioner then appealed before the learned District Judge but without any success as his appeal was dismissed and the order of the learned Controller was upheld both on legal as well is factual planks. The learned District Judge held that the service against the petitioner was rightly held to be good by the learned controller and since the petitioner had failed to establish that he had of the country during the entire period from 19-8-1980 to there was no justification for setting aside the ex parte order.

I have heard Mr. Mazharul Jamil, learned counsel for the petitioner and Mr. Mustafa Lakhani, learned counsel for the first respondent.

From the case diary, a copy of which has been filed alongwith the petition, it is clear that only one attempt was made by the learned Controller to effect service of summons on the Petitioner through Bailiff. But after the summons was returned served the learned Controller made no further attempt to get the same served on the petitioner in the same manner, as thereafter attempt was made to serve the petitioner by substituted service. Finally publication of notice in the daily newspaper was ordered and on 28-10-1980 publication of the same in the newspaper "Morning News", dated 10-10-1980 was held to be good service. Be that as it may, but when the petitioner who admittedly was out of the country from 29th July to 6th September, 1980 filed an application before the learned Controller for setting aside the ex parte order the learned Controller refused to accept the request, regarding service of summons by publication as an equally effective mode of service on the opposite party.

Although there is no provision in the Sind Rented premises Ordinance, 1979 prescribing any particular mode of service of summons or notice on the opposite party, but the provisions of order 5, C.P.C. relating to service of summons are usually applied to such proceedings. It appears that both the learned Controller as well as the learned District Judge unnecessarily entered into technicalities in regard to mode of service of summons without realising that the only many proper attempt had been made by the learned Controller to effect service of summons on the appellant. Needless to say that the proper method of service of summons or notice on the opposite party is by getting the same personally delivered to it through the bailiff or any other person appointed in this behalf by the Court. Service by publication or pasting of summons or notice outside the house or place of business of the defendant is usually resorted to when the defendant cannot be served in the ordinary manner. The obvious object behind such service is, so that the defendant may learn about the pendency of proceedings against him either himself or through any other person who might have seen a copy of the summons pasted outside his house or place of business or might have read it in the newspaper. Another object which appears to be behind such a mode of service is that the proceedings may continue and the same may not be defeated merely for the reason that the defendant cannot be served with summons in the ordinary manner. However, whenever the defendant appears before the Court he can always show to the Court that he was not aware of its process and on being satisfied in this regard the Court should always allow the reopening of the case.

From the impugned orders, it clearly appears, that both the learned Controller as well as the learned District Judge found the petitioner's request for setting aside the ex parte order to be un justified solely on the ground that on his own showing he had remained out of the country from 29th July to 6th September, 1980 when the ex parte order was passed by the learned Controller much later. It may however, be pointed out that it was .not so much the fact that the petitioner had remained out of the country which was of paramount consideration by the learned Controller, but what should have been considered was the manner in which the service of summons or' notice was effected on the petitioner. As pointed out above, only a single attempt was made by the learned Controller to effect service of summons on the petitioner in the ordinary manner and thereafter substituted service was ordered. This by no standard can be regarded as proper procedure to be adopted under the given circumstances. Thereafter when the petitioner appeared before the learned Controller with the request to set aside the ex parte order, the learned Controller simply proceeded on the assumption that the petitioner must have had knowledge in respect of the proceedings since at the time of passing of the ex parte order the petitioner was within the country. Such assumption was further based on the fact that the notice sent to the petitioner in regard to the proceedings was pasted on the outer door of his house on 16-9-1980 and also published in the newspaper on 10-10-1980. This assumption however, was not correct as already pointed out above. Consequently, the order of ejectment which was passed against the petitioner without proper service of summons on him suffers from a serious infirmity and the same is clearly without jurisdiction.

This petition is, therefore, allowed and the ex parte order, dated 23-12-1980 and all other proceedings held thereafter by the learned respondents No.2 and 3 are held to be without lawful authority and of no legal effect and the case is remanded to the learned Controller for proceeding in accordance with law after giving proper notice to the petitioner.

S.Q./A--45/K Petition allowed.

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