' MUHAMMAD TASNIM, J.--- Through this petition, the petitioner, who is landlord, has challenged the judgment dated 29-9-2007 passed by learned VI-Rent Controller, Karachi-Central in R.C.No,798 of 2005 and judgment dated 30.04.2010 passed by learned IV-Additional District Judge, Karachi- Central in F.R.A.No,198 of 2007.
2. Brief facts, leading to this petition, are summarized as under:
3. The father of respondent No,1 was tenant of landlady namely Mst. Shahida Begum in respect of Shops Nos.4, 5, 6 and 7 in building constructed on Plot No,7, Block-5, Sub-Block-E, Wahid Market (previously Ashraf Market), Papoosh Nagar, Nazimabad, Karachi. After the death of father of respondent No,1 present respondent No,1 became the tenant as he was in possession along with his father. Respondent No,1 started paying rent to the original landlady. It appears that property, where disputed shops are located, was purchased by one Syed Abid Ali, the petitioner, through a registered sale-deed dated 23-2-2005. It is claimed by the petitioner that after the purchase of the property, the present petitioner served notice under section 18 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called as "the Ordinance, 1979"), requiring respondent No,1 to tender rent from the month of March, 2005 to the present petitioner. It was further claimed that after service of notice rent was not tendered by respondent No,1 to the present petitioner. The ejectment proceedings under section 15 of the Ordinance, 1979 were filed on the ground of default in payment of rent from March, 2005 till December, 2005, personal bona fide use of petitioner. Reconstruction of the building after demolishing the existing structure and on the ground that respondent No,1 has raised illegal construction blocking the passage. Notice of the ejectment application was served upon the respondent No,1, who filed written statement on 13-2-2006 challenging the maintainability of the proceedings on the ground that same has been initiated by an incompetent person and submitted that father of respondent No,1 was tenant of Mst. Shahida Begum ever since 1996. It was further stated that father of respondent No,1 expired in 1998 and after his death he became tenant in the premises and started paying rent to Mst. Shahida Begum. It was further stated by respondent No,1 that no notice under section 18 of the Ordinance, 1979 was ever received from the petitioner by respondent No,
1. However respondent No,1 stated in the written statement that a letters dated 23- 2-2005 was sent by the previous owne; to respondent No,1 intimating the change of ownership from previous owner to the petitioner, but address of the petitioner was not mentioned in the letter.
It was further stated that since address of the petitioner was not available with respondent No,1, he tendered rent to the previous landlady and on her refusal respondent No,1 sought permission from the learned III-Rent Controller, Karachi-Central for depositing rent in Court in the name of previous owner. Accordingly he started depositing rent in M.R.C.No,281 of 2005 in the above Court. It was further claimed in the written statement that on service of present ejectment application upon respondent No,1, he immediately sent rent for January, 2006 through money order to the present petitioner, but the same was refused. On refusal by the petitioner, respondent No,1 started depositing monthly rent in the name of present petitioner in M.R.C.No,16 of 2006 before the learned III-Rent Controller, Karachi-Central. It was stated that no default in payment of rent has been committed by respondent No,1. He has further claimed in the written statement that petitioner is permanently settled in Canada along with his (sic) for the last 15 to 20 years hence need of the petitioner is neither genuine nor bona fide in the circumstances of the case. It was further stated in the written statement that respondent No,1 has not raised any illegal construction, which has obstructed the passage, but due to law and order situation with the permission of the previous landlady a grill was fixed on the shop to save the owner/respondent No,1 from dacoits. With regard to re-construction, it was stated in written statement that no approved plan for reconstruction or permission for demolition was annexed with the Rent case hence relief for reconstruction could not be granted.
