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First Rent Appeal No. 849 of 1982, decided on 5th July, 1987.

---Ss.15 & 21(1)--Person alleging to be attorney of landlord filed ejectment application on behalf of landlord without producing any power of attorney duly executed in his favour by said landlord--Such person legally being incompetent to sign and verify ejectment application for and on behalf of landlord, initiation of ejectment proceedings right from their very inception, held, were not maintainable--Non inclusion of such plea in writ-ten-statement would not debar; a party to raise the same at appellate stage.

P L D 1982 Kar.71; 1.985 M L D 116; 1980 S C M R 29; 1982 CLC 1761 ; P L D 1984 S C 12; 1972 S C M R 262; P L D 1976 Kar.862 and 1975 S C M R 464 ref.

---SS. 2 (e),15 & 21(1)--Person not claiming himself to be rent collector oil behalf of landlord, filing of ejectment application against tenant on behalf of such landlord by such person, held, would not be competent.

1985 M L D 116; 1980 S C M R 29; Mst. Shaukat Sultana v. Mst. Zohra Bi 1982 C L C 1761 and PLD 1984 S C 12 ref.

---Ss.15 & 21(1)--Filing of ejectment application by a person not empowered by landlord by executing any power of attorney in that respect, being improper, illegal and void ab initio, entire proceedings culminating in passing of ejectment order, held, were unsustainable in law--Entire proceedings adopted before Rent Controller having been declared void ab initio by High Court other contention with regard to default in payment of rent, raised by parties, was refused to be dealt with in circumstances.

Niazi Abdul Kfialiq for Appellant.

Suleman Kassam for Respondents.

Date of hearing: 1st March, 1987.

One late Essabhoy son of Abdullah Hussain Quettawala, the predecessor-in-interest of the respondent through his attorney, Sirajuddin, had filed an ejectment application against the appellant in respect of tenements No.1,3 and 4 on Plot No.K-11/23, known as Quettawala Compound at Chakiwara Road, Karachi, on the grounds (1) default in payment of rent for the period from February 1971 to August 1971 at the rate of Rs.29.87 per month, (2) unauthorised additions and alterations in open space attached to the said premises and for subletting the tenements No.1 and 4 on high rents.

2. The Appellant contested the said rent case by filing a written statement wherein she denied all the allegations made in the application. With regard to the default in payment of rent she averred that the respondent allowed the accumulation of rent with ulterior motives and in order to create so-called default and thereby seek her eviction. It was the deceased respondent who did not care to collect the rent though it was offered to him on several occasions. Upon his constant failure to collect the rent the appellant sent a money order for Rs.149.35 on 29-6-1971 being the rent for February 1971 to June 1971 but the deceased-respondent refused to accept the same. The appellant thereupon filed a Rent Misc. Appln. No. 45/71 in the Court of 2nd Senior Civil Judge, Karachi, and deposited a sum of Rs.209.09 in the Court being the rent from February, 1971 to August 1971 and continued to deposit the same in court till the filing of the written statement. During the pendency of the case Essabhoy, the original owner, died. An application under Order XXII, rule 3, C P C dated 5-4-1979 was presented by his three sons, namely, Abid, Shabbir and Abbas for substitution of their names as applicants in place of Essabhoy.

3. The learned Rent Controller framed the following issues:

"(1) Whether the opponent committed wilful default in payment of rent

(2) Whether the opponent has sublet the case premises

(3) Whether the opponent made addition and alteration in the premises without permission of applicant which has impaired the value and utility of the premises

(4) What should the order be "

and after recording the evidence of the parties and hearing their advocates answered the issue No.1 in the affirmative and the two other issues No.2 and 3 in the negative. The ejectment application was accordingly allowed and the appellant was directed to handover the vacant possession of the premises in dispute to the respondents within a period of two months by his judgment dated 22-4-1982.

However, the appellant-tenant has filed this first rent appeal against the said order, under section 21 of the Sind Rented Premises Ordinance, 1979.

