MAMOON RASHID SHEIKH, J.---Through this single order . F.A.O. No,27 of 2012 and F.A.Os No,13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28, 29, 30, 31, 32, 33, 34, 35 and 36 of 2012 shall be decided, as common questions of law and facts arise therein.
2. The appeals have been directed against the orders dated 13-12-2011 passed by the learned Additional Rent Controller, Rawalpindi Cantt., whereby the appellants in all the appeals, who are tenants in the various shops, in the multi-storey building commonly known as Bashir Plaza situated at 64-Adamjee Road,Rawalpindi Cantt. (hereinafter referred to as "the demised premises") have been ordered to be evicted from the demised premises.
3. The brief facts giving rise to the appeals are to the effect that the respondents, who are common in each appeal (hereinafter referred to as. "the respondents"), brought 24 (twenty-four) separate ejectment petitions under section 17 of the Cantonments Rent Restriction Act, 1963, against the different appellants in each appeal (hereinafter collectively referred to as "the appellants") on the sole ground of reconstruction of the demised premises. The appellants resisted the ejectment petitions and on the basis of the divergent pleadings of the parties the learned Additional Rent Controller framed the following common Issues in each ejectment petition:--
(1) Whether building plan of the suit property has been approved and petitioners want to construct the suit property? OPP
(2) Whether the ejectment petition is not maintainable in view of preliminary objections raised by the respondent? OPR
(3) Relief.
' On the basis of the evidence led by the parties the learned Additional Rent Controller. Decided.
Issues Nos.1 and 2 in favour of the respondents. As a consequence, the respondents' ejectment petitions were accepted and through the impugned order dated 13-12-2011 the appellants were, directed to vacate the demised premises and to hand over the possession thereof to the respondents within two months of passing of the impugned ejectment orders.
4. The learned counsel for the appellants submits that the impugned orders have been passed by the learned Additional Rent Controller by mis-appreciation of facts and misapplication of law.
5. Contends that the ejectment petitions were filed through one T. Z. Farooqi who claims to be the general attorney of the respondents (hereinafter referred to as "the attorney"). The copies of the various general powers of attorney brought on the record by the respondents do not confer any such power to the attorney. Moreover, the demised premises are admittedly a joint property. They attorney has not been conferred any power by the respondents to apply for and obtain a sanctioned site plan for the purposes of reconstruction of the demised premises nor any power has been conferred upon him to demolish the demised premises. As these powers have not been conferred the ejectment petitions brought by the attorney on behalf of the respondents were not competent. In cases of personal need or default one owner can file an ejectment petition for and on behalf of all the owners but, in the case of reconstruction individual authorization was required which has not been obtained by the attorney. Even otherwise, the powers of attorney executed in favour of the attorney do not mention the demised premises. It is settled law that powers of attorney are to be strictly construed. The ejectment petitions were, therefore, not competently filed nor any evidence led on behalf of the other respondents by the attorney can be read in support of the ejectment petitions.
6. Further contends that the learned Additional Rent Controller failed to appreciate that the ejectment petitions were mala fide and had been brought merely with a view to demanding an exorbitant rate of rent from the appellants.
7. Also contends that the norms of .Natural justice have not been followed by the learned Additional Rent Controller whilst passing the impugned orders. The appellants were not provided with an opportunity to lead their evidence. In fact all the ejectment petitions were decided in a mechanical manner and except for variation in the parties names the impugned ejectment orders in each ejectment petition are exactly the same.
8. Submits that F.A.O. No,27 of 2012 arises out of the ejectment order passed 'in Ejectment Petition No,1 of 2010 entitled "Arifa Farooqi and 7 others v. Altaf Hussain". In the said ejectment petition the appellant/respondent in his reply had raised a number of preliminary objections. The learned Additional Rent Controller, however, upon holding that the respondents have been able to establish that they intend to reconstruct the demised premises and had also obtained the necessary sanctioned plan from the Cantonment Board, Rawalpindi, further held that since the case of the respondents is established vis-a-vis the ground of reconstruction, as such, there is no requirement for giving a finding on Issue No,2. The said issue was required to be decided for the reason that it was based on a number of preliminary objections having been raised by the appellant/respondent. The same position obtains in the other appeals and their respective ejectment petitions. Indeed, the finding of the learned Additional Rent Controller on Issue No,2 in all the ejectment petitions is a non-speaking order and has been passed in violation of the provisions of Section 24-A of the General Clauses Act, 1897. The appeals are liable to be accepted on this ground alone.
