1987 C L C 516

[Karachi]

Before Haider Ali Pirzada, J

Mirza FAROOQ BEG--Appellant

versus

MUHAMMAD KASHIF KAMAL SIDDIQUI--Respondent

First Rent Appeal No. 1129 of 1984, decided on 22nd September, 1986.

(s) Civil Procedure Code (V of 1908)--

---0. V, R. 20--Substituted service of summon requirements--Noncompliance of any one

of requirements--Effect--Provisions of O.V, R. 20, C.P.C. providing three requirements of
substituted service of summons on defendant i.e. (i) by affixing copy of summons on
conspicuous place in court-house; (ii) by affixing copy at conspicuous part of residence
of person sought to be served, and (iii) in some other manner as Court thinks fit; being
mandatory provision, failure of plaintiff to comply with any one requirement thereof,
held, would nullify whole proceedings--Substituted service carried out without affixing
copy of summons in conspicuous place in court-house was bad in law.

Muhammad Samin Jan v. Messrs Ferozsons Laboratories Ltd. Nowshera P L D 1972

Pesh. 135 and Decon Co-operative Bank Ltd. v. Persram Talaram and another A I R 1942
Sind 96 ref.

(b) Civil Procedure Code (V of 1908)--

---S. 144 & 0. IX, R. 13--Sind Rented Premises Ordinance (XVII of 1979), Ss. 21 & 22--
Doctrine of restitution--Reversal or modification of ex parte eviction order--Effect--
Principal of doctrine of restitution is that on reversal or modification of erroneous ex
parte decree or eviction order passed by Court below, there is obligation on party
receiving benefit of such erroneous decree or order to make restitution to other party for
what he has lost--Ex parte eviction order of Rent Controller having been varied by
Appellate Court, was required to be given effect to--Application filed by tenant under S.
144 of Civil Procedure Code (V of 1908) for restoration of possession of disputed
property taken by landlord in execution of warrant of possession, -held, could not be
dismissed in circumstances.

Khalilur Rehman for Appellant

Raja Qureshi for Respondent.

Date of hearing: 22nd September, 1986.

JUDGMENT

This first rent- appeal is directed against the order dated 25-11-1984 passed by the IXth
Senior Civil Judge and Rent Controller, Karachi, whereby he dismissed the application
filed by the appellant for setting aside the ex parte order.

The facts giving rise to this appeal are that the respondent is a joint landlord of Shops
Nos. 6 and 7 in building known as Kashif Villa situated on Plot No. 1-E 14/1,
Nazimabad, Karachi and the appellant is tenant in respect thereof at the monthly rental of
Rs.260 exclusive of electric and other charges. The respondent filed Eviction Application
No. 153 of 1984 against the appellant on the ground of default in payment of rent from
May to December 1983, default in payment of electric charges amounting to Rs.3,409
and also on the ground of personal requirement.

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It seems that the eviction application was admitted on 11-1-1984 and notice was ordered
to be issued for 11-2-1984. A perusal of the diary sheet would indicate that the notice was
returned as unserved. The case adjourned for 29-2-1984. The notice was returned
unserved and the case was adjourned to 20-3-1984. The respondent filed an application
under Order V, Rule 20, C.P.C. praying therein for substituted service. The application
was granted and it was ordered that the appellant be served by substituted service through
(a) pasting on the door of .the premises, (b) by publication in the newspaper and (c) by
registered post acknowledgement due. The eviction application was allowed as stated
earlier. As the appellant did not hand over vacant possession of the shops, the respondent
filed Execution Application No. 74 of 1984. The writ of possession was delivered to the
respondent. The appellant filed an application under Order IX, Rule 13, C.P.C. before the
Controller which was dismissed. The appellant being aggrieved against the above order
has preferred this first rent appeal on the grounds mentioned in the memo. of appeal. Mr.
Khalil-ur-Rehman, the learned counsel for the appellant has contended that the provisions
of Order V, Rule 20, C.P.C. were not complied with in this case. It is advantageous to
reproduce the provisions of Order V, Rule 20, C.P.C. which read as under:-

"20. Substituted service.-- (1) Where the Court is satisfied that there is reason 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 the summons to be served in the ordinary way, the Court shall order the summons
to be served by affixing a copy thereof in some conspicuous place in the court-house, and
also upon 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 in such other
manner as the Court thinks fit.

(2) Effect of substituted service.-- 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 service 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."

