' SYED KAZIM RAZA SHAMSI, J. This second appeal is directed against an order dated 11-1-2010 passed by Mr. Javed Akhtar, the learned Additional District Judge, Faisalabad, whereby he maintained the ejectment order dated 18-9-2008 passed by Muhammad Usman, the learned Rent Controller Faisalabad accepting the ejectment petition and ordering the eviction of the appellant from the demised premises.
2. Facts of the case briefly stated are that one Ashfaq Ahmed filed a petition against the respondent under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 on behalf of United Bank Limited on the ground of personal need of the .Bank as well as default in the payment of rent. The application was contested by the respondent/tenant who controverted the allegation.
The learned trial Court framed the issues in respect of wilful default in the payment of rent and proceeded to record the evidence of the parties. After appreciating the evidence the petition was accepted ordering the ejectment of the tenant/appellant. Feeling aggrieved by the said eviction order the same was assailed before the learned first appellate court, which also concurred with the findings of the learned Rent Controller and dismissed the appeal vide order impugned in the instant second appeal.
3. It is contended by the learned counsel for the appellant that shfaq Ahmad who filed an ejectment petition against the appellant was not duly authorized to institute the ejectment petition.
He submitted that after conclusion of oral evidence the course for the respondent in absence of the counsel for the appellant, on 16-6-2006 placed some documents of authorization on record which were exhibited by the court without affording an opportunity to the appellant to raise objection on the exhibition of those documents. He further contended that only those documents could be exhibited in the statement of the learned counsel, which are of unchallenged authenticity.
He further contended that the oral statement of AW.1 is not sufficient to prove the case of the ejectment. On merits, the learned counsel has assailed the findings of the learned courts below. He cited the cases Habib Bank Limited v. Zelins Limited and another (2000 SCM R 472), Messrs A.M.
Industrial Corporation Limited v. Aijaz Mahmood and others (2006 SCM R 437), Maqbool Ahmad v.
Pakistan Agricultural and others (2006 SCM R 470), Mian Muhammad Abdullah v. Sheikh Nawab Din (1971 SCM R 336), Irfanullah Shah v. Wahabdullah Shah 2003 YLR 1195, Akhtar Ali Qureshi v. Qari Amir Alam (NLR 2006 Civil 492), Tariq Ali Sheikh v. Rent Controller, Mr. Khalid Nawaz, Lahore and another 1998 CLC 460 and Reckitt and Colman of Pakistan Limited v. Saifuddin G. Lotia and others (2000 SCM R 1924).
4. Meeting with the objection of learned counsel for the appellant the counsel for the respondent submitted that the documents like power of attorney lease deed, site plan etc. Can be exhibited in the statement of the counsel, as such, no illegality was committed by the learned courts below in placing on record the documents in the statement of the counsel.
5. I have considered the submissions made by the learned counsel for the parties and examined the record. Keeping in view the objection of learned counsel for the appellant about competency of Ashfaque Ahmed to institute ejectment petition and its maintainability, I intend to discuss this objection. The record shows that the counsel for the appellant when came to know that the documents i.e. Site plan of the shop in dispute, copy of attorney, copy of lease deed, original attorney and attornyship of Ashfaq Ahmad were placed on record in the statement of Sh. Abdus Sattar Advocate dated 16-6-2006, assailed the said exhibition through an application, which was declined by the learned Rent Controller. It appears that the order of Rent Controller was interim order, as such, no appeal was filed. However, this point was raised before the learned First Appellate Court, which did not give any finding on the same. After examining the ejectment petition it is found that one Ashfaq Ahmad perhaps had filed the ejectment petition in his personal capacity as he did not mention therein that he had been duly authorized by the Bank to institute the ejectment petition nor he had referred to any power of attorney executed in his favour in the ejectment petition. Similarly, the documents, which were exhibited in statement of the counsel for the respondent Bank, could not be exhibited in that form for the reason that these documents were to be tendered in the statement of AW.1, where its admissibility and relevancy was to be determined by the court as well after providing opportunity of cross-examination of the witness on the point by opponent counsel. To this extent, it seems that the appellant has been condemned unheard as all this exercise was done illegally at the back of the appellant. Further it was the duty of the learned Rent Controller before keeping those documents on the file to see that these documents are yet to be proved through evidence and cannot be exhibited without formal proof.
The court failed to perform its duty. In the case of Habib Bank Limited (supra), the Hon'ble Supreme Court held that filing of ejectment proceedings against a tenant by the Bank was not a matter covered by day to day routine business of the Branch and that if any objection in such situation is raised about the competency of the officer of the bank instituting ejectment proceedings against a tenant of the bank, burden fell upon the bank to establish that the ejectment proceeding was authorized by the bank in that behalf. It was further observed that if the burden is not discharged then the petition was not maintainable. In this scenario when the statement of AW..1 Ashfaq Ahmad is examined, it does not show that he was authorized by banking company by an instrument to lodge proceedings against its tenant; he did not tender in his statement original documents in this behalf, so that he could be subjected to cross-examination by the counsel to check the validity of authorization. In these circumstances, dictum of Hon'ble Supreme Court supra is fully applicable to the facts of the instant case. Ashfaq Ahmed was not competent to file the ejectment petition on behalf of the bank, as such, petition is not maintainable. All the proceedings taken therein are of no significance and are without jurisdiction.
6. For the foregoing reasons this appeal is accepted with costs by setting aside the order of the learned first appellate court as well as of the learned Rent Controller. Consequently, ejectment petition is dismissed with costs. However, the respondent after removing the defects may institute a fresh petition.