4. Applicant examined one Syed Khalid Ali as attorney of petitioner, who brought on record a general power of attorney dated 23-5-2003 executed by petitioner in his favour and copy of sale- deed dated 23-2-2005, whereby property was transferred to the present petitioner from the previous owner. He also brought on record a notice intimating the change of ownership to the petitioner by the previous landlady. Copy of notice under section 18 of the Ordinance, 1979 by attorney of landlord dated 23-2-2005 was also brought on record. Along with affidavit-in- evidence, reply of Advocate for respondent No,1, dated 30-4-2005 addressed to previous landlady was also filed. Petitioner side also examined one Syed Shahid Ali as their witness. Respondent No,1 examined himself and along with his affidavit he filed copy of paid challan of monthly rent deposited in M.R.C.No,281 of 2005 in the name of previous landlady and copy of paid challan of M.R.C.No,16 of 2006 in the name of petitioner. He also filed a copy of paid challan of monthly rent deposited by him in the Rent Case No,798 of 2005. In addition to the respondent No,1, he also examined one Abdul Salam as his witness. All the witnesses were duly cross-examined by the respective parties.
5. Learned Rent Controller heard the parties and vide judgment dated 29-9-2007 dismissed the rent application. Petitioner felt himself aggrieved against the aforesaid judgment passed by learned Rent Controller and preferred a rent appeal being F.R.A.No,198 of 2007 before the IV- Additional District Judge, Karachi-Central, who after hearing the parties vide judgment dated 30- 4-2010 also dismissed the appeal filed by the petitioner. Against the aforesaid two judgments, present petition has been filed.
6. Mr. M. Niamat All Randhawa, learned counsel for petitioner has contended that respondent had committed wilful default in payment of rent to the petitioner though notice under section 18 of the Ordinance, 1979 was served upon him. Learned counsel further submitted that both the courts below have passed the judgment without appreciating material evidence available on record causing serious prejudice to the present petitioner. Learned counsel for petitioner has pressed the present petition only on the ground of default in payment of monthly rent and has not pressed the grounds of personal need and re-construction. In support of his contentions, learned counsel for petitioner has relied upon the following case-law:--- 1) M/S. HABIB BANK LIMITED VS. SULTAN AHMAD AND ANOTHER (2001 SCMR 678)
(2) SAIFULLAH VS. MUHAMMAD BUX AND OTHERS (2003 MLD 480)
(3) GHULAM NABI THROUGH ATTORNEY VS. NOUSHAD ALI AND OTHERS (2010 MLD 1543)
(4) HIRJIBHAUI BEHRANA DAR-E-MEHER VS. M/S. BOMBAY STEEL WORKS (2001 SCMR 1888)
(5) ABDUL GHANI VS. ABRAR HUSSAIN (1999 SCMR 348).
(6) PAKISTAN STATE OIL COMPANY LTD., KARACHI VS. PIRJEE MUHAMMAD NAQI (2001 SCMR 1140)
(7) QAMAR ZAMAN VS. IIND ADDITIONAL DISTRICT JUDGE, KARACHI AND ANOTHER (2008 CLC 431)
(8) SYED FEROZE. ALI VS. THE IVTH ADDITIONAL DISTRICT and. SESSIONS JUDGE and OTHERS (2006 CLC 1416)
(9) MST. YASMEEN KHAN VS. ABDUL QADIR AND ANOTHER (2006 SCMR 1501)
(10) RECKITT & COLMAN OF PAKISTAN LTD. VS. SAIFUDDIN G. LOTIA AND OTHERS' (2000 SCMR 1924)
(11) MEHMOOD LAKHANI VS. SYEDA ZUBAIDA KHATOON AND OTHERS (2009 YLR 1083)
(12) MUHAMMAD ASLAM PERVAIZ VS. AL-MUSTAFA WELFARE SOCIETY AND OTHERS (2010 MLD 222)
7. Conversely Mr. Adnan Ahmed, learned counsel for the respondent No,1 has challenged the maintainability of the petition on the ground that this petition arises from the concurrent findings of facts recorded by two Courts below and High Court in its constitutional jurisdiction, cannot reappraise the findings and cannot sit as Court of appeal hence the findings recorded by the Courts below cannot be disturbed in its constitutional jurisdiction. He further submitted that the respondent No,1 had not committed any wilful default in payment of rent to the landlord. He further submitted that findings recorded by both the courts below are strictly in accordance with law and do not call for interference. He further submitted that rent proceedings initiated before the learned Rent Controller were incompetently filed by the attorney for the reasons that power of attorney was executed in favour of attorney by the petitioner on 23-3-2003, whereas present property was purchased by the petitioner on 23-2-2005. Learned counsel further submitted that the day on which power of attorney was executed by the petitioner in favour of attorney he was not the owner of the property. He further submitted that power of attorney executed by the petitioner in favour of attorney did not give the power to the attorney to initiate the rent proceedings against the respondent No,
