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First Rent Appeal No.1001 of 1983, decided on 17th November, 1986.

‑‑‑Ss. 2(f) (j), 15 & 21(1)‑‑Relationship of landlord and tenant‑‑Proof in absence of any tenancy agreement between parties‑‑Mere entries in Excise and Taxation Department's Register in respect of premises in dispute, held, would be of little value for purpose of establishing relationship of landlord and tenant between parties.

P L D 1967 Pesh. 380; P L D 1978 Kar. 19; 1981 C L C 1743 and 1982 C L C 1770 ref.

‑‑‑0. V, R. 20‑‑Sind Rented Premises Ordinance (XVII of 1979), Ss.15 & 21(1)‑‑Substituted service‑‑Requirements‑‑Non‑compliance of‑ Effect‑‑Provisions of 0. V, R. 20, C.P.C, according to which substituted service of summons could be effected by affixing copy of summons in conspicuous place in Court house and also by affixing same upon conspicuous part of residence or business premises of person sought to be served, being mandatory, failure to comply with any one of the requirements held, would nullify whole proceedings‑‑Copy of summons having not been affixed accordingly, ex parte eviction order passed by Rent Controller against tenant, would be liable to be set aside in circumstances

Muhammad Samin Jan v. Messrs Ferozsons Laboratories Ltd. And 2 others P L D 1972 Pesh. 133; Deccan Co‑operative Bank Garnishees v. Pars Ram Talaram and another A I R 1942 Sind 96; Yousuf Ali Muhammad Aslam Zia P L D 1958 S C 104 and Mansab Ali v. Amir and 3 others P L D 1971 S C 124 ref.

Zafar Alam Khan for Appellant.

Shaikh Ejaz Ahmad for Respondent No. 1.

Sardar Muhammad Ishaque for Respondent No. 2.

Dates of hearing: 8th and 17th September, 1986.

These are two First Rent Appeals under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter called the said Ordinance against the order, dated 27‑11‑1983 passed by Xth Senior Civil Judge/Rent Controller, Karachi, in Rent Case No. 572 of 1969 ordering the eviction of the appellants from the premises in question and directing them to hand over the vacant possession of the premises in dispute within three months from the date of the order.

Since the common question of fact and law is involved in these two appeals, I, therefore, intend to dispose of these two appeals by this judgment.

The facts leading to the filing of the above appeals are that the respondent claims to be the owner and landlord of commercial plot No. 156‑A, New No. 9/MAC II‑S‑130 at Mahmoodabad, Karachi. The case of the respondent was set out in the eviction application is that M. Hakeem (appellant in F.R.A. No. 20 of 1984) was tenant at the monthly rent of Rs.30 and he had gone somewhere after subletting to Fateh Gul (appellant in F . R . A . 1001 of 1983) . The respondent filed above eviction application on the ground of default and subletting. It seems that M. Hakeem was not served personally as such he w ,s served through substituted service. He was declared ex parte. Fateh Ali was served in 'he matter and resisted the eviction application.

The respondent examined himself in support of the eviction application besides one witness Ibdul Saeed Khan. The appellant Fateh Gul filed his own affidavit‑in evidence in rebuttal and he was cross examined by the learned counsel for the respondent. The learned Controller allowed the evictior application and ordered eviction of the appellants from the premises in question as stated earlier. The appellants have now come in separate appeals against the said order.

I have heard the lei rued counsel for the parties and perused the R & P of the rent case and have also gone through the impugned order.

I have perused the eviction application wherein the respondent averred that the respondent is owner and landlord of commercial plot No. 156‑A, New No. 9/61AC.S/11‑S‑130, Mahmoodabad, Karachi and M. Hakeem is the tenant while appellant Fateh Gul is sub‑tenant.

I have also perused the written statement filed by appellant Fateh Gul wherein he stated that Fateh Gul is in possession of plot No. l/MAC‑1‑S.80/A, Mahmoodabad whereas the respondent is in possession of adjoining plot of land and the appellant M. Hakeem was never the tenant of the respondent as alleged. The appellant Fateh Gul also denied that "the opponent No. 2 is the sub‑tenant in respect of the said premises". The appellant also stated that he purchased the property in dispute from M. Hakeem.

