Lawyers Directory Listing
Unlock direct contact details for up to 10 lawyers so you can call or WhatsApp the right legal professional and move your matter forward with confidence.
Before Haider Ali Pirzada, J
Haji MUHAMMAD RAFIQ-Appellant
versus
SHAHENSHAH JEHAN BEGUM-Respondent
First Regular Appeal No. 336 of' 1985, decided on 17th December, 1986.
(a) Civil Procedure Code (V of 1908)-
---O. VI, R. 14-Pleadings, signing of by attorney -Expression "sign ed by a person duly authorised by him to sign the same" in O. VI, R. 1.4, C. P. C., held, were not restricted to written authorisation-If authorization was proved, even an oral authorization should be taken as sufficient.
(b) Civil Procedure Code (V of 1908)-
O. IV, R. 1-Plaint-Presentation of plaint may be an act to or in a Court but mere act of signing a plaint, held, would not be an act in or to a Court-Plaint could be presented by any person.
(c) Civil Procedure Code (V of 1908)-
-- O. VI, Rr. 2, 4 & 15 & O. VI1, R. 1.1-Sind Rented Premises Ordi nance (XVII of 1979), S. 15-Pleading-Where a plaint or a rent case was not properly signed or verified but was admitted and entered in register of suits or rent cases, same, held, would not cease to be a plaint or a rent case.
(d) Sind Rented Premises Ordinance (XVII of 1979)---
--S. 15-Civil Procedure Code (V of 1908), Os.VI & VII-Pleadings-- Defects in regard to signature on a plaint or eviction application, held, were technical irregularities relating to matter of procedure-- Eviction application could not be allowed to fail merely for reason of landlord having inadvertently failed to sign it or because of person signing such application being not landlord's attorney within meaning of O. XI, C. P. C.
Khuda Bux and others v. Fida Hussain P L D 1963 Kar. 446 ; Chand Muhammad Ali & Co. v. Dr. Sirajul Haq and 2 others P L D 1972 Quetta 5 ; Ghulam Bahauddin Qureshi v. Mrs. Hawa Bai P L D 1979 Kar. 597 and State Bank of Pakistan v. Jehangir Rustam Kakalia 1984 M L D 1220 rel.
(e) Sind Rented Premises Ordinance (XVII of 1979)---
---- S. 15-Ejectment-Bona fide requirement-Landlady requiring disputed premises to be vacated for her husband and husband appear ing in witness-box and was cross--examined---Failure of landlady to appear in witness-box, held, was not fatal to her case as no prejudice was caused to tenant as such.
(f ) Sind Rented Premises Ordinance (XVII of 1979)-
---S. 15-Bona fide personal requirement-Landlady requiring premises in question for her husband to start his own independent practice as a Structural Engineer--Averments in her eviction applica tion were supported by affidavit filed by her husband who was also cross-examined at length-Irresistible inference that could be drawn was that he had a pressing necessity of occupying premises for purpose of commencing his work-Order of ejectment maintained in circumstances.
Khalique Humayoon for Appellant.
A. Aziz Khan for Respondent.
Date of hearing : 20th October, 1986.
This First Rent Appeal is directed against the order dated 21st Aped, 1985 passed by the VIIIth Senior Civil Judge/Rent Controller, Karachi whereby he allowed the eviction application filed by the respondent and directed the appellant to hand over vacant possession of the premises to the respondent within one month from the date of the order.
The facts leading to the filing of the above appeal are that the respon dent is the owner of the double storeyed building situated on Plot No. 679-C, Central Commercial Area, P.E.C.H. Society, Karachi. The ground floor of the said building was let out to the appellant for a period of 5 years in pursuance of an agreement dated 28-6-1978. The respondent filed eviction application No. 4529 of 1983 on the ground of personal requirement and unauthorised lease, subletting of a portion of the disputed premises to another person who is running a Pan' shop therein. The appellant resisted the eviction application. Husband and attorney of the respondent filed his affidavit-in-evidence in support of the eviction applica tion and examined Muhammad Ameen Excise and Taxation Inspector. The appellant filed his own affidavit-in-evidence in rebuttal. They were cross-examined by the learned counsel for the respective parties.
The learned Rent Controller on the basis of the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties allowed the eviction application on the ground of personal requirement vide order dated 21-4-1985. The appellant being aggrieved against the order dated 21-4-1985 of the VIIIth Senior Civil Judge/Rent Controller, Karachi has preferred this First Rent Appeal on the grounds mentioned in the memo of appeal.
