1. ' MRS. QAISER IQBAL, J.---The petitioner has assailed the judgment passed in F.R.A. No,337/2001 dated 22-2-2005 whereby the appeal filed by the respondent No,1 was allowed and the order passed by Controller in Rent Case No,648/1996 dismissing the eviction application was set aside.
2. ' Succinctly the facts leading to the case are that respondent No,1 through his attorney Ikram Aziz filed Rent Case against the appellant on the ground of default and subletting. The respondc3t No,1 in the ejectment application averred that the petitioner became his tenant under tenancy agreement dated 1st July, 1972 at a monthly rent of Rs,500, the appellants have failed to tender rent, committed default since 1st November, 1994 sought ejectment of the appellants.
3. ' In the written statement it was averred that the monthly rent was paid to the respondent No,1 up to March, 1996 for which valid receipts were issued. It is averred that per instructions of the United Bank Limited that appellants and other tenants of the building used to tender rent through pay order being deposited with one Ikram Aziz incharge of Engineering Division of United Bank Limited, he used to issue rent receipts the practice for cumulative payment of rent continued under the instructions of landlord. The rent for the month of January, 1997 was offered which was refused by the respondent No,1, the appellant started depositing rent in MRC No, 435/1997, thereby committed no default. On account of dismissal of the rent case by the rent controller, the respondent No,1 has preferred an appeal which was allowed through the impugned judgment on the ground of default.
4. ' Learned counsel for petitioner has primarily contended that the impugned judgment is not in conformity with law as United Bank Limited did not file the ejectment application through its authorized agent, has relied upon the case reported as Habib Bank Ltd. v. Zelins Limited and another (2000 SCMR 472), it was further contended that the ejectment application was not filed through the duly constituted attorney nor an authority was vested through the resolution of Board of Directors to any person to file the ejectment proceedings. It is further submitted that the power of attorney executed in favour of Ikram Aziz son of Mujeeb Aziz shows that he was not authorized to file rent case in terms of Para 9 of the power of attorney reproduced hereinbelow:-- "To commence prosecute, continue and defend all actions, suits or legal proceedings whether civil, criminal or revenue, including proceedings to procure or establish the bankruptcy or insolvency of any person or firm or liquidation or winding up of any company, to compromise or refer to arbitration any claims or disputes either in such suits or proceedings or otherwise; to appoint solicitors, advocates, pleaders, Vakils and other legal agents; to make sign, verify, execute, plaints, petitions, written statement, memorandum of appeal, applications , tabular statements, vakalatnamas, warrants of authority or any other paper writings or documents expedient or necessary in the opinion of the attorney to be made signed, executed, verified, presented or filed."
5. ' It is further contended that Ikram Aziz was not authorized to file the case specifically ejectment application on behalf of the Bank therefore the impugned judgment is not sustainable in law and is liable to be set aside.
6. ' From the side of the respondent No,1 it is contended that case of Zelins Limited (supra) is not applicable to the circumstances of the case as the ejectment application was filed with the signatures of the Bank officials subsequently verified the application, no specific plea was raised in the written statement in respect of the status of the attorney nor the attorney of the respondent No,1 was subject to cross examination thus at a belated stage, point regarding maintainability of the ejectment application cannot be raised. On the point of default learned counsel for respondent has pointed out that the rate of rent has been specifically admitted, the respondent had committed default, ample evidence is available to connote that the default was committed by the appellants since December, 1994 as the practice for accumulative payment is not in consonance with law.
7. ' I have heard learned counsel for the parties, perused the record of the case. Admittedly the ejectment case was filed by the Bank with the signatures of its attorney Ikramul Aziz, he has also verified the averments of the eviction application. The question about the maintainability of the application in the light of Zelins Limited case (supra) provides that the banks in which the limited companies have also been included must have a resolution of Board of Directors to authorize its person or should have a power of attorney. The relevant portion is reproduced herein below:-- "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 would have been produced showing that the Bank had authorized 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 Bawani and Ghulam Muhammad nor copy of any resolution of the Bank was produced. Even before this Court no such power of attorney or resolution has been produced. No document of the Bank has been produced ratifying the action of Ibrahim Bawani and Ghulam Muhammad to file the ejectment applications. "
8. ' In the instant case ejectment application has been signed by two persons while one has verified the ejectment application. Ikram Aziz who has a signed and verified ejectment application was recipient of rent can be considered as landlord within the meaning of Sindh Rented Premises Ordinance, 1979. The rent application was filed 12 years ago, no B objection was raised by the tenant about the maintainability of the case. In the above circumstances, in case of any flaw in presentation of power of attorney benefit of section 196 of the Contract Act 1872 can also be extended which shows that the person on whose behalf an agent or attorney has acted then in respect of the defect in the power the principal can rectify the act of attorney or agent, such question was put into cross-examination of the attorney of the Bank.
9. 'Before adverting to the above contention it is well settled that the power of attorney shall be strictly construed in terms bf section 188 of the Contract Act and the person authorized would carry out C the function in the manner authorized by power of attorney others all suggest would be in the nullity in the eye of law as held in case of Shahab Uddin (1995 MLD Lahore 45). The power of attorney explicitly refers to all suits and proceedings and applications D for the purpose of taking legal actions. Learned counsel for respondent No,1 has contended that if general power of attorney holder was empowered to file unspecified case and applications that would impliedly mean and include rent cases and rent applications, thus, there was justification by the attorney authorized by the Bank to proceed with the legal action regarding eviction proceedings including filing of the ejectment application and verification, within the authority of the attorney in pursuance of clause 9 referred to above. In support of the above contentions reliance has been placed on 1997 MLD Karachi' 3284, 1984 CLC Karachi 2599. It will not be out of place to mention that the proceedings before the controller are quasi judicial in nature, technicalities should not be over stretched to attend the performance of administering substantial justice to the parties.
10. ' The plea about the maintainability of eviction application was not raised in the written statement nor agitated in the evidence adduced by the U.B.L, per maxim secundum allegata et probata, authority to G litigation can only succeed according to what was alleged and proved. Admittedly objections were not raised before Controller the ejectment application filed by the Bank without authorizing the agent more specifically without resolution of Board of Directors could not be agitated at appellate stage. In support of the above contention reliance is placed on the following case law:--
(a) 2009 SCMR 530; (b) 2000 SCMR 1960; (c) 1998 SCMR 593 and (d) 1985 CLC Karachi 2419.
11. ' The above plea was also considered in the report of Baboo Khan v. Maqbool Ahmed 1984 CLC Karachi 2599, on the basis of one of the clauses of power of attorney authorizing attorney to take legal action regarding any proceedings in connection with rented shop on behalf of landlord was held would fall within authority of attorney in pursuance of said clause. In view of the above circumstances, Zelins Limited case (supra) is not applicable to the facts and circumstances of the present case. The ejectment application was competently filed by attorney and the Appellate Court was justified in allowing the eviction of the tenant.
12. ' As far as default is concerned the plea of the appellants cannot be accepted, as payment of accumulative rent was not H considered a proper payment. There appears default in payment of rent commencing from 1-11-1994 till filing of the eviction application the findings of the Court below is in conformity with evidence available on record.
13. ' For the foregoing reasons petition is not maintainable in law and is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.