' AZIZULLAH M. MEMON, J.- Heard learned counsel for the petitioners and respondent No.3.
2. Respondent No.3 is admittedly tenant of the petitioner No. 1 in respect of the Shop bearing No.l, "Okhai Memon Jama Masjid Trust": ejectmetn application bearing No.201 of 200i was filed by the petitioners against the respondent No.3 on the ground of expansion of the place of ablution (Wazukhana). Tenant/respondent No.3 filed his written denying the said need of the petitioner No.l to have the said shop for such a purpose by means of his ejectment from the said shop.
3. The Rent Controller, after going through the evidence produced by the parties and hearing their learned counsel, allowed the said ejectment application vide dated 14-11-2002. The respondent No.3 filed Rent Appeal bearing No.8 of 2003 against the said ejectment order which was heard by learned III Additional District Judge, Karachi-Central who, vide judgment dated 21-7-2003, allowed the same, set aside the order of ejectment and directed for remand of the ejectment application to the Rent Controller with the following observations/directions:- "The perusal of the record reveals that the ejectment, application was signed and verified on oath by one Haji Essa son of Ismail, as President of Okhai Memon Masjid, the respondent No.l. Admittedly, along with ejectment application, copy of power of attorney or any document, showing that Haji Essa was authorized to file ejectment application has not been filed. The appellant/opponent in written statement in para, (ii) under the heading. "Preliminary Objections" has raised specific objection in this regard. The said para reads as under: - "(ii) The person who has signed and verified the application is not competent of file the same."
' In view of the above objection the burden was on the respondents/applicants to prove that Haji Eassa had the 'authority to sign and verify on oath, the ejectment application and that the ejectment application was competent.
' It appears that to meet the above objection, Haji Essa in his evidence has produced resolution passed by the Board of Trustees of the respondent/applicant No.l on 18-3-2001 as Exh.A. The sfaid resolution reads as under:-- 'Okhai Memon Jama Masjid Trust Hussinabad Block-3, F.B. Area, Karachi.
' Subject: Resolution Passed at Board of Trustees Meeting held on 18th March, 2001: "Resolved that this meeting of Board of Trustees of Okhai Memon Masjid Trust Hussainabad held on 18 March, 2001, fully authorized its Chairman/'Chief Trustee Muhammad Essa son of Haji Ismail Mamdani to take all necessary legal steps. Actions to vacate shop No.l space required for constructing large/wide gate for the convenience of Namazis offering prayers at Okhari Memon Jama Masjid Hussainabad. He is further authorized to make payment towards cost in this respect.
' Thank you.
' Essa Haji Ismail Mamdani Chairman/Chief Trustee Countersigned by Trustees Attending the above meeting.
' Signature <1) Muhammad Yaqoob
(2) Saleh Muhammad
(3) Haji Tahir Muhammad Gaba
(4) Mr. Dawood Hashim Dawra
(5) Noor Muhammad Karar
(6) Haji Ibrahim Naiwala ' From the perusal of above resolution, it is clear that the same was passed on 18-3-2001, and in the said resolution, Haji Essa was not authorized to sign verify ejectment application on oath. Further the ejectment application was filed on 15-3-2001, prior to passing of resolution on 18-3-2001.
Learned counsel for the appellant/opponent has relied' on 2000 SCM R 472 for proposition that where the ejectment application was filed by unauthorized person, the same was not maintainable.
' Learned Advocate for the respondents/applicants in reply to above has submitted that under the law, even if the person who has signed and verified the ejectment application was not authorized to do so before filing the ejectment . Application, the acts done by him can be rectified subsequently. The learned counsel for the respondents/applications has also placed reliance upon 2000 SCM R 472, for the said proposition.
' Admittedly, Haji Essa has no authority on 15-3-2001. When the ejectment application was filed to sign and verify the same and to file the same in Court. No doubt, such act of Haji Essa could be rectified subsequently by the Board of Trustees of the respondent/applicant No.l, in view of judgment of the Honourable Supreme Court relied upon by both the parties, Advocates. Now, question arises whether the acts of Haji Essa were rectified subsequently? The resolution dated 18- 3-2001, Exh. A, has been produced above, Said Exh.A does not rectify the acts of Haji Essa.
' While going through the record of lower Court. I have come across application dated 31-10-2002, filed by the respondents/applicants under section 151, CP.C. Supported by affidavit of Haji Essa.
Along with the said application an other resolution dated 30-10-2002, has been filed. In the said application prayer has been made to keep the said resolution on record. The said resolution reads as under:- ' Okhai Memon Jama Masjid Trust (Redg.)
' ST-17-A and 17-B, Block 3, Federal 'B' Area, Hussainabad Karachi 75950.
' Ref No..........