A perusal of the above provisions would show that after the Court satisfies itself that it is
a case for substituted service, it shall order the summons to be served by affixing a copy
thereof in some conspicuous place in the court-house. This requirement has not been
shown to have been complied with. It is further required that a copy was also to be
affixed upon some conspicuous part of the house in which the respondent is known to
have resided or carried on business, or in such other manner as the Court thinks fit.
Substituted service has the same effect as personal service. The argument of the learned
counsel foe the respondent is that in this case notice was fixed upon some conspicuous
part of the appellant's shop, published in "Daily Mashriq", dated 14-9-1984 and also the
notice was sent through registered post A. D. and that all these were sufficient
compliance with Rule 20 of Order V of the Code of Civil Procedure. His contention is
that the words "or in such other manner as the Court may think fit" occurring in Rule 20,
sub-rule (1) give sufficient discretion to the Court not to comply with the first condition
as to fixing of summons upon some conspicuous place in the Court house. This to my
mind, is not correct reading of Rule 20. What it means is that the summons must be
affixed in court-house. In addition to that, it should be affixed at they conspicuous part of
the residence of the person sought, to be served or in such other manner as the Court
thinks fit. I am of the humble view that the provisions of Order V, Rule 20, C.P.C. are
mandatory and the failure to comply with any one requirement thereof nullifies the whole
proceedings.

The view which I am taking is in accord with the construction put by the Peshawar High
Court in the case of Muhammad Samin Jan v. Messrs Ferozsons Laboratories Ltd.,
Nowshera P L D 1972 Pesh. 135 and by the Sind High Court in the case of Decon Co-
operative Bank Ltd. v. Persram Talaram and another A I R 1942 Sind 96 on a provision of
Order XXI, Rule 46 which is in pari materia to this provision. Mr. Raja Qureshi the
learned counsel for the respondent has fairly conceded that the provisions of Order V,
Rule 20, C . P.C., are mandatory and have not been complied with in this case.

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The appeal is allowed accordingly and the rent case is remitted to the concerned Rent
Controller who has jurisdiction to proceed with from the stage where the appellant was
declared ex parte. The appellant is allowed to file written reply and the eviction
application shall be decided in accordance with law after affording opportunity to the
parties. The parties shall be entitled to produce evidence. As the matter is delayed for
long, I direct that the eviction application be accorded priority by the Controller and shall
be disposed of within a period of four months from the date of receipt of R & P.

Mr. Khalilur Rehman has submitted that the appellant has filed „n application under
section 144, C . P . C . for restoration of the possession of the shops to him.

It is an admitted position that an order for eviction was passed ex parte on 16-5-1984 and
the respondent took possession of the shops in execution of warrant of possession in
October, 1984. The appellant moved an application under Order IX, Rule 13, C.P.C., for
setting aside an ex parte order of eviction against him. The principle of the doctrine of
restitution is that on the reversal of a decree or order of eviction, the law imposes an
obligation on the party to the eviction application who received the benefit of the
erroneous decree or order of eviction to make restitution to the other party for what he
has lost. This obligation arises automatically on the reversal of modification of the
decree/order of eviction and necessarily carried with it the right to restitution of all that
has been done under the erroneous decree/order of eviction and the Court/ Controller in
making restitution is bound to restore the parties, so far as he can be restored, to the same
position he was in at the rime when the Controller by its erroneous action has displaced
him from.

In my view on a reading of section 144, C.P.C. alongwith section 22 of the Sind

Ordinance, there can be no doubt that inter-parties on an earlier order of the Controller
being varied by an appellate authority, the order of the appellate authority or the varied
order has to be given to and parties to the litigation cannot be heard to plead any excuse.
The position will, however, be different where bona fide third parties are involved.

Thus, the distinction between parties to the original transferee on the other hand must be
kept in mind. Parties to this cannot be heard to raise any objection against compliance of
the appellate decree or order. A party entitled to restitution must be granted that as against
the opposite party in the eviction application or the original litigation. A bona fide
purchaser or transferee stands on different footing. His right being an independent right
cannot be disturbed in equity or in law. Even section 144, C.P.C. does not warrant it. The
Sind Rented Premises Ordinance, 1979 which is a Special Law has to be applied in the
terms of the enactment. The Legislature in its wisdom by enacting section 22 made an
order executable not only against the tenant but all those who are in possession or
occupation of the premises. Section 22 makes the order executable in such manner as
may be determined by the Controller. When an order of eviction is varied in appeal, it is
the appellate order which must be given effect to. I fail to understand how in these
circumstances the appellant's application for restitution could be dismissed.

I direct the appellant to file an application for restoration of possession before the
Controller and the same shall be disposed of at the time of final hearing. In case the
eviction application is not disposed of within four months as ordered, the appellant is
entitled to move the application earlier. In case the eviction application is dismissed, then
the possession of the premises in dispute will be restored to the appellant. I leave the
parties to bear their own costs.

For the above reasons, the First Rent Appeal No. 1129 of 1984 is disposed of in the above
terms.

H.B.T. ----- Order accordingly.

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