KHALID MAHMOOD DAR Versus ZAHIDA RIAZ

ORDER

1. The appellant has challenged the order of the Additional Controller, of Rents, Clifton Cantonment, Karachi whereby order of ejectment was passed against the appellant in respect of premises No.SF‑2 Building No.1, Sea View Apartments Phase‑.V, Defence Housing Authority. Karachi. There is no dispute that this property is situated within the Cantonment area. The office has raised an objection that the appeal is time‑barred as the order was passed on 22‑11‑1987 and the appeal has been filed on 16‑4‑1988.

2. The learned counsel for the appellant has contended that as no proper service was effected the question of limitation will not arise. This contention will be correct, provided it is held that the appellant was not properly served with the notice of ejectment application. In this regard the learned counsel has referred to the various orders passed by the learned Controller and also the record to show in what manner the service was effected. From the record it is clear that when the notice was issued .to the appellant through the bailiff he was not found present but his sister was present and the notice was returned unserved. The second time his sister was present who told the bailiff that she had informed the appellant who was at Lahore and he had instructed her not to accept any notice from the Court. The notices sent through registered post were also returned unserved. According to an endorsement of the postman as the appellant was not available the information was left but nobody came to pick up the letter. Ultimately an application under Order V , Rule 20, C.P.C. was filed and the publication was made in the daily newspaper. Notice by registered post was also sent which was returned unserved. Finally on 22‑11‑1987 the ex parte order of ejectment was passed. In these circumstances we have to examine whether there was any proper service on the appellant. The main contention of the learned counsel is that the provisions of Order V, Rule 20, C.P.C. have not strictly been followed inasmuch as the copy of the notice was not pasted at a conspicuous place of the residence of the appellant. The application under Order V, Rule 20, C.P.C. was made after making several attempts and the notice was published in a newspaper. There is nothing on record to show that notice was pasted at any place. The question arises whether this will invalidate the service of notice. It is well.‑settled that except the provisions mentioned in .the Act the Code of Civil Procedure is not applicable to the proceeding before the Controller but in the interest of justice principles of Order V, Rule 20, C.P.C. can be pressed' in service. As no effective service in the normal manner could be made in spite of the efforts made through the bailiff as well as by registered post A/D, it was published in a newspaper. In my view as Order V, rule 20, C.P.C. is not applicable its strict compliance is not required. The learned counsel has referred to 1987 C L C 516 where it was held that the provisions of Order V, Rule 20, C.P.C. should be strictly complied and unless all the three modes of service are adopted the entire proceeding will be vitiated. In my humble view in case under the Rent Ordinance/Act where C.P.C. is not applicable if substantial compliance of Order. V, Rule 20, C.P.C. has been made the proceeding cannot be vitiated. Merely because the notice has not been pasted on any conspicuous" place it will not invalidate the entire proceeding. Under Order V, Rule 20, C . P. C . substituted service is to tie effected by pasting the summons at any conspicuous place of .residence or business of the defendant or such other mode as the Court thinks proper. Therefore, if the Court adopts the other alternative manner viz. publication it satisfies the provisions of Order V., Rule 20, C.P.C.

3. The next contention of the learned counsel is that the learned Controller did not have the jurisdiction to entertain and decide the ejectment application. This contention is based on the. ground that the disputed premises is situated within the Defence Housing Authority which is an authority and therefore in terms of Section 3(b) of the Cantonments Rent Restriction Act, 1963 the Controller has no jurisdiction. Section 3(b) reads as follows:‑

4. Nothing contained in this Act shall apply to‑‑

(a) ..........................................................

(b) any property owned by the Federal Government, any Provincial Government, Railway, Port Trust or Cantonment Board and any property owned, managed or controlled by any other local authority under the administrative control of the Federal Government or of any Provincial Government."

5. The fact that the property in dispute is situated in Defence Housing Authority does not mean that it is a property of any local authority. The jurisdiction of the Controller of Cantonment does not extend to any property owned by Federal Government, Provincial Government, Railway or Port Trust or owned and controlled by any C local authority. The property in dispute is a residential premises owned by the respondent and not by any local authority. Therefore, on this account the jurisdiction of the Controller cannot be challenged. The appeal is patently time‑barred and is therefore dismissed in limine. The appellant is allowed two months' time to hand over vacant possession of the disputed premises to the respondent.

6. H . B . T . / K‑108 / K Appeal dismissed