1. On merits, learned counsel for respondent No,1 submitted that there was no default in payment of rent on the ground that after receipt of notice from the previous landlady rent was offered to her for March, 2005 and on her refusal the respondent No,1 started depositing rent from March, 2005 in M.R.C.No,281 of 2005. Learned counsel further submitted that after service of notice of the ejectment application, respondent No,1 tendered rent for the Month of January, 2006 to the petitioner, but on his refusal he started depositing monthly rent with the learned Rent Controller in M.R.C.No,16 of 2006. Learned counsel for respondent No,1 in support of his contentions has relied upon the following case-law:---
(1) SHEZAN LIMITED VS. ABDUL GHAFFAR AND OTHERS (1992 SCMR 2400)
(2) M/S. JOHN TRADERS AND OTHERS VS. AHMED ALI (1986 CLC 561)
(3) PHILOMENA MATHEW AND OTHERS VS. MISS ABIDA RIASAT RIZVI (1993 CLC 2307;
(4) STATE LIFE INSURANCE CORPORATION OF PAKISTAN, KARACHI VS. M/S. SIDDIQUE TAILORS THROUGH ITS SOLE PROPRIETOR (PLD 1993 Karachi 642)
(5) MUHAMMAD AKHTAR VS. MST. MANNA AND OTHERS (2001 SCMR 1700)
(6) MISS ZOHRA MASUD VS. AFTAB AHMED (PLD 1993 Karachi 293).
8. I have heard the learned counsel for the parties and have perused the record so also the case- law cited at the bar.
9. Prior to taking up the points raised by learned counsel for petitioner, I deem it proper to take up the points raised by Mr. Adnan Ahmed, learned counsel for respondent No,1 with regard to maintainability of the petition. Learned counsel has submitted that this petition is not maintainable as neither any jurisdictional defect has been pointed out nor has any illegality in the impugned judgment been shown by the petitioner. He further submitted that no misreading or non-reading of the material available on record has been pointed out by the petitioner side. To support his contentions learned counsel has placed reliance on the Judgments 1. PLD 2006 Supreme Court 214 (Mst. MOBIN FATIMA v. MUHAMMAD YAMIN and 2 others), 2. 1992 SCMR 505 (ABDUL RAZZAQ v. Messrs IHSAN SONS LIMITED and 2 others),
3. PLD 2007 Karachi 50 (Mrs. TAHIRA DILAWAR ALI KHAN through Attorney and 2 others V. Mst. SYEDA KANEEZ SUGHRA and 2 others).
10. In the first reported judgment learned counsel has invited my attention to paragraph-8 of the report wherein the honourable Supreme Court of Pakistan has dealt with the issue in the following words:- "8.' The High Court, no doubt, in the exercise of its constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 can interfere if any wrong or illegal conclusions are drawn by the Courts below which are not based on facts found because such an act would amount to an error of law which can always be corrected by the High Court."
1 1 . In the second reported judgment relied upon by the learned counsel for respondent No, 1, learned counsel has invited my attention to the findings recorded by the honourable Supreme Court of Pakistan with regard to the powers of High Court under Article 199 of the Islamic Republic of Pakistan, 1973. He specifically pointed out the observations of the honourable Supreme Court of Pakistan in the reported judgment in paragraph-15, wherein honourable apex Court has held as under:--- "15. The High Court in constitutional jurisdiction could not have sat as a Court of appeal on the question of fact. The finding of fact recorded by a competent Tribunal can be interfered with by a High Court in exercise of constitutional jurisdiction if the same is based on no evidence or is founded on misreading of evidence or is recorded by ignoring material evidence on record.