Mr. Khaliq Humayoon learned counsel for the appellant has raised the following contentions :-
(1) Eviction application is not maintainable.
(2) Eviction application is signed by a person who was not authorised under the power of attorney to sign the same.
(3) Landlady was admittedly in Karachi and she did not sign and present it.
(4) Landlady did not appear in the witness-box to give evidence.
On the other hand Mr. A. Aziz Khan, learned counsel for the respondent has submitted that the eviction application is maintainable in law and the order of the learned Rent Controller is in accord with the evidence on record.
I take first three contentions together as the same points are involved. I have perused the original eviction application. This eviction application was filed by the attorney of the respondent. The husband and attorney of the respondent produced general power of attorney alongwith big affidavit-in-evidence. I have perused the power of attorney clause thereof shows that the attorney is authorised to sign and execute all documents on her behalf and to appear before the Registrar or any authority for that purpose. A perusal of clause 13 shows that the attorney is authorised to prosecute or defend any suit, complaint, application, petition or any proceedings whatsoever before any Court or authority as may be necessary or expedient relating to her property and for such purpose to appoint any Advocate, pleader or agent on her behalf to verify or file plaints, applica tions, written statements, memorandum of appeal and to compromise, compound, withdraw and refer to arbitration such legal proceedings in or before any Court or authority and for that purpose the said authority may accept service of any summons, notice, writ, etc. issued against her by any legal authority.
The objections having taken by the appellants on the ground that the eviction application was not properly signed or verified by the respondent. The relevant provisions of the C. P. C. must be borne in mind. They are Order 1V, rule 1, Order VI, rule 14, Order VI, rule 15, Order III, rules 1 and 2 and Order VII, rule 11.
Order VI, rule 15 requires that every pleading shall be signed by the party and his pleader, if any, provided that where party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorised by him.
Order VI, Rule 14 provides that in certain circumstances a pleading may by signed by any person duly authorised by the plaintiff to sign the plaint or to sue on his behalf. The expression "signed by a person duly authoris ed by him to sign the same" need not be restricted to written authorizations. If the authorization is proved, even an oral authorization should tae taken as sufficient and there is no reason to read Order VI, rule 14 as requiring written authorization or a power of attorney. Order III, rule 2 describes who the recognized agents referred to in Order III, rule 1 are.
A bare reading of Order III, rule 1 shows that it only applies to appear ances applications or acts in or to any Court required or authorised by law to be made or done by any party in such Court. The signature on a plaint is not an appearance or application, or act in or to a Court. The presentation of plaint may be an act to or in a Court, but the mere act of signing a plaint would not be an act in or to a Court. A bare perusal of Order IV, rule 1 shows that it merely provides that every suit shall be instituted by presenting a plaint. Order IV, rule 1 does not specify by whom a plaint is to be presented. A plaint can, therefore, be presented by any person.
Order VII, rule 11, C. P. C. which refers to the rejection of a plaint, enumerates only four cases in which a plaint can be rejected but it does not enumerate any of the defects or irregularities referred to in Order VI, rules 2, 4 and 15. It is clear from the provisions contained in Order VI that these Rules relate to procedure. I am of the view that if a plaint or rent case is not properly signed or verified but is admitted and entered in the register of suits or rent cases, it does not cease to be a plaint or a rent case and the suit or eviction application cannot be said to have been instituted merely because of the existence of some defects or irregularities in the matter of signing and verification of plaint or eviction application.
I shall next turn to the authority of decided cases. That defect in regard to signature on a plaint or eviction application are technical irregularities relating to Chatters of procedure.
In Khuda Bux and others v. Fidu Hussain (P L D 1963 Kar. 446) where it was held that proceedings before Rent Controller should not be judged strictly from the point of view of mere technicalities that are observed in law Courts.
The Single Judge of the then High Court of Sind and Baluchistan (Quetta) in Chand Muhammad Ali & Co. v. Dr. Sirajrd Hay and 2 others (P L D 1972 Quetta 5) where it was held a Rent Controller is not a Court and the C. P. C. is not applicable. It was further held "it would be absurd to dismiss an eviction application merely because a landlord had inadvertently failed to sign it or because it was signed on his behalf by an agent who did not hold a general power of attorney from him.
