MUHAMMAD ASLAM Versus TAUFIQ SAEED

1. This is an appeal arising out of the order passed by the Rent Controller in Rent Case No.336/1986 on 25‑1‑1987, rejecting the application of the present appellant for setting aside the ex parte decree. The facts are that the present respondent had brought the ejectment case against the present appellant on the ground of default. The record of the case shows that on 5‑10‑1986, the learned Rent Controller ordered the notice to be served through publication in the newspaper as well as by affixation and the hearing was adjourned to 28‑10‑1986. The record also shows that the notice was published in an Urdu daily 'INQILAB' of 16‑10‑1986, but neither summons were issued nor the same were affixed on the door of the appellant's residence or on Court Notice Board. However, one Suleman Junejo, Advocate, appeared in the Court on 28‑10‑1986 and gave undertaking to file Vakalatnama for the appellant /opponent, but remained absent thereafter, and the Rent Controller ultimately on 5‑1‑1987 held the service good and ordered the case to proceed ex parte and an ex parte decree was passed on 25‑1‑1987. The present appellant filed an application for setting aside the said decree on the ground that he was never served with the notice and that he had never engaged the said counsel, Mr. Suleman Junejo, and that any statement made by the said counsel in the Court was an unauthorised one and would not bind the present appellant. Mr. Ghulam Ghous, learned counsel for the respondent, has argued that the service through newspaper is due service and it should have been taken to be sufficient for passing any consequential order against the present appellant. I cannot subscribe to the said contention of the learned counsel in view of the above facts. Even otherwise, it is settled law that service through publication and newspaper can be held to be good service unless rebutted by the other side and in the present case, an affidavit has been sworn by the present appellant to this effect. Moreover, as the record shows no summons were .issued for the said date of hearing nor the same were affixed on the outer door of the appellant's residence or the Court Notice Board as ordered by the Rent Controller on 5‑10‑1986 1 am inclined to hold that the appellant was not properly served and would allow the application of the present appellant moved for setting aside the ex parte decree and set aside the same.

2. The case is remanded to the Court of IV Senior Civil Judge and Rent Controller, Karachi, East, to proceed in accordance with law. The parties will appear before the Rent Controller on 2nd April, 1989. Let the record be sent immediately.

3. Mr. Ghulam Ghous, learned counsel for the respondent, has emphasised that the appellant be directed to deposit the arrears as well as current monthly rent in the Court. It is directed that the learned Rent Controller will pass such order in accordance with law at the earliest after giving an opportunity to the appellant to file his written statement. Since this is an old case, the Rent Controller is directed to complete the case within six months. The appeal stands disposed of in terms of the above order. However, there will be no order as to costs.

4. H.B.T./M‑725/K Case remanded.