4. Mr. Niazi A. Khaliq, learned counsel for the appellant, raised the following contentions before me.

(i) That Sirajuddin, the alleged attorney of the respondents, did not produce the power of attorney executed in his favour by the respondents and hence the ejectment application presented under his signatures and verified by him was not maintainable in law. In this connection reliance was placed on a case reported in P L D 1982 Kar.71;

(ii) That the amended ejectment application does not disclose the name of the applicants and on this score also it is not maintainable;

(iii) That the only witness examined on behalf of the respondent was the same alleged attorney, namely, Sirajuddin, and hence his statement on oath without filing the power of attorney was of no legal effect;

(iv) That the rent was duly tendered firstly by money order on 29-6-1971 and then by depositing the same in court through a Rent Misc. Appln. No. 45/71 filed in the Court of 2nd Senior Civil Judge at Karachi. A sum of Rs.209.09 being rent from February to August 1971 was deposited in court on 25-8-1971 and the rent for the subsequent months is being regularly deposited there. Besides the rent of February, 1979, the rent for the other months was tendered within the statutory period and hence there was no default on the part of the appellant. It was further reiterated that the Rent Controller failed to consider the effect of failure to produce the power of attorney and hence the impugned order is bad in law.

5. Mr.Sulaman Kassim, learned counsel for the respondents, on the other hand, submitted:

(i) That no objection was taken in the written statement against the filing of the application under the signature of the attorney of the respondents and as such it was not open to the appellant to raise this plea for the first time at appellate stage;

(ii) That Sirajuddin is the Rent Collector and hence he falls within the definition of "landlord" as contained in section 2(e) of the Ordinance as has been held in 1985 M L D 116, 1980 S C M R 29; 1982 C L C 1761;

(iii) That mere non-filing of the power of attorney could not non-suit the respondents. For this proposition he placed reliance on PLD 1984 S C 12;

(iv) That the consequences flowing from non-deposit of rent on due dates did not cease to exist by remitting the arrears of rent by money order or depositing it in court before the ejectment application was presented. In support of his contention he placed reliance on the decisions reported in 1972 S C M R 262, P L D 1976 Kar. 862 and at page 1231 of the same report;

(v) That even if the respondents had refused to accept the rent the appellant was under a legal obligation to tender the same in every successive month as held in 1975 S C M R 464.

6. In reply, Mr. Niazi A. Khaliq, learned counsel for the appellant submitted that the application in the instant case was presented by a person who claimed to be the attorney of the respondent and hence the failure to produce the power of attorney was fatal to the adoption of the proceedings. He also submitted that the appellant's evidence on the point of remittance by money order was not questioned in cross-examination.

7. Having heard the arguments of the learned counsel for the parties and after going through the record and proceedings of the learned Rent Controller I. find that the first above-noted contention of Mr. Niazi A. Khaliq is well-placed. The case relied upon by him does lend support to his case. In that case the. maintainability of the ejectment application filed by the landlady was assailed on the ground that it was neither signed nor verified by her but it was signed, verified and presented by the Mirza Mohammad Yousuf, as her special attorney, on the basis of Special Power of Attorney which was brought on the file of the trial Court. The power of attorney was found to be not authorising the attorney to sign, verify and present the ejectment application. The learned single Judge of this Court held that the ejectment application was not validly instituted for and on behalf of the original applicant, namely, the landlady. In that case, it may further be observed, the power of attorney brought on record was held to be not properly executed. In the instant case no power of attorney has at all been presented although Sirajuddin, who has signed and verified the application for ejectment and also filed his affidavit-in-evidence on behalf of the respondent, has claimed to be the attorney of the deceased-applicant as well as of the present respondents who are successors-in-interest. In this view of the matter, it is held that Sirajuddin was not legally competent to sign and verify the ejectment application for and on behalf of the respondents and, consequently, the initiation of ejectment proceedings right from the very inception was not maintainable in law.

Now I proceed to consider the other contentions in the light of the case-law cited at the bar.

8. The contention of the learned counsel for the respondents that failure to mention in the written statement about the non-existence of power of attorney debars the appellant to raise this plea at the appellate stage is without substance. Once it was mentioned in the application that the person signing it was the duly appointed attorney of the respondents then it was for the respondents to establish the said alleged fact notwithstanding the absence of any objection from the appellant. Similarly the contention that landlord as defined in section 2(e) of the Ordinance includes a rent collector is without merit in the facts of the instant case inasmuch as their attorney, Sirajuddin, had not claimed himself to be the rent collector of the respondents in the ejectment application. It was specifically mentioned that he is the legally constituted attorney of the applicants. In the case reported in 1985 M L D 116 the application was signed by the owner/landlord whereas the rent collector appeared as witness on behalf by the landlady. In the instant case the application for ejectment has even been signed and verified by Sirajuddin, the alleged legally constituted attorney and not as rent collector of the landlords/respondents. This case, therefore, does not support the contention of the learned counsel.

