Order Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

C. P. No. S – 404 of 2018

 

 

Date of hearing:       26.10.2018.

 

 

M/s T. David Lawrence and Muhammad Tahir Qureshi, Advocates for the petitioner.

M/s Muhammad Ali Napar and Danish Ali Bhatti, Advocates for respondent No.3.

 

O R D E R

 

MUHAMMAD SHAFI SIDDIQUI, J. – This petition is in respect of an ex parte order, followed by a judgment in considering the affidavit in ex parte proof. Since interlocutory order would only be assailed along with final order, therefore, both are merged.

2.         Brief facts are that a Rent Case No.31 of 2016 was filed against the petitioner, and on the solitary notice issued to him through bailiff on 25.10.2016, the service was held good. Bailiff’s statement is as under:

“ I Imdad Ali Bailiff of Ist Senior Civil Court Sukkur states on oath that from 25.10.2016 to 30.10.2016 I went at the given address of opponent / defendant and kept on looking home, and son of opponent namely Shahzad met me and told me that opponent has gone Karachi and he would return on 02.11.2016, and he plainly refused to accept the notice of his father and told that he is not authorized to receive.

The above bailiff stated on oath

Sd/- NAZIR ”

3.         On the basis of this solitary notice it appears that the son of the petitioner has refused to receive the notice as his father / petitioner / tenant was not available at site, and he expected his return on 2nd November 2016. The matter was fixed on 1st November 2016 when the service was held good. Learned counsel for respondent No.3 was enquired as to whether service on son of the petitioner / tenant was a lawful service on the tenant, he was reluctant to answer.

4.         I have heard the learned counsel and perused the record. Surprisingly, the Rent Controller went on to hold the service good on the basis of only one notice issued through bailiff and solitary statement of bailiff too does not show that he served the notice upon the tenant. On this very first attempt of bailiff, the processes were returned unserved, and the Rent Controller should not have held the service good. There were no other means shown whereby service was effected. What convinced the Rent Controller for effecting service on the basis of this first / solitary notice, I am unable to conceive. Only an agent in the absence of party is empowered to accept the service under the law. None of the procedure such as courier, registered post or pasting or publication was followed even once. This order of 1st November 2016 was followed by an ex parte order dated 20th January 2017. When the service itself was defective, no ex parte order or final order on the basis of the report of the bailiff and on the basis of the order holding service could have been passed. The final judgment / order was then passed on 28th February 2017 based on earlier conclusions drawn. He filed an appeal on acquiring knowledge which fact is mentioned in ground No.1 that he was intimated by the Court about passing of the final judgment and decree when he appeared in another matter of specific performance before the same Court.

5.         I have realized that it is only the final order that may be matured to be impugned in an appeal, and all series of interlocutory orders that may lead to the final conclusion of the case, may also form part impugned order and looked into.

6.         The very order whereby service was held good was defective on facts as well as on law, which was followed by an order declaring him ex parte. Both Rent Controller and Appellate Court have failed to consider this aspect of the matter that he was never served lawfully. On the basis of the solitary statement of bailiff, which too could not be considered to have served the notice upon petitioner, further proceedings would not be justified. The very structure and foundation for the ultimate judgment was very weak.

7.         I, therefore, in view of the facts and circumstances, set aside the impugned orders and the order declaring him ex parte dated 20th January 2017. Case is remanded to the Rent Controller to decide the matter expeditiously within four (04) months. Petitioner may file written statement within one (01) week on receipt of notice by the Rent Controller, whereafter proceeding may commence on weekly basis. The rent matter be disposed of with report to the Additional Registrar of this Court. Office to send intimation to the Rent Controller immediately.

8.         The petition stands disposed of along with pending application(s), if any, in the above terms.

 

 

J U D G E

Abdul Basit