' Subject: Resolution rectifying the acts of Chief Trustee in Rent Case No.201 of 2001 Resolved in an urgent meeting of the Board of Trustees of Okhai Memon Jama Masjid Trust Hussainabad held on 30-10-2002 (evening) whereby all the Trustees have rectified and confirmed the acts and legal steps taken for vacation of shops from tenant Taufiq Tor the purpose of the extension of "Wuzoo Khana" and enlargement of entrance gate of mosque upto 20 feet to meet the bona fide need of the Namazies and in view of their severe inconvenience. The acts of filing of Rent Case No.201 of 2001 against tenant Taufiq by the Chief Trustee/President of the Masjid has also - been rectified and confirmed and the said President/Chief Trustee was orally authorized and instructed by all the Trustees for filing of ejectment application and conduct the proceeding on behalf of said Mosque by engaging counsel (sic) tenant Taufiq to file affidavit in evidence and do all other acts necessary for the purpose.
' The resolution dated 18-3-2001 had already been given to the President/Chief Trustee namely Haji Essa with full authority to take every legal steps against the tenant Taufiq for vacation of the said shop. This resolution is being passed to avoid any confusion or ambiguity in earlier resolution dated 18-3-2001 in respect of authority of Chief Trustee/President Haji Essa to file ejectment application and conduct the same against tenant Taufiq son of Abdul Sattar.
ESSA HAJI ISMAIL MAMDANI CHAIRMAN/CHIEF TRUSTEE OKHAI MEMON JAMA MASJID TRUST COUNTERSIGNED BY TRUSTEES ATTENDING THE ABOVE MEETING.
NAME SIGNAURE
(i) Muhammad Yaqoob
(ii) Haji Tahir Muhammad Gaba
(iii) (iii) Hashim Husain Kath
(iv) Haji Abdul Karim Canattara
(v) Dawood Hashim Dawra
(vi) Yousuf Muhammadi
(vii) Dr. Saleh Muhammad
(viii) Haji Ibrahun Toberia
(ix) Haji Rehmatullah Abdul Latif Kath
(x) Noor Muhammad Usman Karar ' The record further reveals that on the said application dated 30-10-2002, the learned trial Court passed the following order:- "Resolution be kept on file. "
' Thus the learned Rent Controller, allowed the prayer of the application dated 31-10-2002, on the same day without issuing notice to the appellant/opponent and without hearing the appellant.
' The procedure adopted by the learned Rent Controller is against the principles of natural justice.
The resolution dated 30-10-2002, produced above was filed to meet the objection raised by the appellant/opponent. The appellant/ opponent was entitled to notice of the said application and resolution and the appellant/opponent was also entitled to an opportunity of being heard. The learned Rent Controller should not have passed order dated 31-10-2002, on the said application behind the back of appellant/opponent. The appellant/ opponent was prejudiced by the procedure adopted by the learned Rent Controller. The.Order dated 14-11-2002, impugned in this appeal shows that the learned Rent Controller has not framed point of maintainability of rent case for determination. Even the objection taken by the appellant/opponent, reproduced above, has not been discussed in the impugned order. "
4. Hence, the petitioner s/landlord/ Rent Collector filed the present constitutional petition against the said judgment of the appellate Court.
5. Learned counsel for the petitioners/ landlord has cited Yousuf, and another v. Muhammad Zubair and another (ELD 1986 SC 154) wherein the Honorable Supreme Court was pleased to record the following observations in paras.4, 5 and 6:-- * "(4) The main ground urged by the learned counsel for the petitioners before us in that the Mutawallis are. Not landlords within the meaning of the word as used in section 15 of the Sindh Rented Premises Ordinance, 1979, and they had, therefore, no locus standi to file the ejectment applications. In support of this contention he urged that according to the Mulla's Muslim Law the ownership of a Wakf property is vested in the Almighty alone, and the Mutwallis cannot therefore be regarded as landlords of the premises in question.
(5) We are afraid this contention is wholly misconceived. The terms 'landlord' has been specifically defined in section 2(1) of the Sindh Rented Premises Ordinance', 1979, and reads as follows:- "(2) Definitions.-In this Ordinance, unless there is anything repugnant in the subject of the context:-
(a) To
(b) (e).................................
(f) 'landlord' means the owners of the premises and includes a person who is for the time being authorized or entitled to receive rent in respect of such premises. "
A reading of this provision clearly shows that the word 'landlord' has been given an extending meaning, to include not only the owner but also persons who, for the time being, are either, authorized or entitled to receive rent in respect of the premises in question and they need not be owners of the same.
(6) Learned counsel for the petitioners admitted that Mutawallis or trustees or managers of Wakq properties, and are, inter alia, entitled to received the rent of the Wakf Properties which have been given on lease. He also admitted that the premises in question were let out to the petitioners by the respondents and it is to them that they (i.e. The petitioners) used to pay the monthly rent.