However, a finding of fact cannot be interfered with by the High Court in exercise of constitutional jurisdiction merely on the ground that a different view on the basis of same evidence was possible."
12. In the third reported judgment, wherein learned Judge who authored the judgment while relying upon the judgment of Honourable Supreme Court has observed as under:- "In the case of Secretary to the Government of the Punjab, Forest Department v. Ghulam Nabi and 3 others (PLD 2001 SC 415), it was held by the Hon'ble Supreme Court that constitutional jurisdiction cannot be exercised to reappraise evidence, and come to its own independent findings, where findings of facts were recorded by authority below after giving good reasons in support of it. Referring to the plethora of case law, it was further observed that there is no cavil to the proposition that that Superior Courts have ample jurisdiction to refuse a relief where granting it would tantamount to injustice, as High Court is not bound to grant relief to the petitioner simply because he was legally entitled to the same if the grant of such relief is immoral, unfair or against the dictates of good conscience and fairplay. It hardly needs any elaboration that High Court is not obliged to press into service its Constitutional jurisdiction in every case in which illegality, or void action or void order is impugned; but the Court is to see whether the grant of relief prayed for fosters the cause of justice or will it perpetuate injustice."
13. There is no cavil with the proposition advanced by the learned counsel for respondent No,
1. With regard to the functions and powers of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. It is settled law that findings on facts recorded by competent tribunal can be interfered with by the High Court in exercise of constitutional jurisdiction if the same was based on no evidence or was recorded by ignorance of material evidence on record. Findings of facts cannot be interfered with by High Court in its said jurisdiction merely on the ground that different view on the basis of the same evidence was possible. Applying the above rule to the present case it is to be seen whether the learned Courts below have recorded their findings in accordance with evidence available on record and the law. If any misreading or non-reading is noted which has caused serious prejudice to a particular party, in that event jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is to be invoked and illegality committed by the Court below is to be rectified. If it is found that findings of the Courts below are in accordance with law and also in line with the evidence on record normally no interference is called for. The point raised by learned counsel is answered accordingly.
14. Learned counsel for respondent No,1 has also challenged the maintainability of ejectment proceedings initiated by the present petitioner through his attorney. Learned counsel has submitted that power of attorney was issued in the year 2003 whereas property was allegedly purchased by present petitioner in the year 2005. Learned counsel further submitted that in the year 2003 the petitioner was not owner of the property hence he had no authority to authorize the attorney to file ejectment application against respondent No,
1. He further submitted that property in question was admittedly owned by previous landlady who had sold the same to the petitioner in the month of February, 2005. Learned counsel for respondent No,1 has further submitted that power of attorney executed by the petitioner in favour of attorney in the year 2003 did not contain the power to initiate ejectment application against Respondent No,1. Learned counsel has placed reliance on the case of MUHAMMAD AKHTAR VS. MST. MANNA AND OTHERS (2001 SCMR 1700) relevant whereof is quoted hereunder:--- ".... It is well-settled by now that "the power of attorney must be strictly construed and it is necessary to show that on a fair construction of the whole instrument the authority in question may be found within the four corners of the instrument either in express terms or by necessary implication". AIR 1928 Bom.
225. In such like cases subsequent disputes and controversies have become a common phenomena in our society and in this background a similar proposition was discussed in case titled Fida Muhammad v. Pir Muhammad Khan PLD 1985 SC 341 with the following observations: - "It is wrong to assume that every 'general' power-of-attorney on account of the said description means and includes the power to alienate/dispose of property of the principal. In order to achieve that object it must contain a clear separate clause devoted to the said object. The draftsman must pay particular attention to such a clause if intended to be included in the power-of-attorney with a view to avoid any uncertainty or vagueness. Implied authority to alienate property, would not be readily deduceable from words spoken or written which do not clearly convey the principal's knowledge, intention and consent about the same. The Courts have to be vigilant particularly when the allegation by the principal is of fraud and/or misrepresentation. The second aspect which needs caution on question of validity of acts under a power of attorney is that notwithstanding an authority to alienate principal's property, the attorney is not absolved from his two essential obligations, amongst others firstly in cases of difficulty (and it will be a case of difficulty if the power of attorney is susceptible to doubt about its interpretation) to use all reasonable diligence in communicating with the principal and seeking to obtain his instructions; and secondly, if the agent deals on his own account with the property under agency, e.g., if he purchases it himself or for his own benefit, he in his own interest should obtain the consent of the principal in that behalf after acquainting him with all material circumstances on the subject, failing which the principal is at liberty to repudiate the transaction."