In Ghulam Bahauddin Qureshi v. Mrs. Hawa Bai (P L D 1979 Kar. 597) where it was held that eviction application cannot be allowed to fail merely for reason of landlord having inadvertently failed to sign it or because of person signing such application being not landlord's attorney within meaning of Order XII of Civil Procedure Code, 1908.
In State Bank of Pakistan v. Jahangir Rustarn Kakalia (1984 M L D 1220) where it was held that the person who has signed the application and has given evidence was authorised under Regulation 36 to sign plaints and other documents on behalf of the appellant. It, therfore, seems that he had the authority tai deal with matters under litigation. Additionally a mere commission to sign the ejectment application or if it is signed by an authorised person, will not; make it incompetent.
The eviction application in the instant case is signed by respondent's husband and attorney. The signature of the attorney is, therefore, sufficient.
The husband also admittedly happens to be the attorney of the respondent. The respondent has authorised to file eviction application on her behalf. In any case the appellant paid him rent which was accepted by him. The attorney was authorised to receive the rent front him.
In this view of the matter it is not to decide the question whether Muhammad Rehman was authorised by proper power of attorney to sign and to verify the eviction application as, I have already earlier held that the words "duly authorised" in Order VI, rule 14 need not be restricted to mean authorised by proper written authority or by power of attorney. The objections are therefore overruled.
The other objection of the learned counsel for the appellant is that the landlady herself present in Karachi and she herself did not appear in witness-box. The eviction application was filed on the ground of personal requirement of her husband who wanted to start his independent work. The appellant examined her husband as to the bona fides of his need. In presence of his evidence it is hardly necessary to examine his wife. In the instant case the landlady required the disputed premises to be vacated for, her husband and the husband for whom the premises in dispute was requir-1L ed, had appeared in the witness-box and be was cross-examined. The failure of the landlady to appear in the witness-box was not fatal to the case of the landlady, as no prejudice was caused to the tenant on account of the failure of the respondent to appear as a witness in the case. As such non-examination of the respondent would be of no consequence.
The only other submission of the learned. counsel for the appellant is that the respondent failed to prove the bona fide personal requirement of the premises. The respondent averred in her eviction application that he husband wanted to start an independent work and the premises in the occupation of the appellant most suited to his requirement. Muhammad Rehman the husband and attorney of the respondent filed his own affidavit in support of the eviction application and stated therein that he is highly qualified and experienced civil engineer. He also stated that at the time the premises was let out and at the time of renewal of tenancy for a period of five years he was in service. He was due to retire in April, 1979 and there was possibility of extension in. his service. He further stated that he was trying and expecting some suitable assignment as Adviser under one of the organizations of the United Nations and had then no intention of starting his independent practice and as such the tenancy renewed up to June 1983 and eventually he decided to start his own practice as consulting engineer in Karachi. The attorney described the details in his affidavit and thereafter stated that the location of the premises in question on the ground floor is a matter of additional convenience for him and the prospective clients.
It is pertinent to note that the husband and attorney of the respondent was cross-examined at length and the only suggestion to him is that he did not give details of his qualifications and experience in the eviction applica tion. It is amply proved from his evidence that the premises in question N was required by him to start the practice as a structural engineer. The respondent stated in her eviction application that her husband is a highly qualified and experienced engineer and decided to start his own independent work. She also stated that he served in Government service as an engineer and the premises in question is most suited to his requirement.
After having heard counsel for the parties I am of clear opinion that the appeal must fail on the ground of personal requirement. Learned counsel for the respondent contended that there was sufficient material o before the Controller to show that the respondent did not merely have a desire to occupy the premises in question, but her husband required it in good faith. I find that the respondent had clearly mentioned in her eviction application that she required the premises in question for the purpose of her husband's independent work. If the respondent/applicant had proved that her necessity was bona fide, that the premises which belonged to her was required for establishing her husband's independent work, there could be no question of a mere desire, but it is a case of real requirement or P genuine need. In fact the irresistible inference which could be drawn from the facts is that the respondent's husband had a pressing necessity of occupying the premises for the purpose of commencing his work. The Controller, therefore, could not be said to be in error in allowing her eviction application on this ground.
In the result, this appeal, therefore, must fail and is dismissed but the parties will bear their own costs. The appellant is directed to hand over possession of the present premises on or before 31-3-1987. In case of Q failure to hand over possession on the above date, the writ of possession will be issued without any notice to him.
M. Y. H./5075/K Appeal dismissed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer