HIGH COURT OF SINDH AT KARACHI
F.R.A. No.05 of 2007
JUDGMENT
Date of hearing: 18.12.2008 and Re-hearing on 06.02.2009
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Appellant: M/s Pak Junaid Flour & General Mills (Pvt) Ltd. through Mr. M.M. Aaqil Awan, Advocate.
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Respondent: Dara Feroze Mirza through Mr. Qadir H. Sayeed, Advocate.
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MUNIB AHMED KHAN,J.:- This FRA has been filed against the order dated 14.07.2008 passed by the Additional Controller of Rent, Clifton Cantonment, Karachi, in Rent Case No.45/2006, whereby the application of the appellant filed under Order 9 Rule 13 read with Section 12(2) CPC has been dismissed.
The controversy between the parties as well as the contents of the order impugned in this appeal are mentioned specifically in that very order, which is reproduced as under:-
“ Petitioner alongwith counsel present. Respondent’s counsel present. The respondent’s counsel filed an application under Order IX Rule XIII r/w 12() & Section 151 CPC stating therein that the petitioner has got ejectment order from this Court on the sole ground of default in the payment of rent. It is further contended in the above said application that the notice of this Court has never been served on the respondent and that no notice has ever been served on the registered office of the respondent situated in Korangi. I have gone through the proceedings and record of this Court. The ejectment order was not passed on the ground of default but the same was an ex parte order. The notices were sent on both the addresses of the respondent i.e. 1) M/s Pak Junaid Flour & General Mills (Pvt) Ltd. 424 Main Ibrahim Haydari Road, Korangi Karachi and on the tenement i.e 2) 54, 18th Street, Phase-V, D.H.A. Karachi on both the addresses notice could not be served on the respondent as he was not available. Notice was also sent through TCS. Notice thereafter was pasted at the tenement in the presence of two witnesses and so also notice was published in daily “Nawa-e-Waqt” issue dated 04.06.2006. After adopting all possible modes of service, the service on the respondent was held good and case was fixed for filing of written statement on 24.06.2006, 05.07.2006 and 19.07.2006 but none came up from respondent side. As such prior to ex parte order all possible steps were taken to serve the notice on the respondent, therefore I find no element of fraud in the proceedings of this case. This Court has no power to reopen the case which has finally been decided, under the provisions of the Cantonments Rent Restriction Act, 1963. In view of above discussion I dismiss the application under Order IX Rule XIII r/w 12(2) & Section 151 CPC. The application is disposed of accordingly. File be consigned to record.”
The learned counsel for the appellant has contended that the Rent Controller failed to take all possible steps to serve the notice of the ejectment application upon the appellant, therefore, there was element of fraud and eviction order dated 05.08.2006 was illegal in nature and was to be set aside and that the substituted service ordered by the Rent Controller was not a requirement of law without compliance of proper modes for service and that, in the circumstances, when only mode of service was by way of pasting and publication, the appellant would have been provided an opportunity of hearing. Learned counsel submits that, according to the record of the Court, which is available in the shape of Bailiff’s report, the guard of the appellant intimated that the appellant was out of city but instead of taking further steps, pasting was ordered after only one attempt, which would not have been and since the appellant was away from the place, therefore, pasting and publication could not be noticed and that the above mode can only be adopted when there is a proof that an addressee is avoiding to receive the summon. Learned counsel has further argued that the appellant is a limited company and has not been sued properly in terms of Civil Procedure Code. On the above contention, learned counsel has referred PLD 1967 Lahore 1138; PLD 1968 Lahore 792; PLD 1984 SCMR 1305; PLJ 1989 Lahore 499; PLD 1981 Lahore 659; NLR 1989 Civil 397; PLD 1996 SCMR 1703; NLR 1987 Civil 291; 1993 SCMR 226; PLD 1971 SC 124; PLD 1994 Peshawar 95; PLJ 1987 Karachi 140; 1970 SCMR 130; and PLJ 1994 Karachi 2254. He has further argued that even the alleged ground of default was not available as the appellant had made payment of due rent and on this account alone the rent case would have been re-opened as the very basis of default was not available. He submits that the matter has not been decided on merits as eviction has been ordered on the ground of default, which was not available at the time of filing of rent case nor afterwards and that the finding of Rent Controller that he has no power to re-open the case is contrary to law, therefore, the impugned order be set aside and case be remanded for re-hearing. He has further pointed out legal flaw in the tenancy agreement as the same is not registered and argued that its terms and conditions are not binding. In this respect, he has referred PLJ 1985 Karachi 37; PLJ 1986 Lahore 76; PLD 1976 SC 781; PLD 1977 Karachi 221; and 1993 SCMR 200. He has also agitated that the respondent wants to sell the property as there was some proof in the shape of photocopy of sale agreement.