15. From the perusal of the record it is clear that power of attorney was executed in favour of attorney Syed Khalid Ali by the petitioner in the year 2003 whereas the property was purchased by petitioner in February, 2005. Since petitioner was neither the owner of the property nor landlord of respondent No,1 in the year 2003 hence he had no authority to appoint the above attorney for filing of rent case against the present respondent No, 1.
16. In the present petition the petitioner has pressed only one ground i,e, default in payment of rent.
It is the case of petitioner that notice under section 18 of Ordinance 1979 was served upon respondent No,1 but he did not tender rent to the new landlord in response to the notice served upon the respondent No,
1. A perusal of record shows that previous landlady had sent an intimation notice on 23rd February, 2005 but it did not contain the address of the new landlord in the circumstances respondent No,1 through his advocate served a notice upon previous landlady asking for copy of the sale-deed to know the whereabouts of present petitioner. Since copy as asked by respondent No,1 was not supplied by the previous landlady the respondent No,1 in the circumstances tendered the rent for March, 2005 to the previous landlady and on her refusal the rent for the said month was deposited by respondent No,1 in MRC No,281 of 2005 before IIIrd Senior Civil Judge and Rent Controller, Karachi-Central, in the name of previous landlady. However, after service of ejectment application filed in December, 2005 by present petitioner the respondent No,1 tendered the rent for January, 2006 to the present petitioner and on his refusal started depositing rent in MRC No,16 of 2006 before IIIrd Senior Civil Judge and Rent Controller, Karachi-Central, in the name of present petitioner.
17. To deal with the above point it will be advantageous to quote the provisions of section 18 of Ordinance, 1979:-- "18. Change in ownership.-- Where the ownership of a premises in possession of the tenant has been transferred by sale, gift, inheritance or by such other mode, the new owner shall send an intimation of such transfer in writing by registered post to the tenant and the tenant shall not be deemed to have defaulted in payment of the rent for the purpose of clause (ii) of subsection (2) of section 15, if the rent due is paid within thirty days from the date when the intimation should, in normal course, have reached the tenant."
18. A plain reading of the above section shows that it provides that where the ownership of a premises in possession of a tenant has been transferred by sale, gift, inheritance or by such other mode, the new owner is obliged to send an intimation of such transfer in writing by registered post to the tenant. It also provides that the tenant shall not be deemed to have defaulted in payment for the purpose of clause (ii) of subsection (2) of section 15 of the Ordinance, 1979 if the rent due is paid within 30 days from the date when the intimation should, in normal course, have reached the tenant.
19. The examination of the above quoted provisions shows that the object of the above section 18 of Ordinance 1979 seems to provide protection to a tenant against the ground of default if he is unable to pay rent because of any change in the ownership of rented premises on account of sale, gift, inheritance or by any other recognized mode of transfer. It is not uncommon that formalities to complete transfer of ownership in respect of an immovable property takes quite long period and sometime nobody accepts rent from the tenant during the interregnum till the completion of formalities. So above section makes it mandatory on the part of the new owner to serve a notice under registered post upon his tenant and if the latter, upon the receipt of such notice, pays rent due within thirty days from the date when the intimation should, in normal course, have reached the tenant he shall not be deemed to have defaulted. Since it is a beneficial provision, designed and intended for the benefit of tenants, it is to be construed liberally so that it may suppress the mischief aimed at, and may advance remedy. In my view a notice in terms of above section is mandatory even when a transfer of ownership pertains to a partial interest. It may be observed that if a new owner of a premises fails to serve above notice on his tenant and if the latter, without having knowledge of the transfer of ownership continues to pay rent to his previous landlord, he shall not be liable to pay rent to the new owner for the period, for which the tenant might have paid rent to the previous owner. (Reference can be made to 1992 SCMR 2400).