The respondent appeared in the witness box and stated that the name of M. Hakeem appears as a tenant in the P.T.I. register. The respondent also produced true copy of an extract from P.T.I. register showing M. Hakeem as a tenant (Exh. 2). The respondent also produced receipts of KMC Tax as (Exh. 3/1 to 3/3). The respondent also produced six receipts of KMC (Exh. 4/1 to 4/6). The respondent deposed that the plot in dispute belongs to KMC and he raised construction thereon. The respondent also deposed that the premises in question was let out to M. Hakeem in the year 1960 at the monthly rent of Rs.30. Accordingly to his deposition the said M. Hakeem tendered rent till 1964 and in the end of 1964 the respondent found Fateh Gul in occupation of the premises in question. The respondent deposed that M. Hakeem sublet the premises in question to Fateh Gul without his permission. The respondent further deposed that he thought Fateh Gul to be a relation of M. Hakeem and he had demanded rent from him to which he replied that he had purchased the premises in question.

The respondent admitted in his cross‑examination that the tenancy was in writing and the tenancy agreement lost and displaced. The respondent to a suggestion in cross‑examination replied that there were heavy rains in which a well collapsed and all his papers including tenancy have been destroyed. The respondent to a suggestion in cross‑examination stated that tenancy agreement was attested by Mazharul Hasan Kirmani. The respondent to a further suggestion stated that the tenancy agreement was executed in the month of May, 1960 and he does not remember the name of the petition writer but it was one rupee non‑judicial stamp paper.

Abdul Saeed Khan deposed in his examination‑in‑chief that M. Hakeem was carrying on business on the plot of the respondent and he had given the rent of the premises in question for considerable period. The witness admitted in his cross‑examination that the tenancy agreement was not executed in his presence and the respondent had informed him about written rent agreement. The witness also admitted that Fateh Gul was in possession of the premises in question since last seven and eight years. His deposition was recorded on 14‑11‑1973. The witness also admitted that he is father‑in‑law of the respondent.

As against the above evidence appellant Fateh Gul filed his own affidavit‑in‑evidence and reiterated the same facts as stated in his written statement. He produced agreement, dated 4‑11‑1965 as Exh. 0‑1/1. This agreement was executed between him and the appellant M. Hakeem. A perusal of it would show that the appellant Fateh Gul purchased the property in question from appellant M. Hakeem for total sale consideration of Rs.500 only. Fateh Gul denied the suggestion to cross‑examination that M. Hakeem had sublet the premises in question to him, and the agreement Exh. 0.1/1 according to him has been prepared to defend the rent case.

I have perused the impugned order. The learned Controller observed that the documents produced by the appellant Fateh Gul are not conclusive proof for the ownership of the property and these documents cannot be helpful to the appellants. The learned Controller held that P.T.I. Form Exh. 2 shows that M. Hakeem is tenant in the premises. According to him this document has not been rebutted by appellant Fateh Gul. The finding of the Controller is that M. Hakeem is tenant of the respondent and the appellant Fateh Gul was stepped into the shoes of M. Hakeem. The learned Controller has also found that the appellant had committed default in payment of rent.

Mr. Zafar Alam, the learned counsel for the appellant has contended that the entries in the Excise and Taxation Department are not relevant for the purpose of establishment the relationship of landlord and tenant between the parties.

On the other hand Mr. Shaikh Ejaz Ahmed has submitted that the entries in the P.T.I. Form are relevant as supporting value for the purpose of deciding relationship of landlord and tenant.

In the present case, the respondent examined himself besides his father‑in‑law Abdul Saeed Khan. I find that this witness has not supported the respondent. The only person who remains is the respondent. The respondent is supported by the P.T.I. Form and the receipts for payment of taxes. The respondent cannot be believed in this respect. In that case the entries in the P.T.I. Form can hardly be of any value to him in view of the decisions of superior Courts Reliance is placed on P L D 1967 Pesh. 380, P L D 1978 Kar. 19, 1981 C L C 1743 and 1982 C L C 1770.

The tenancy agreement was not produced by the respondent The respondent deposed that there was a tenancy between him and the appellant M. Hakeem. The respondent also deposed that the tenancy agreement was lost or misplaced. The loss of the tenancy agreement has not been proved. The oral statement of the respondent could not be accepted in evidence. There is, however, no evidence to prove the execution of the tenancy agreement. A.W. Abdul Saeed Khan only stated in his evidence that he was not present at the time of the execution of the tenancy agreement and he also deposed that he was informed by the respondent. His evidence is hear‑say evidence. The respondent did not care to produce the witness and the scribe.

In this view of the matter, the order under appeals cannot be sustained and therefore, I allow the appeal No. 1001 of 1983 and set aside the order with no order as to costs and remand the case to the, concerned Rent Controller for disposal in accordance with law.