6. According to the learned counsel for the petitioners, the Board of Trustees of the Petitioner No.l had passed a resolution thereby fully authorizing its chairman/chief trustee to take all necessary legal steps/ actions to get the disputed shop vacated for the purpose of extension of the ablution place/Wuzukhana for the worshippers in the mosque and further that whatever actions earlier taken by the petitioners towards filing of the ejectment application, and the those followed thereafter were also rectified by the Okhai Memon Jama Masjid Trust, and therefore, the fact that such an authority was not issued in favour of the petitioner at the earlier stage of filing of the ejectment application was only a question of technicality and the ejectment application could not have been taken to be defective by the appellate Court.
7. Learned counsel for respondent No.3 has relied upon the case of M/s A.M. Industrial Corporation Limited v. Aijaz Mehmood and others (2006 SCMR 438) wherein the Honourable Supreme Court was pleased to record the observation that the question as to the person having signed the ejectment application without having been issued the authority letter/power of attorney through a resolution of the bohrd of directors for the institution of the ejectment proceedings against the tenant having already been decided in Habib Bank Limited v. Zelins Limited (2000 SCM R 472), the remand order of the appellate Court is to be taken to be legal and proper.
8. The relevant observation in the above cited case viz. 2000 SCM R 472, read as under:- "These were cases where'authority of the persons who had instituted the rent proceedings, on behalf of the bank had been specifically challenged and in such a situation burden was on the bank to prove that ejectment application had been competently instituted. Either power of attorney (or its copy) in favour of Ibrahim Bawani and Ghulam Muhammad, who had instituted the ejectment applications ought to have been filed showing that they had the power on behalf of the bank to institute the ejectment proceedings or a resolution of the bank authorizing them to institute such proceedings produced in evidence. If this was not done, some .Document of the bank could have been produced showing that the bank had authorized the filing of the ejectment applications against the respondents or had ratified the filing of the applications. This was also not done and, despite the findings of the Rent Controller on the maintainability of the ejectment applications having gone against the bank, in the appeals before the High Court also neither power of attorney in favour of Ibrahim v Bawani and Ghulam Muhammad npr copy of any resolution of the bank was produced. No document of the bank has been produced atifying the action of Ibrahim Bawani and Ghulam Muhammad to file the ejectment applications.
' According to learned counsel for the petitioner-bank, filing of ejectment applications against the tenants on the ground of personal - requirement, subletting, nuisance, etc., was a matter included in the day to day business of the branch of the bank and, being so the Branch Manager was authorized to file and pursue the ejectment applications and it was not necessary to produce any power of attorney or resolution of the bank or to make any reference to the Articles , of Association of the bank conferring authority on the Branch Manager to prosecute and pursue such cases of ejectment.
' We cannot agree with the contention of the learned counsel that the decision to file ejectment applications against the tenants of the bank on the ground of personal requireme At, subletting, nuisance etc., was a routine matter included in the day to day business of the branch of the bank and Branch Manager could be considered in law to possess requisite authority to prosecute -such ejectment cases as he could competently pursue the day to day business of the branch of the bank. Filing of ejectment proceedings under the rent laws against the tenants of the bank is not a matter covered by the day to day routine business of the branch of a bank. In case any objection is raised about the competence of the officer of the bank instituting ejectment proceedings under the rent laws against the tenants of the bank, burden falls upon the bank to establish that the person instituting the ejectment proceedings was authorized by the bank in that behalf. In these cases this burden had not been discharged. The view taken by the High Court in the facts of these cases is not open to exception."
9. Keeping in view the above quoted observations of the Honourable Supreme Court recorded in para.4 of the ejectment, the landlord/petitioners would be within their competence to file the document of power of attorney or resolution of the trust in the ejectment proceedings at a later stage. Even otherwise it is a settled principle of law that the litigation in between the parties should not be allowed to be determined merely on the basis of technicalities, which need to be avoided as far as possible wherever the merits of the case otherwise give a clear picture as to the rights of the parties therein.
10. In Abdul Majid v. Syed Azhar Ali Shah and others (PLD 1985 SC 191) the Honourble Supreme Court was pleased to hold that proceedings on the basis of memorandum of appearance instead of regular power of attorney cannot be held to be bad on this short ground.
11. Under the circumstance the appellate Court was not justified to direct the remand of the Rent Controller on1 the basis of the technicalities; the impugned judgment having been found suffering from such an illegality, this constitution petition is hereby allowed, the impugned judgment of the appellate Court is set aside and the case is remanded to the appellate Court with the direction to hear the parties afresh and to decide the appeal on its merits in accordance with the above quoted observations recorded by the Honourable Supreme Court in the cases referred hereinabove.,