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‑‑ S. 13 ‑ Ejectment application through attorney ‑,‑ Power of attorney‑Marginal witnesses to power of attorney appearing before Rent Controller and testifying execution of power of attorney and signatures of landlady ‑ Attestation of power of attorney by Magistrate or Notary Public held, not obligatory.

Shafique Metal Works and 3 others v. The Bank of Bahawalpur Ltd., Gujranwala P L D 1973 Lah. 33 and Malik Sajawal Khan v. The Deputy Commissioner, Sargodha P. L D 1968 Lah. 527 ref.

Munir Hussain v. Mst. Mehr‑un.Nisa P L D 1982 Kar. 71 distinguished.

‑‑‑ S. 13‑Ejectment‑Default‑Contention that as landlady received rent personally and due to her non‑appearance as witness petitioner deprived of right to cross‑examine her to establish payment of rent Petitioner alleging payment of rent to landlady through his wife but not examining wife to support his contention‑Held, since petitioner not examining his wife it was not obligatory for landlady to appear personally to contradict assertion of petitioner..‑ Concur rent finding of fact. regarding petitioner's default in payment of rent‑Not without lawful authority.

Mansoor Ahmad v. Z. H. Khawala P L D 1976 Kar. 526 ref.

‑‑ S. 13‑Two separate portions rented out to tenant at different occasions ‑ Single ‑ Ejectment petition for. two portions, held competent.

‑‑ Art. 199‑Constitutional jurisdiction‑Finding of fact recorded rightly or wrongly by a tribunal /functionary having jurisdiction in matter ‑'Held, cannot be challenged in constitutional jurisdiction. [Finding of fact].

Muhammad Hussain Munir and others v.‑‑Sikandar and others P. L D 1974 S C 139 and Muhammad Sharif and another v. Muhammad Afzal Sohail and others P .L D 1981 S C 246 rel.

Mian Nisar Ahmad for Petitioner.

M. Dilawar Mahmood for Respondents.

Date of hearing : 31st March, 1982.

A bungalow bearing No. 303 situated at Shadman Colony, Lahore, is owned by Mst. Arifa Qayyum, respondent No. I. A portion of this bungalow was rented out by the said respondent to the petitioner is November, 1975 at a monthly rent of Rs. 1,000. Subsequently, another portion of the same bungalow was rented out to the petitioner at a monthly rent of Rs. 900.

2. In February, 1979 respondent No. 1 acting through her attorney namely Mr. Hamid‑ul‑Makki filed ejectment proceedings, against the peti tioner seeking his eviction from the aforesaid two portions of the bungalow on the grounds of default in payment of rent and causing of .damage to the tenanted premises.

3. The petitioner denied the allegations regarding default is payment of rent and causing of damage to the portions in his occupation as tenant. and thus resisted the ejectment petition.

4. The learned Controller framed the following issues :‑

(1) Whether the respondent has defaulted in payment of rent If SO for which portion and for what period '

(2) Whether the respondent has damaged the premises in his own occupation and thereby diminished the value of the bungalow If so to what extent

(3) Whether the petition has been filed by a validly authorized person

(4) Relief.

5. The petitioner as well as respondent No. 1 led evidence before the Controller on the above issues. On the basis of the parties' evidence, issues Nos, I and 3 were decided in favour of respondent No. 1 the landlady while issue No. 2 was found in negative. Consequently, by his order dated 5th October, 1980 Controller directed eviction of the peti tioner from the tenanted premises allowing him two months' time for vacat ing the same.

6. The petitioner feeling aggrieved of the Controller's order preferred an appeal and the learned Appellate Authority, viz.' the Addi tional District Judge, Lahore, vide his judgment dated 28th February, 1981 dismissed the appeal.

7. The petitioner has impugned the afore‑mentioned orders of the learned Controller and the learned Appellate Authority through the present constitutional petition.

8. The main contentions raised in the writ petition by the petitioner are that bulk of the rent was paid to respondent‑ No. 1 personally and. therefore, it was obligatory for her to come in the witness‑box so that she could be subjected to cross‑examination. The findings whereby peti tioner, has been held to be defaulter in payment of rent. in the circum stances, are unlawful and erroneous. The other main contention of the petitioner is that two separate portions of bungalow No. 303 were rented out to him by respondent No. I on different occasions, therefore, joint proceedings for eviction of the petitioner from the said two portions by way of one ejectment petition were not legally competent. On the basis of these two points, the constitutional petition was admitted to regular hearing.

9. Mian Nisar Ahmad, learned counsel for the petitioner has, in the first instance; vehemently argued that attorney of' the respondent/landlady was not duly appointed /authorized attorney inasmuch as the power of attorney was attested by an Oath Commissioner and not by any authority empowered to attest the power of attorney. He (according to learned counsel) could not, therefore, file ejectment proceedings against the peti tioner nor he could act on her behalf. It transpires from the copy of the power of attorney on the record of the present constitutional petition that it. is not attested by any Oath Commissioner as contended by the learned counsel for the petitioner. It is signed by the respondent/landlady and attested by two marginal witnesses. The‑said marginal witnesses appeared before the learned Controller and testified to say that in their presence the landlady executed the power of attorney in favour of Mr. Hamid‑ul- Makki. The learned counsel for the petitioner has not been able to cite any law or authority to suggest that it was obligatory that a power o attorney must be attested by a Magistrate or a Notary Public. It has, however, been held in Shafique Metal Works and 5 others v. The Bank Bahawalpur Ltd., Gujranwala (P L D 1973 Lah. 33), that defective signing or presentation of plaint by a person not holding power of attorney was not violative of any specific provision of law and did not render the plaint void or nullity. Similar view was taken in Malik Sajawal Khan v. The Deputy Commissioner, Sargodha (P L D 1968 Lab. 527). Reliance on behalf of the petitioner has been placed on Munir Hussain v. Mst. Mehr‑un‑Nisa (P L D1982 Kar.71), wherein it has been held that special power of attorney cannot be said to be executed if it was not attested either by Oath Commissioner or by Magistrate or Notary Public, and when the attesting witnesses were also not produced to identify the signatures of the Principal. This authority is distinguishable on facts from the instant case, inasmuch as in the present case, as already observed, the marginal witnesses to the power of attorney appeared before the Controller and duly testified that in their presence the power of attorney was executed in favour of Mr. Hamid‑ul‑Makki and was signed by respon dent No. 1.

10. It has been next urged on behalf of the petitioner that rent prior to July, 1978 was received by the respondent/landlady personally and. thereafter it was deposited in the Bank in her account; the number of account having been provided by the lady herself. It has been argued that she has failed to come into the witness‑box and, therefore, the petitioner had been deprived of the right to cross‑examine her to establish the pay ment of rent. It has further been urged that the rent deposited in Bank in the landlady's account could not be adjusted towards the rent of previous months. The petitioner while appearing as his own witness before the Controller stated that he paid rent to the landlady through his wife. He has, however, not examined his wife to support this contention. The Controller as well as the Appellate Authority have recorded the concurrent findings of fact holding that the petitioner was a defaulter in payment of rent. In Manzoor Ahmad v. Z. H. Khawaja (P L D 1976 Kar 526), it has been ruled that personal attendance of plaintiff was not necessary for deciding a case. As already observed, the petitioner alleged payment of rent to the landlady through his wife but he has ‑ not examined his wife, therefore, it was not obligatory for the landlady to appear personally to contradict this assertion. It cannot, therefore, be said that while arriving at a concurrent finding of fact with regard to default in payment of rent, the learned Controller and the learned Appellate Authority have acted without lawful authority.

11. The learned counsel for the petitioner frankly conceded that the landlady‑ could competently file a single ejectment petition in respect of two portions of the bungalow rented out by her to the petitioner.

12. As a matter of fact a finding of fact recorded by Tribunal functionary having jurisdiction in the matter cannot be impugned by invoking the constitutional jurisdiction of the High Court because a Tribunal hav ing jurisdiction in a matter can competently decide the matter rightly or wrongly. It cannot be said that the decision is without lawful authority In Muhammad Hussain Munir and others v. Sikandar and others (P L D 1974 S C 139), it has been held that a Tribunal having jurisdiction to decide a matter is competent to decide it rightly or wrongly and mere fact that decision is incorrect does not render the decision as without lawful authority. It was further ruled that High Court in exercise of writ jurisdiction was not com petent to interfere with order of a Tribunal on purely equitable considera tions. In Muhammad Sharif and another v. Muhammad Afzal Sohail and others (P L D 1981 S C 246), it has been found that mere fact of another conclusion being possible on evidence adduced did not matte it a case for interference in exercise of constitutional jurisdiction.

13. In the light of what has gone above, the Writ Petition is dismissed with no orders as to costs.

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