9. Further submits that even otherwise the finding of the learned Additional Rent Controller on Issue No. 1 is erroneous and is a result of misreading and non-reading of evidence. Reiterates the arguments in respect of the respondents attorney being not empowered to apply for and obtain the sanctioned building plan and to reconstruct the demised premises. Further submits that the finding of the learned Additional Rent Controller on. Issue No. 1 in all ejectment petitions/appeals including F.A.O. No,27 of 2012 is liable to be set aside on this ground alone. In the case of the other appeals submits that there is an additional ground available as during the course of hearing of the ejectment petitions on 5-10-2011 the learned counsel for the respondents made a statement in the absence of the appellants to the effect that the evidence of the appellant/respondent in Ejectment Petition No,1 of 2010 has been recorded, the cross-examination on the said appellant/respondent may be treated as the cross-examination of the appellants/respondents in the other ejectment petitions. The learned Additional Rent Controller on the basis of the statement of the learned counsel for the respondents proceeded to do so and made verbatim copies of the cross- examination of the appellant/respondent in Ejectment Petition No,1 of 2010 in all the other ejectment petitions with the minor variation that the name of each respective appellant/respondent was inserted therein. As a consequence, the appellants were denied the opportunity of leading evidence.
10. Prays for setting aside of the impugned orders and remand of the cases for recordal of evidence afresh and separate decision on the basis thereof on each Issue. Relies on the judgments reported as Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal Niers and others (PLD 1985 SC 341), Syed Nizam Ali and 2 others v. Ghulam Shah through Legal Heirs and another (PLD 2000 Lahore 168), Mst. Nazira Begum v. Mir Hussain Khan and others (PLD 1984 AJ&K 1), Malik Riaz Ahmad and others v. Mian Inayat Ullah and others 1992 SCMR 1488 and Ilyas Akhtar and 2 others v. Khan Zaman and another (2001 MLD 1617).
11. The learned counsel for the respondents controverts the stance of the learned counsel for the appellants. Maintains that the order dated 5-10-2011 whereby the cross-examination of the appellant/ respondent in Ejectment Petition No,1 of 2010 was directed to be written and read as the cross-examination of the other appellants in their respective ejectment petitions was passed with the consent of the parties concerned. Further submits that the respondents were able to establish their case on the issue of reconstruction of the demised premises. The respondents have obtained a sanctioned building plan which was brought on the record, hence, the respondents' case stood established, therefore, there was no need for leading any further evidence. No finding was therefore, required on Issue No,2.
12. As to the contention of the learned counsel for the appellants that the ejectment petitions were filed unauthorizedly by the attorney of the respondents, submits that admittedly the very same attorney let out the demised premises to the appellants and they have been paying rent to the said attorney who in effect is the landlord of the appellants. Relies on the definition of the term landlord as defined in section 2(g) of the Act, ibid. Further submits that the attorney of the respondents was duly authorized through the powers of attorney executed in his favour. The powers of attorney have been brought on the record and authorize the attorney to reconstruct the demised premises and to obtain the requisite authorizations including but no limited to obtaining a sanctioned building plan. The attorney of the respondents performed all these functions as the attorney of the respondents and the landlord of the appellants. The appellants, therefore, cannot challenge the authority of the respondents' attorney at this stage.
13. The learned counsel further submits that the findings of the learned Additional Rent Controller are in accordance with the law on the subject and are unexceptionable. Prays for dismissal of the appeals. Relies on the judgments reported as Kifayatullah Bangash v. Umar Gul (2000 SCMR 1080) and Manzoor Elahi v. Mst. Surraya Jabin (PLD 2004 Peshawar 62).