Mr. Zafar Alam, the learned counsel for the appellant in F.R.A. 20 of 1984 has contended that the appellant had no notice of the rent case. Mr. Shaikh Ejaz on the other hand has submitted that the appellant was served through substituted service and he has knowledge about the pendency of the case against him.

The present case can be examined from this aspect that is that under section 13(2) of the 1959 Ordinance, an order of eviction can be passed only "if the Controller after giving the tenant a reasonable opportunity of showing cause against the application is satisfied that the tenant has failed to pay rent and sublet the premises".

I have perused the bailiff's report, dated 16‑4‑1969 and it shows that he could not locate the address of the appellant. I have also perused the bailiff's report, dated 26‑8‑1969. According to this report he could not serve the appellant due to paucity of the time. I have also perused the bailiff's report, dated 21‑5‑1969. According to this report the appellant was not available at the given address. I have also perused the bailiff's report, dated 19‑11‑1969. According to this report he could not locate the address of the appellant because the numbers of the plots are not searlised and are not visible at some places, as such he returned the notice unserved. The respondent filed an application under Order V, Rule 20, C.P.C. wherein he prayed that the appellant M. Hakeem be served through substituted service through affixation on the tenement or through publication in the newspapers. The learned Controller passed order on this application on 12‑8‑1969 and by this order he directed that service by substituted service and also by publication in newspaper. The respondent deposited publication charges on 3‑9‑1969 and notice was published in newspaper, dated 4‑11‑1969.

It seems that the notice was not affixed on the tenement as ordered by the Controller. It is advantageous to reproduce the provisions of Order V, Rule 20, C.P.C. which read as under:‑‑

'20. Substituted service.‑‑(1) Where the Court is satisfied that) there is reason to believe that the defendant is keeping out the' way for the purpose of avoiding service, or that for any other, reason the summons cannot served in the ordinary way, the, Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court‑house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other as the Court thinks fit.

(2) Effect of substituted service.‑‑Service substituted by order of the Court shall be as effectual as if it had been made on the' defendant personally.

(3) Where service substitued time for appearance to be fixed.‑‑Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case;, may require."

A perusal of the above provisions would show that after the Court satisfies itself that it is a case for substituted service, it shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court‑house. This requirement has not been shown to have been complied with. It is further required that a copy was also, to be affixed upon some conspicuous part of the house in which the respondent is known to have last resided or carried on business, or in such other manner as the Court thinks fit. Substituted service has the same effect as personal service The arguments of the learned counsel for the respondent is that in this case notice was published in Daily Business Post, dated 4‑11‑1969 and that this alone were sufficient r compliance with Rule 20. His contention is that the words "on in such other manner as the Court may think fit" occurring in Rule 20 Sub‑rule (1) give sufficient discretion to the Court not to comply with the first condition as to affixing of summons upon some conspicuous place in the Court house. This, to my mind, is not correct reading of Rule 20. What it means is that the summons must be affixed in Court‑house. In addition to that, it should be affixed at the conspicuous of residence/or place of business of the person sought to be served or in such other manner as the Court thinks fit. I am of the humble view that the provisions of Order V, Rule 20, C.P.C. are mandatory and the failure to comply with any one requirement thereof nullifies the whole proceedings.

The view which I am taking is in accord with the construction put by the Peshawar High Court in the case of Muhammad Samin Jan v. Messrs Ferozsons Laboratories Ltd. and 2 others P L D 1972 Pesh. 133 and by the Sind High Court in the case of Deccan Co‑operative Bank Garnishees v. Pars Ram Talaram and another .A I R 1942 Sind 96 on a provision of Order XXI, Rule 46 which is in pari materia to this provision. It seems that the provisions of Order V, Rule 20, C.P.C. are mandatory and have not been complied with in this case.

Resulting by the ex parte order passed against the appellant and also the eviction order, deserved to be set aside because if the foundation gives way, the super‑structure cannot stand. Reliance is placed on the case of Yousuf Ali v . Muhammad Aslam Zia P L D 1958 SC 104. In the case of Mansab Ali v. Amir and 3 others P L D 1971 S C 124 the Hon'ble Supreme Court led the following dictum:‑‑

"It is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction."

These appeals are allowed accordingly and the impugned orders are set aside and the rent case is remitted to the concerned Rent Controller who has jurisdiction to proceed with from the stage where the appellant was declared ex parte. The appellant is allowed to file written reply and the eviction application shall be decided in accordance with law after affording opportunity to the parties. The parties shall be entitled to produce evidence. As the matter is delayed for long, I direct that the eviction application be accorded priority by the Controller and shall be disposed of within a period of four months from the date

of receipt of R & P.

H.B.T./5059/L Appeals allowed.

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