The respondent filed counter affidavit and learned counsel submitted that the appeal is barred by limitation as the eviction order was passed on 05.08.2006 while the appeal has been filed on 24.02.2007 and that case of the respondent is for default as well as personal need while two years have passed from the passing of the order. In the said counter affidavit, the learned counsel for the respondent has given the history of payment, mentioned the issue of default and correspondence, which is not relevant here in this appeal as the instant appeal has been filed against the order on application under Section 12(2). It has been stated that the appellant had full knowledge about the proceedings in view of the bailiff’s report dated 11.05.2008 as the notice was pasted and service was also effected in the newspaper through publication. He submits that all available modes, which include bailiff, TCS, pasting and publication, with interval of time, were attempted but the appellant failed to appear, therefore, the Rent Controller was right in ordering eviction by his order dated 06.08.2006. He has further disputed the alleged sale agreement, which appellant has claimed to have obtained by which the respondent was intending to sell the property. It has been stated that before the Rent Controller no such agreement was presented and same is afterthought having forged signatures. Learned counsel to support his arguments has referred 2008 SCMR 635; PLD 1970 SC 196; and PLD 1977 Peshawar 80. Learned counsel has further argued that the respondent, in the ejectment application mentioned two addresses i.e. one of rented premises and another of office of the tenant but appellant was not inclined to attend the Court and that the rent controller is a mere tribunal and CPC in stricto senso is not applicable but even otherwise the rent controller in the instant case has followed due requirement and tried his best to serve the appellant but the factual position recorded in the order shows that service was avoided deliberately.
After hearing the learned counsel and perusal of record, the issue in respect to the objection of non-registration of the agreement is taken first. As far as the argument of the learned counsel for the appellant in respect to the non-registration of the agreement is concerned, it will be worth mentioning that the appellant itself is the signatory and beneficiary of that agreement. Through the said agreement, it entered into the premises and followed the terms and conditions therefore it is now estopped under the law to challenge its own deeds. Even otherwise, non-registration of the agreement cannot negate the contract between the parties while it may have effects towards the monetary liability to fulfill the deficiency towards payment of registration fee etc. In such a situation, the argument at this later stage is nothing but approbation and reprobation keeping in view the conduct of the appellant, hence cannot be entertained. On the other aspects, it appears that there was some strained relation between the parties on the issue of late payment or acknowledgment of rent, which strained relation would have kept both the parties on their heels and they would have been more vigilant towards action by either of the party. In the instant case, as recorded by the rent controller in his order, all the required efforts were made by him towards the service and notices were not only issued on the rented premises but on the office of the appellant as well but service could not be effected despite pasting of the notices, and publication, notwithstanding the fact, that the bailiff was collecting information from the employees in respect to the concerned official of the appellant which, of course shows that the bailiff approached the officials of the appellant company and left some intimation in this respect. Keeping in view the factual position involved in this case as well as gist of the order, I find that the authority quoted by the learned counsel for the respondent i.e. 2008 SCMR 635 squarely falls upon the facts of this case. In the said authority on the issue of service, Hon’ble Supreme Court has recorded as follows:-
“ According to the report of Process-Server a copy of notice was affixed on the abode of the petitioner. It maybe noted that the petitioner has not disputed the address furnished by the respondent in the ejectment petition was not correct or notices were sent on wrong addresses. All the notices through ordinary process, by registered post and through publication were sent on the same address i.e. 271-A, Street No.6, Cavalry Ground, Walton Lahore Cantt. Thus the petitioner was served through all modes of services provided under the law and orders, dated 9.1.2007, whereby the petitioner was proceeded ex parte, and 5.6.2007, through which petitioner’s application for setting aside order, dated 9.1.2007 was dismissed, are not open to any exception.
The learned Single Judge has rightly held that the copy of Post Receipt No.593 shows that the notice was issued to the petitioner and the A.D. receipt is available on record. Additionally, the publication was made in the newspaper Nawa-i-Waqt, of its print, dated 22.12.2006, which newspaper undoubtedly has a nationwide circulation. Thus, to our mind the petitioner was properly and legally served through all the possible ways of service provided under the law and no fraud or forgery was committed by the respondent. More over, petitioner’s plea about knowledge of ex parte order through his cousin as narrated in the application also does not sound to any reason.”
The above quoted authority fully supports the case of the respondent while the several authorities cited by the appellant do not controvert the latest authority nor squarely cover the factual position involved. In such a situation, this petition has no force and is dismissed.
Karachi:
Dated: JUDGE