20. Applying the above rule to the present case it will be seen that service of notice under section 18 of Ordinance 1979 by the present petitioner upon the respondent No,1 was not proved. Neither the postal receipt was brought on record nor any other material was placed before the learned Rent Controller which established the service of notice under section 18 of Ordinance 1979 upon respondent No,1 by the present petitioner. In the circumstances the rent deposited by respondent No,1 from March, 2005 till the service of notice of ejectment application upon respondent No,1 in MRC No,281 of 2005 shall be a valid tender as the present respondent No,1 did not know the whereabouts of petitioner, in the circumstances he tendered the rent to the previous landlady and on her refusal it was deposited in Court as above. After service of ejectment application rent for January, 2006 was tendered through money-order to the petitioner but on his refusal respondent No,1 started depositing rent in MRC No,16 of 2006. In the circumstances the respondent No,1 cannot be held a wilful defaulter in payment of rent.
21. Learned trial Court has dealt with the point of service of notice under section 18 of the Ordinance, 1979 upon the respondent No,1 as under:-- The applicant in his cross-examination has admitted that address of the applicant or his attorney is not mentioned in the notice produced by him at Exh.A/1/D served by the previous landlady upon the opponent. The applicant has admitted that he has not filed copy of A/D and TCS receipt with notice dated 23-2-2005 produced at Exh.A/1/E. Although the applicant has said that he delivered his notice dated 23-2-2005 to brother of opponent by hand but admittedly he has not mentioned in the plaint and affidavit-in-evidence that his notice produced at Exh.A/1/E was given by hand to brother of the. Opponent. The applicant has admitted that receiving signature of the opponent or his brother is not mentioned on the notice produced by him at Exh.A/1 /E. Here a question arises as to why the applicant did not obtain receiving signature of the opponent or his brother on his own notice when according to him both notices of previous landlady and applicant were given together to the opponent. In these circumstances it cannot be said that notices dated 23-2-2005 and 4-8-2005 of applicant produced at Exhs.A/1/E and A/1/F were served upon the opponent.
Whereas admittedly address of the applicant or his attorney is not mentioned in the notice dated 23-2-2005 served by previous landlady upon the opponent. Although the applicant has said that he does not know about sending the rent by the opponent to previous landlady through money order and on her refusal it was deposited in MRC No,281 of 2005 but the applicant. Voluntarily said he came to know about the said MRC in July, 2005. However, the applicant has admitted that the opponent is depositing rent in the name of applicant and his attorney in MRC No,I6 of 2006 in the Court of IIIrd Rent Controller."
22. Learned trial Court further concluded with regard to service of notice under section 18 of the Ordinance, 1979 as under:--- "From the above discussion I have come to the conclusion that only one notice dated 23-2-2005 sent by the previous landlady Shahida Begum through her husband was served upon the opponent regarding change of ownership and admittedly address of new owner or his attorney were not given in the said notice, therefore, if the opponent sent the rent to the previous landlady through money order and on her refusal deposited the same in the Court and after filing of this case the opponent sent the rent to the applicant through money order at the rate of Rs,500/- per month for each shop and on refusal the opponent deposited the rent in court in the name of applicant and his attorney, it cannot be said a wilful default towards payment of rent. Accordingly point No,1 is answered as not proved."
23. Learned Rent Controller with regard to rate of rent of the premises under occupation of the respondent No,1 has recorded as under:-- The applicant in his plaint as well as affidavit-in-evidence has claimed the rent at the rate of Rs,200/- for each shop and the applicant in his cross- examination has said that he does not know that the previous landlady used to collect rent at the rate of Rs,500/- per month for each shop but brother of the applicant Syed Shahid Ali in his cross-examination has clearly admitted that rent of each shop in question was Rs, 500/- per month with the previous owner. Admittedly rent is not enhanced by any competent authority, therefore how the applicant has claimed rent from the opponent at the rate of Rs,2,000/- per month for each shop."<.i>
24. With regard to service of rent case upon the respondent No,1, the learned Rent Controller dealt with the issue in the following words:-- Although the opponent has admitted that notice of this rent case was served upon him in December, 2005 and he deposited rent in the name of applicant in the Court of IIIrd Senior Civil.
