2015 C L C 620
[Balochistan]
Before Muhammad Kamran Khan Mulakhail, J
LA GUARDIA GROUP OF COMPANIES through Assistant Manager Terminal ----
Appellant
Versus
ABDUL NAFEY and another ----Respondents
First Appeal from Order No.48 of 2013, decided on 30th April, 2014.
(a) Civil Procedure Code (V of 1908) ---
----O. V, Rr. 20, 12 & O. IX, R. 6(1)(a) ---Limitation Act (IX of 1908), Arts.164 & 181 ---
Constitution of Pakistan, Art.10- A---West Pakistan Urban Rent Restriction Ordinance (VI of
1959), S.13--- Ejectment of tenant ---Ex parte order, setting aside of ---Limitation ---Substituted
service---Scope ---Principle of "audi alteram partem" ---Applicability ---Eviction petition did not
show address of tenant due to which service could not be effected---Procedur e for substituted
service was not adopted in letter and spirit ---Alternate and substitute mode of service was
required to be adopted when notices could not be served through ordinary mode of service ---
Service on agent could be considered effective if it fulfilled the stipulation contained in O.V,
R.12, C.P.C.---Service, in the present case, was not properly effected ---Trial Court did not
adhere to the mandatory provision of law ---Limitation would be governed under Art.181 of
Limitation Act, 1908 in case of non- service of notice of an adjourned hearing ---Limitation would
be governed under Art.164 of Limitation Act, 1908 when ex parte order was passed under O.IX,
R.6(1)(a), C.P.C.---Appeal filed by the tenant was well within time ---Lis between the parties to
be adjudicated on merits and no one should be non- suited on the basis of technicalities ---Fair
opportunity of hearing should be provided to the contesting parties ---Law did not permit that
dispute be decided on technicalities ---Justice could only be done af ter hearing both the parties to
decide the lis on merits alone ---Ex parte judgment passed by the Trial Court was set aside and
case was remanded for its adjudication on merits after providing fair opportunity of leading
evidence to the parties ---Appeal was accepted in circumstances.
Mst. Afzal Begum v Y.M.C.A. through its General Secretary PLD 1979 SC 18, Messrs
Rehman Weaving Factory (Regd.) v Industrial Development Bank of Pakistan PLD 1981 SC 21
and Fida Hussain v Muhammad Rafique Shah 1987 SCMR 845 r el.
(b) Limitation Act (IX of 1908)---
----Art. 164---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13---Eviction of
tenant ---Ex parte order, setting aside of ---Limitation ---Period of thirty days for filing an
application to set aside ex parte order had been provided which would start from the date of
decree or where summons was not duly served, when the applicant had knowledge of the decree.
(c) Administration of justice ---
----Lis between the parties should be adjudicated on merits and no one should be non- suited on
the basis of technicalities.
(d) Maxim ---
----"Audi alteram partem" ---Meaning ---No one, should be condemned unheard.
Attaullahh Langove for Appellant.
Mehmood Sadiq Khokar and Sohail Ansari for Respondent No.1.
Date of hearing: 4th April, 2014.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. --- This appeal under section 15
of the Balochistan Urban Rent Restriction Ordinance -VI of 1959 ("Ordinance") is directed
against the ex parte judgment dated 3rd A pril 2013 ("impugned judgment") passed by the learned
Civil Judge -V/Rent Controller, Quetta against the appellant and respondent No.2.
2. The succinct facts giving rise to instant appeal are that the respondent No.1/applicant
Abdul Nafe filed an Eviction Application against the appellant and respondent No.2, averring
therein, that he is recorded owner of the property vide Mutation No.36 bearing Khasra
Nos.48/310- 317/321 measuring 5- Rods 36- Poles situated in Mahal Karez Baleli, Mauza Karezat
Baleli, Tappa Baleli, Tehsil Saddar, District Quetta (property in question), which consists upon
two rooms and is being used as trucks/trailers terminal under the name and style of "Spinzar
Terminal Parking" located near Qadir Petroleum, Bypass Road, Quetta. The propert y in question
was rented out to the respondents against monthly rent of Rs.2000 which was payable on the first
day of every succeeding month. The rent was being paid till January, 2011 meanwhile, due to
differences, which arose between the parties no rent was being paid till date. On 8th December,
2011 the property in question was set -at-fire, and number of vehicles were burnt. The differences
between the parties were remained unresolved and from February, 2011 till filing of the eviction
application the ap pellant and respondent No.2 consecutively defaulted towards the payment of
monthly rent, therefore, the eviction of respondents was sought with further direction to pay the
arrear of outstanding rent calculated to the tune of Rs.36,00,000 (Rupees thirty si x hundred
thousands).