9. The facts of the case reported in 1980 S C M R 29 were that the property was owned by Abdur Rahim and Abdul Ghafoor son of Haji Abdur Rahman but the lease deed was signed on their behalf by their father. The eviction application was filed by the owners but it was dismissed on the ground that they were not the landlords as the lease deed was executed by the father and hence the sons could not be treated as landlords. The second eviction application was then filed by the father on the grounds of subletting and bona fide requirement of landlord for erection of a building. It was also dismissed by the Rent Controller. With regard to the ground of construction it was observed by the learned Rent Controller that the requisite sanction in this behalf had been obtained by the sons of the respondents. And as it was not in the name of the father-applicant, therefore, the condition laid down in section 13(2)(vi) of the West Pakistan Urban Rent Restriction Ordinance, 1959, was riot satisfied. The issue of subletting was perhaps not seriously pressed. The applicant-father filed an appeal which was allowed by the first appellate authority. The tenant carried second appeal to the High Court. It was held by the High Court on the strength of section 13(2)(vi) of the Ordinance that in view .of the definition of the word "landlord" contained in section 2(c) thereof the father being entitled to receive rent on behalf of his sons was a landlord. The judgment of the lower appellate court directing the eviction of the tenant was thus affirmed. The tenant thereupon filed Petition for Special Leave to Appeal. The Supreme Court held as under:-

" Regarding the second point which undoubtedly is a technical one, it needs to be observed that in addition to the considerations which weighed with the learned lower appellate Courts, it cannot be ignored that the definition of landlord contained in .section 2(c) of the Ordinance is very wide. An owner who is entitled to receive rent would undoubtedly be a landlord under the said Ordinance, but a person mentioned in the definition -who is competent to receive rent on behalf or for the benefit, of the aforementioned landlord would also be the landlord."

This case, therefore, is also distinguishable on its own facts.

10. In 1982 C L C 1761 also the facts were altogether different. In that case the landlord had filed an application for ejectment on the ground of personal bona fide requirement of the premises for her son. The landlord did not examine her son for whose benefit she required the flat in question. The tenant's contention was that the failure on the part of the landlady to examine the said son was fatal to the application. Ajmal Mian, J, after referring to some reported decisions held:-

"(v) From the above-cited and discussed cases, it is clear that the question as to whether non-examination of a landlord himself or his child or children for whose benefit he requires the premises is fatal or not will depend on the facts of each case. A landlord is supposed to support his application of personal requirement by putting himself into the witness-box and to subject himself to cross-examination. However, if he can show some sufficient reason for non-appearing in person, the failure on the part of the landlord in such case will not be fatal. In the present case the respondent being a widow could not have been expected to appear in person and, therefore, her failure not to appear cannot be fatal to the application. "

11. The next contention of the learned counsel for the respondents is equally fallacious inasmuch as no power of attorney has been produced to establish that Sirajuddin was duly constituted attorney. The case reported in P L D 1984 S C 12 on which reliance has been placed has, in my opinion, no relevancy to the facts of this case.

12. Since I have reached the conclusion that the eviction proceedings adopted before the learned Rent Controller were ab initio void I am not called upon to deal with and dispose of the other contention raised by the parties' representatives with regard to the default in payment of rent. It is further pertinent to know that in the memorandum of this appeal the appellant has specifically taken a ground "that the alleged attorney filed the original application and the alleged amended application but he failed to disclose any authority from any of the landlords and-as such the main ejectment application was not maintainable" yet the respondents failed to produce, even at this stage, the power of attorney, if any, which they had executed in favour of the so-called attorney Sirajuddin who had signed, verified and presented the ejectment application and also filed his affidavit-in- evidence. The failure on the part of the respondents clearly goes to prove that they had never appointed Sirajuddin as their attorney and as such he was not legally competent to present the ejectment application on their behalf under his signatures and verification in the capacity of their "legally constituted attorney".

13. In 'tie aforesaid facts and circumstances I do not feel hesitant to hold that the filing of the ejectment application was abinitio improper, illegal and void and, consequently, the entire proceedings culminating in the passing 'of the impugned order are unsustainable in law. The impugned order is therefore hereby set aside. The parties shall, however, bear their own costs.

H. B. T./R-29/K Appeal allowed.

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