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First Rent Appeals Nos.597 and 598 of 1986, decided on 11th January, 1987.

---S.19(2)--Default in filing written reply after service notice- Rent Controller, held, had to record findings that a notice had been served on respondent and default in making reply was without any reasonable cause--Unless findings on these two facts were recorded by- Rent Controller, he could not give full effect to subsection (2) of S.19 of Ordinance.

1982 S C M R 570; 1983 C L C 1135 and 1984 C L C 1755 rel.

---Ss.15 & 21--Procedure--Civil Procedure Code, held, not applicable to proceedings under the Ordinance.

---Ss.15 & 21--Limitation Act (IX of 1908), Art. 164--Article 164 of Limitation Act, held, not attracted to proceedings under the Ordinance.

Muhammad Aslam Mirza v. Khurshid Begum P L D 1972 Lah.603 and Manzar Bashir v. M.A. Asghar & Co., P L D 1978 S C 731 rel.

---Ss.15,19(2) & 21--Ejectment proceedings--Rent Controller passed ex parte order in case when tenant in fact was not duly served--Order of Rent Controller, held, was illegal being in violation of principles of natural justice and would be liable to be set aside by Rent Controller in exercise of his inherent power, for in law such power was possessed by every tribunal.--[Natural justice, principles of].

---Ss.15,19 & 21--Ejectment proceedings--Rent Controller passing ex parte order of ejectment against tenant when in fact tenant was not duly served--Rent Controller refusing to set aside the ex parte orders--Order of ejectment set aside and Rent Controller directed to hear application filed by tenant for setting aside ex parte order and decide same on merits and according to law.

S.I.H.Zaidi for Appellant.

Mohammad Alam for Respondent.

Date of hearing: 13th October, 1986.

By this Judgment I intend to dispose of the above two appeals which are directed against common orders dated 30-1-1986 and 13-8-1986 passed by the IInd Senior Civil Judge/Rent Controller, Karachi West, whereby he allowed the eviction application filed .by the respondent against the above appellants.

The brief facts leading to the filing of the above two appeals are that the respondent is the owner/landlady of the house constructed on Plot No.61/L, Sector 11-G,U.P. Society, North Karachi and the appellant Nisar Ahmad Khawaja is tenant in respect of shop No.1 of the said premises on the monthly rent of Rs.450 excluding electric charges, while appellant Shamsuddin is the tenant in respect of shop No.2 of the said premises on the monthly rental of Rs.385.

The respondent filed Eviction Application No.4077 of 1985 against the appellant Nisar Ahmad Khawaja on the ground that her son is jobless and required shop No.1 for personal use and also on the ground of 'handing over its possession to another person unauthorisedly without the permission of the respondent.

The respondent also filed Eviction Application No.4078 of 1985 against appellant Shamsuddin on the ground of bona fide need of the shop in dispute, and also on the ground that the tenant .failed to pay the rent from June 1984, that is, 16 months amounting to Rs.6,160 and also on the ground of subletting. Both the eviction applications were admitted on 10-11-1985 and notices were ordered to be issued on 28-11-1985.

I have perused the diary sheet of both the cases. It appears that notices through bailiff were not issued for 28-11-1985. The notices were issued through post but were returned. As such the cases were adjourned to 17-12-1985.

I have perused the bailiffs report in Rent Case No.4077/85. From perusal of it, it appears that the Bailiff went to serve the notice at the residence of appellant Nisar Ahmad on 16-12-1985 but Nisar Ahmad was not available at his residence and the bailiff was informed that he had gone to Landhi. I have also perused the endorsement of the postman. According to the endorsement he went to serve the letter on 1a-12-1985, 16-12-1985, 17-12-1985 and 18-12-1985. The addressee despite information was not available. As such he was not interested to receive.

I have perused the case diary for 17-12-1985. It appears that the case was adjourned to 19-12-1985 as the A. D. Card was not returned. I have also perused the diary for 19-12-1985 and according to it the case was adjourned to 12-1-1986 and it was ordered for issuance of notice.

I have also perused the report o' the Bailiff dated 4-1-1986 and according to it, the Bailiff went to serve the notice at the residence of the appellant Nisar Ahmed Khawaja alongwith the 'Perokar' of the respondent. According to him the service was effected on the appellant personally after obtaining the signature of the 'Perokar' of the respondent.

The Bailiff was also examined by the Controller on 16-1-1986 and according to his deposition, he effected the service of the notice on the appellant Nisar Ahmad Khawaja. The respondent filed affidavit n ex parte proof on 28-1-1986.

The notice was ordered to be issued for 28-11-1985. The postman of the beat returned the letter with the endorsement the the appellant Shamsuddin was informed.