3. Notices upon the appellant and respondent No.2 could not be served, effectively;
therefore, service was shown to have been affected on pointation, which statedly served upon
watchman of the terminal (property in question). Therea fter, due to non- appearance vide order
dated 28- 12-2012 they were proceeded against ex parte. The ex -parte evidence was produced and
recorded on 21- 2-2013 and finally on 3- 4-2013, an ex parte judgment was passed against the
appellant and respondent No.1 wi th direction to surrender the vacant possession of property in
question in favour of applicant/respondent No.1. They were further directed to pay the arrears of
monthly rent calculated to the tune of Rs.36,00,000 subsequent to eviction order, an execution
application was filed, when fresh addresses of parties were provided and notices of execution
application were served upon the appellant through courier service on their permanent addresses
at Karachi.
4. The learned counsel for the appellant contended t hat the delay in filing of appeal was
occasioned due to non- effective service and knowledge of the appellant. However, he referred to
the Civil Miscellaneous Application filed under section 5 of the Limitation Act for condonation
of delay and urged that si nce the appellant was not aware about the proceeding, therefore, delay
if any can be condoned under section 5 of the Limitation Act, 1908. He added that the appellant
was totally unaware about the eviction application, however, one Abdul Hameed son of Haji
Abdul Rehman had also filed eviction application against the appellant and respondent No.2,
wherein addresses of Karachi were mentioned in the application and on service of notice in said
proceedings, besides service in execution proceeding, the appellant came to know that execution
application of respondent No.1 in the instant case is pending against them. He also referred to an
abstract of the property record along with copy of eviction application, which shows the
ownership of one Abdul Hameed, who soug ht eviction of the appellant and respondent No.2
from the same premises.
He further contended that the appellant has no concern with the property in question nor
any tenancy agreement was ever executed between the parties. He stated that the ex parte
judgment was obtained intentionally by providing the wrong address of the appellant. He added
that the appellant company is based at Karachi but in eviction application his permanent address
was shown at Quetta. He stated that astonishingly the notices in eviction application were served
upon the watchman of the terminal, but in an execution proceeding the Karachi's addresses were
provided. The manner and procedure adopted by the respondent No.1 is based on mala fides and
all proceedings initiated in hierarch y of rent controller was motivated with male -gaining and
undue harassment. Learned counsel referred to copy of FIR No.130 of 2011 registered with
Kharot Abad, Police Station, Quetta on 9- 12-2011 under sections 3, 4, 5 of Explosive Substances
Act, 1908 read with section 436, 427, P.P.C. and section 7 of the Anti -Terrorism Act, 1997 and
stated that the premises in question is in supervision of concerned police station prior to
registration of referred to FIR. He further explained that when the premises in que stion is set at
fire by the unknown persons, the incident was reported by Head Constable Atta Muhammad
(1184/HC) of Police Station Kharot Abad, Quetta, because the shipments of North Atlantic
Treaty Organization ("NATO") via road were under serious threats when the unknown assailants
started putting fires to the NATO containers and due to Salala Check Post incident the NATO
supply was stopped/ disconnected in all over the country. Therefore, purported terminals of
NATO supply containers were under the super vision and protection of local police. He added
that though the appellant has no concern with the rented property but at the same time the ex
parte judgment of the competent court of law under the jurisdiction of Rent Restriction
Ordinance is in field. Whe rein the learned Rent Controller directed the appellant and respondent
No.2 to surrender the vacant possession of property in question, as well as, to pay the alleged
outstanding arrears in lieu of monthly rent calculated to the tune of Rs.36,00,000. The l earned
counsel while assailing the impugned judgment urged that the manner and procedure adopted by
the learned Rent Controller is oblivious of prevailing law. The learned counsel further contended
that the notice of eviction application was statedly served upon a watchman of the terminal and
the mode of substituted service was not adopted, which course is not permitted under the law. He
finally prayed for setting aside of impugned judgment with further prayer that the matter may be
remanded back to the lea rned trial court for adjudication on merits.