Judge, in MRC No,16 of 2005 in spite of depositing the same in this Court but it does not mean that there is a wilful default because according to the applicant the rent was deposited by the opponent upto December, 2005 in the name of previous owner in the Court of 111rd Senior Civil Judge, Karachi, Central, therefore, if the opponent deposited rent in the name of applicant in the same Court it can be said a bona fide mistake not a wilful default."
25. With regard to maintainability of rent case filed by the attorney on the basis of power of attorney executed by petitioner in favour of his brother prior to purchase of the subject property, learned Rent Controller has dealt with the point in the following words:-- The applicant has filed this rent case through his attorney/brother Syed Khalid Ali who has produced copy of General Powers of Attorney to Exh.A/1/A. The applicant's attorney has admitted that the said power of attorney was not filed by him with the plaint. He has admitted that property in question was purchased by the applicant on 23-2-2005 by sale deed while power of attorney produced at Exh.A/1/A was executed on 23-5-2003 and no other power of attorney was executed by the applicant in favour of Syed Khalid Ali after 23-5-2003. He has admitted that he and the applicant were not owners and attorney of property in question on 23-5-2003 it shows that power of attorney produced by the applicant's attorney is of the date even prior to ownership of the applicant in respect of the property in question."
26. The above findings of the learned Rent Controller were challenged by the petitioner before the learned Appellate Court in Appeal No,198 of 2007. Learned Appellate Court with regard to service of notice under section 18 of the Ordinance, 1979 recorded its 'findings on the issue as under:-- "Perusal of record reveals that appellant/ applicant in his cross-examination has admitted that address of the applicant of his attorney is not mentioned in the notice produced by him at Exh.A/1/D served by the previous landlady upon the opponent. He also admitted that he has not filed copy of A/Defendant and TCS receipt with notice dated 23-2-2005. Though the applicant has deposed that he delivered his notice dated 23-2-2005 to brother of opponent by hand. It is an admitted position that applicant has not mentioned these facts in the plaint or his affidavit-in- evidence. He also admitted that receiving signature of the opponent or his brother is not mentioned on the notice, for which I am of the considered view that the appellant/applicant has failed to established through any circumstantial/ documentary evidence that he after served the respondent/opponent with the notice under section 18 of the Sindh Rented Premises Ordinance, 1979. "
27. Learned Appellate Court while dealing with point of default in payment of rent allegedly committed by the respondent No,1, concluded as under:-- It is established that according to the appellant/applicant himself the rent was offered by the respondent/opponent in the month March, 2005 at the rate of Rs,2000/- per month which was refused to be received by the applicant's attorney. Perusal of record further, reveals that the respondent/opponent has admitted that notice of this rent case was served upon him in the month December, 2005 and he started depositing the rent in the name of appellant/applicant in MRC No,16 of 2005 as the respondent/opponent has deposited the rent upto December, 2005 in the name of previous owner in M.R.C.No,281 of 2005, in view of above discussion, it is established that Opponent/ respondent has not committed any default in payment of rent and the findings of the trial Court on the point of default in payment of rent are quite legal and does not require any interference by this Court."