I have perused the Bailiff 's report dated 27-11-1985. A perusal of his report would show that he went to the house of the appellant and came to know that lie was not present but was available at Nadeem Autos. The Bailiff went to serve him there but the appellant was not available end on enquiry he came to know that he was not available at the Nadeem Autos also. The case was adjourned to 5-12-1985 and then to 12-12-1985 and again adjourned to 19-12-1985. On 19-12-1985 it was ordered that notice be issued through Bailiff for 12-1-1986. I have perused the Bailiff's report dated 4-1-1986. According to it the service was effected on the appellant Shamsuddin on 4-1-1986. The Bailiff was examined on 16-1-1986.

The respondent filed affidavits in ex parte proof on 28-1-1986 and the eviction applications were allowed on 30-1-1986. The appellants were directed to hair over possession of the shops in dispute within thirty days from the order.

The case of the appellants is that after securing the eviction orders on 30-1-1986, the respondent informed them on 12-2-1986 that such orders were obtained and the appellants had to vacate the shops. They approached the office of the Controller and obtained certified copies of the orders and other documents on 4-3-1986 and filed applications on 13-3-1986 for setting aside the ex parte orders passed against them.

The learned Controller after taking into consideration the arguments advanced by the learned counsel for the parties dismissed the applications vide orders dated 13-8-1986.

The appellants being aggrieved against the orders dated 13-8-1986 have preferred separate First Rent Appeals on the grounds disclosed in the memos of appeals.

I have heard the learned counsel for the parties, perused the R & P in both the cases and also gone through the impugned orders.

In order to understand the rival contentions of the learned counsel for the parties, it may be necessary to peruse section 19(2) of the Sind Rented-Premises Ordinance, 1979 (hereinafter called the said Ordinance) which thus reads:-

"(2) Where on the day fixed in the notice for the respondent to file written reply, it is found that the notice has been served but the respondent has failed to file his reply without any reasonable excuse, the Controller may, proceed to make an ex parte order and after such order has been made the Controller shill have no power to rescind such order."

A close analysis of the above reveals that the intention of the legislature was that the Controllers have to keep two facts in mind and give a finding on (1) that the notice has been served and (2) the default in filing of reply is without any reasonable cause. It means that the Controller has to record findings that a notice has been served on the respondent and the default in making reply was without any reasonable cause. I am of the view that unless findings on these two facts are recorded by the Controller, he cannot give full effect to subsection (2) of section 19 of the said Ordinance. In three recent decisions of this Court it has been laid down that unless findings on these two facts are recorded, the Controller cannot give full effect t.) subsection (2) of section 19 of the said Ordinance, (1982 S C M R 570, 1983 C L C 1135 and 1984 C L C 1755).

The other aspect of the case is that the appellants were served on 4-1-1986 and the application for setting aside were not filed within thirty days. The contention of the learned counsel for the appellants is that the applications were competent under the law and the learned Controller ought to have considered the question which the appellants were duly served on 4-1-1986 and they were prevented from appearing in the case for sufficient causes.

On the other hand Mr.Aftab Xlam has submitted that the applications were not competent in law and the applications were rightly dismissed by the learned Controller.

The point for consideration is that whether the application were competent or not.' The learned Controller held that the application were incompetent. The basis of this finding is that they were presented after 30 days from 4-1-1986. It is an admitted position that Civil Procedure Code is not applicable. The said Ordinance is itself silent and no period is prescribed therein. Ifs is also settled law that Article 164 of Limitation Act is not attracted to the proceedings under the said Ordinance. See Muhammad Aslam Mirza v. Khurshid Begum (PLD 1972 Lahore 603). The position has now been finally settled by the latest pronouncement of the Supreme Court in Manzar Bashir v. M.A. Asghar & Co. (P L D 1978 S C 731) where their Lordships have laid down that in a case where the Controller passed an ex parte order against the tenant when in fact he was not duly served, the order would be illegal being in violation of the principles of natural justice and will be liable to be set aside by the Controller in exercise of his inherent power, for, in law such power is possessed by every tribunal.. In this case their Lordships noticed the case of Muhammad Aslam Mirza and approved the majority view as to the powers of the Controller to set aside the order of eviction in exercise of his inherent jurisdiction.

In view of the dictum laid down by the Hon'ble Supreme Court, the applications are competent and both these applications were not decided on merits.

In the result, I allow these appeals and set aside the orders of the learned Controller in appeals before me and direct him to hear the applications filed by the appellants for setting aside the ex parte orders and decide on merits according to law. The parties shall be afforded full opportunity and shall be at liberty to lead evidence in respect of their respective pleas. The record of the case shall be remitted to the IInd Senior Civil Judge/Rent Controller, Karachi West for disposal in accordance with law.

In the circumstances of the case, the parties shall bear their own costs.

M . Y. H . /N-58/ K Appeals allowed.

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