5. Mr. Mehmood Sadiq Khokar, learned counsel for the respondent No.1 challenged the
maintainability of the appeal and stated that the appeal was barred by time which was required to
be filed within 30 days from passing of impugned judgment and same has been filed with a delay
of about 48 days, for which appellant is bound to explain the delay of each and every day, which
he could not explain, therefore, the appeal is not maintainable being barred by time. He further
contended that the appellant was well aware about the proceeding pending before the learned
Rent Controller as the notices were served upon watchman of the terminal who was under direct
employment of the appellant. Learned counsel urged that the orde r passed by learned Rent
Controller is in accordance with law, therefore, does not require any interference by this court.
He prayed for dismissal of appeal.
6. I have heard the learned counsel of respective parties and have gone through the relevant
record. The contention of learned counsel for the appellant is worth considering as the perusal of
eviction application reveals that initially the terminal/property in question's address was provided
as a permanent abode of appellant/respondent No.1 and endorsement upon the notice dated 26-
12-2012 shows that the same was served upon one Ejaz (Chowkidar) of the terminal while the
copies of courier receipts dated 11- 12-2012 do not contain the signature of the appellant nor the
service report of courier compan y shows the effective service upon the appellant. Copy of
eviction application and abstract of revenue record appended with the memo. of petition reveals
that in respect of same subject matter and same property one Abdul Hameed being
landlord/owner on stre ngth of tenancy of the appellant and respondent No.2 sought their eviction
from the same property. Therefore, contention of the learned counsel for the appellant carries
more substance because the eviction application filed by respondent No.1 does not show the
address of the appellant and respondent No.2, therefore, due to non- effective service it cannot be
held that the service effected upon the Chowkidar of the terminal could be termed as service
upon the appellant and respondent No.2. The manner and proc edure adopted by the learned trial
court was a clear departure from the prevailing law, when the procedure for substituted service as
laid down in Order V, Rule 20, C.P.C. was not adopted in letter and spirit. The learned trial court
was under legal obliga tion that when notices could not be served through ordinary mode of
service on given addresses of the appellant then alternative and substitute mode of service was
required to be adopted. However, service on agent can be considered effective when it fulfil s the
stipulation contained in Rule 12 of Order V, C.P.C., which being relevant is reproduced
hereeunder: ---
"12. Service to be on defendant in person when practicable or on his agent.--- Whenever it is
practicable, service shall be made on the defendant in person, unless he has an agent empowered
to accept service, in which case service on such agent shall be sufficient."
Admittedly the person namely Ejaz, who was shown to be the watchman of the appellant
was neither empowered nor shown to have been i n employment of the appellant then the learned
trial court, was under legal obligation to adopt the procedure as laid down in Rule 20 of Order V,
C.P.C., which stipulates that:
"Substitute service. --- (1) Where the Court is satisfied that there is reaso n to believe that
the defendant is keeping out of the way for the purpose of avoiding service, or that for any other
reason the summons cannot be served in the ordinary way, the Court shall order for service of
summons by --
(a) affixing a copy of the sum mons at some conspicuous part of the house, if any, in which
the defendant is known to have last resided or carried on business or personally worked for gain;
or
(b) any electronic device of communication which may include telegram, telephone,
phonogram, telex, fax, radio and television or
(c) urgent mail service or public courier services or
(d) beat of drum in the locality where the defendant resides; or
(e) publication in press; or
(f) any other manner or mode as it may think fit.
Provided t hat the Court may order the use of all or any of the aforesaid manners and
modes of service,
(2) Service substituted by order of the Court shall be as effectual as if it had been made on
the defendant personally.
(3) Where service substituted time for appearance to be fixed. Where service is substituted
by order of the Court, the Court shall fix such time for the appearance of the defendant as the
case may require [which shall not ordinarily exceed fifteen days.]"