28: If the findings of both the Courts below are read with the evidence on record, it will be noticed that entire evidence has been taken into consideration while passing the judgment by the leaned original Court or the Appellate Court. It was manifestly clear on the record that power of attorney was executed in favour of petitioner's attorney in the year 2003, whereas the property in question was purchased by the petitioner in the year 2005, meaning thereby in the year 2003 the petitioner was not the owner of the property, hence he had no authority to execute power of attorney in favour of his brother to file the ejectment application against the present respondent No,1, who was the tenant of previous landlady. It was also apparent on record that on purchase of the property by the petitioner notice under section 18 of the Ordinance, 1979 was served by the previous landlady on 23-2-2005 intimating the respondent No,
1. That the property has been sold to the petitioner, but such notice did not contain address of the petitioner. In the circumstances the Advocate for respondent No,1 addressed a notice to the previous landlady asking for copy of sale-deed in favour of petitioner to know the address of the petitioner, but the same was not sent to respondent No,1 or his Advocate. In the circumstances, rent for the month of March, 2005 was tendered to the previous landlady who refused to accept the same, in the circumstances the petitioner started depositing monthly rent from March, 2005 in the name of previous landlady in MRC No,281 of 2005 before the learned Rent Controller. It is further clear from the record that ejectment application was filed in December, 2005. Rent of the January, 2006 was tendered through money-order by respondent No,1 to the petitioner, but on his refusal the respondent No,1 started depositing the rent in the name of present petitioner in Court in MRC No,16 of 2006. It is also clear that when application under section 16(1) of the Ordinance, 1979 was filed by the petitioner and order was passed by the learned Rent Controller authorizing the respondent No,1 to withdraw the amount from the above mentioned M.R.Cs. And deposited the same in the main rent case. Accordingly respondent No,1 withdrew the amount from M.R.Cs. Mentioned hereinabove and deposited the same in compliance with Courts order on application under section 16(1) of the Ordinance, 1979. In this way, the respondent No,1 appears to have not committed any wilful default in payment of rent.
29. Learned counsel for the petitioner has taken me to entire evidence available on record but could not point out any misreading or non-reading of material evidence by the Courts below.
Learned counsel could not point out any illegality committed by the Courts below.
30. The judgment cited by learned counsel for the petitioner 200.1 SCMR 678 in the reported case it was held that provisions of section 18 of Ordinance, 1979 can be considered to have been substantially complied with if record speaks that intimation about transfer of ownership in favour of landlord has been conveyed to the tenant by means of convincing source but in the present case there was no material available before the learned trial Court to conclude that respondent No,1 had the knowledge of transfer of property in the name of petitioner and respondent No,1 also had the knowledge of address of the petitioner, hence the case relied upon by learned counsel is distinguishable on facts. The other case relied, upon by the learned counsel for the petitioner 2001 SCMR 1888 deals with interpretation of provision of section 10(3) of Ordinance 1979 and has no application to the point in issue. The other judgment cited by learned counsel for the petitioner 1999 SCMR 348 is distinguishable on facts and does not advance the case of petitioner. Similarly, the case cited by learned counsel for the petitioner 2001 SCMR 440 is also distinguishable on facts and does not advance the case of petitioner. So far the cases cited by learned counsel for the petitioner 2008 CLC 431 and SBLR 2007 Sindh 1033 they are also distinguishable on facts as in the reported judgments the tenant continue to deposit rent in Court in the name of previous owner in spite of service of notice by new landlord as previous owner had refused to accept the same. The next case cited by learned counsel for the petitioner 2006 SCMR 1501 deals with the flatter where rent was directly deposited in Court without tendering to the landlord but in the present case rent was tendered to new landlord and on his refusal respondent No,1 deposited in Court. The other case cited by learned counsel for the petitioner 2000 SCMR 1924 is also distinguishable on facts with the present case as in the reported case tenant failed to prove payment of rent through cheques and counterfoils of such cheques were not exhibited nor the date of sending cheques were mentioned. Learned counsel for the petitioner also cited SBLR 2009 Sindh 816 which relates to Cantonment Rent Restriction Act, 1963. In the reported case rent was deposited in a Court having no jurisdiction. Learned counsel for the petitioner cited the cases 2010 MLD 222, 2003 MLD 480 and 2010 MLD 1543 they are also distinguishable on facts with the case in hand.
31. Learned counsel for the petitioner has failed to point out any illegality in the impugned judgments passed by the two courts below hence interference is declined in exercise of power under Article 199 of the Constitution of Pakistan. Accordingly,' this petition is dismissed with no order as to cost.