The question of proper service is of significant importance in the instant case. Where the
defendant/respondent evades service or cannot be served in the ordinary way or refused to accept
service or has not been heard for a long time and the service cannot be effected in the ordinary
manner the court shall order that he be served through substituted mode of service under the
provision supra. Admittedly in the instant case the learned trial court did not bother to adhere the
mandatory provision of law and wrongly placed reliance on service sta ted to have been affected
upon a person namely Ejaz, whose status being an authorized agent was neither established nor
recognized by the appellant. Therefore, service in the instant case was not properly affected and
the learned trial court was under legal obligation to adopt the other modes of service. Admittedly
the appeal was filed beyond the prescribed period of thirty days of limitation, therefore, the
appellant with apprehension and under the impression filed an application under Section 5 of
Limitation Act, 1908 ("the ACT") for condonation of delay.
7. When considering the plea for condonation of delay in filing of the appeal, no cavil is left
to the proposition as held by the Hon'ble apex Court that in a case of non -service of notice of an
adjourned hearing the limitation would govern under Article 181 of the Act, but where an ex
parte decree was passed under Order IX, Rule 6(1)(a), C.P.C. the limitation will be governed
under Article 164 of the Act. The referred to Article of the Act provides, "pe riod of thirty days
for filing an application by a defendant, for an order to set aside a decree passed ex parte, from
the date of the decree or, where the summons was not duly served, when the applicant has
knowledge of the decree".
Admittedly, in the instant case the appellant obtained a certified copy of impugned
judgment on 30th May, 2013 and filed instant appeal on 11- 6-2013 appended with C.M.A.
No.604 of 2013 under section 5 of Limitation Act, 1908 for `Condonation of Delay' for filing of
the appeal if any. The contention raised by the appellant mainly revolves around the 'date of
knowledge', and the said contention was supported by an affidavit. The affidavit submitted by
the appellant was not controverted by means of a counter affidavit nor was the date of knowledge
of an ex parte decree disputed in any manner. The contention of the appellant finds further
support from the facts on record, when in Eviction Application his permanent abode was shown
at Quetta, but in an Execution Application his perm anent residence was mentioned in Karachi by
way of providing fresh addresses.
Therefore, I am of the considered view that the limitation for setting aside an ex parte
decree would run from a date of knowledge, which in the instant case starts from the r eceipt of
notices in the Execution Application, therefore, the appeal filed by the appellant is well within
time. Reliance in this behalf is placed upon a reported judgment of the Hon'ble Supreme Court in
Mst. Afzal Begum v. Y.M.C.A. through its General Se cretary reported in PLD 1979 SC 18,
Messrs Rehman Weaving Factory (Regd.) v. Industrial Development Bank of Pakistan PLD
1981 SC 21 and Fida Hussain v. Muhammad Rafique Shah 1987 SCMR 845.
Keeping in view the dictum laid down by the Apex Court, the rule s of prudence require
that the lis between the parties shall necessary be adjudicated on merits and no one shall be non-
suited on the basis of technicalities. This is a well defined principle of law as enumerated in the
well known maxim "Audi alteram parte m" (no one should be condemned unheard), therefore,
instead of defeating the course of justice by means of ex parte order and judgment the rule of
priority demands and principle of administration of justice requires that a fair opportunity of
hearing shall be provided to the contesting parties. At this juncture it is worthwhile to observe
that the newly added Article 10 -A of the Constitution of Islamic Republic of Pakistan, 1973 ("the
Constitution"), inserted by constitution (18th Amendment Act) 2010 provid es:---
"[10-A. Right to fair trial. --- For the determination of his civil rights and obligations or in any
criminal charge against him a person shall be entitled to a fair trial and due process.]"
The referred to Article is included in part II of chapt er 1 of the Constitution of Islamic Republic
of Pakistan, which relates to the fundamental rights, thus it clearly manifests that the law never
permits that dispute between the parties is to be decided on technicalities but to promote the
advancement of justice and justice can only be done after hearing both the parties to decide the
lis on merits alone. Thus, the manner and procedure adopted by the trial court not only offended
the prevailing procedure of law but is also a clear departure from the afore -referred constitutional
provision.
In view of above discussion this appeal is accepted and the ex parte judgment dated 3 -4-
2013 passed by the learned Civil Judge -V, Quetta is hereby set aside. The case is remanded to
the trial court for its adjudication o n merits after providing fair opportunity of leading evidence
to the parties.
AG/5/Bal. Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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