14. Heard. Record perused.
15. The relationship of landlord and tenant is admitted by the appellants. The sole ground on which the ejectment petitions were brought against the appellants is the reconstruction of the building forming the demised premises. The respondents through their attorney who has been contended by the learned counsel for the respondents to be the landlord of the appellants purportedly applied for the necessary permissions/sanctions for reconstruction of the demised premises. This included applying for and obtaining a sanctioned building plan. The respondents led their evidence through their attorney who mainly reiterated the grounds of the ejectment petitions in his statements. He, however, did not adduce in evidence any of the documents relied upon by the respondents. The respondents in fact brought on record their documentary evidence through the statements of their learned counsel. The documents so brought on the record including an extract from the GLR in respect of the demised premises, the various powers of attorney executed in favour of the attorney of the respondents and copies of the sanctioning/covering letter and the sanctioned building plan. The learned Additional Rent Controller noted that since the extract of the GLR and the sanctioned building plan etc. Were photocopies, therefore, these documents would be marked as Mark-A, B & C respectively. The respondents, as said above, albeit having brought photocopies of the sanctioning letter and the sanctioned building plan on the record did not prove them in accordance with the law. The learned Additional Rent Controller, however, on the basis of the same proceeded to decide Issue No,1, which pertains to reconstruction of the demised premises, against the appellant. The learned Additional Rent Controller has, therefore, erroneously arrived at the decision in respect to Issue No,1 in all ejectment petitions.
16. In addition to the above the learned Additional Rent Controller having found Issue No.1 against the appellants has decided Issue No. 2 in a perfunctory manner without adverting to any of the preliminary objections having been raised by the appellants. I find force in the contention of the learned counsel for the appellants that the decision of the learned Additional Rent Controller on Issue No. 2 has been passed in violation of the provisions of section 24-A of the General Clauses Act, 1897. The learned Additional Rent Controller has, therefore, further erred in law in deciding Issue No. 2 in the manner he has.
17. Moreover, after having recorded the evidence of the appellant/respondent in Ejection Petition No, 1 of 2010 the learned Additional Rent Controller through order dated 5-10-2011 passed in the other ejectment petitions; on the basis of the statement of the learned counsel for the respondents which was to the effect that the cross-examination of the appellant/respondent in Ejectment Petition No.1 of 2010 may be copied down in the remaining ejectment petitions and may be read as the cross-examination of the appellants/respondents therein; proceeded to copy down the cross- examination of the appellant/ respondent in Ejectment Petition No,1 of 2010 in the remaining ejectment petitions with the variation that the name of the appellant/respondent in each ejectment petition was inserted therein. The learned Additional Rent Controller then proceeded to base its decision on the said copied cross-examination. There is nothing on the record to show that order dated 5-10-2011 was a consent order. Indeed, the order dated 5-10-2011 appears to have been passed behind the back of the remaining appellants. There is also nothing on the record to show that the appellant/respondent in Ejectment Petition No,1 of 2010 had been authorized by the other appellants to make a statement on their behalf nor has he been appointed as their attorney.
It is settled law that a person cannot act for and behalf of another person unless specifically or B impliedly authorized to do so. These appellants have, therefore, been denied the opportunity of leading their evidence, which is against the norms of natural justice.
18. In, proceeding in the above regrettable manner the learned Additional Rent Controller has denied an opportunity of a fair trail and due process to the appellants. The entitlement to a fair trial and due Additional Rent Controller has denied an opportunity of a fair trial and process is now a fundamental right after insertion of Article 10-A in the Constitution of the Islamic Republic of Pakistan, 1973, through the 18th Amendment. Courts are, therefore, required under the Constitution to ensure that parties receive a fair trial and due process is adhered to.
19. Now adverting to the objection of the learned counsel for the appellants regarding the authorization of the attorney of the respondents vis-a-vis filing of the ejectment petitions and leading evidence on behalf of the respondents and/or applying for obtaining the requisite authorization for reconstructing the demised premises. This objection has not been raised by the appellants in their defence filed against the ejectment petitions. The appellants, therefore, cannot raise this issue at this stage. However, having gone through the powers of the attorney in question I find that they confer wide ranging powers on the respondents' attorney which include resort to the Courts of law adducing evidence both oral as well as documentary and managing and looking after the property of the respondents. Moreover, I find force in the contention of the learned counsel for the respondents that the respondents' attorney has been accepted as the landlord by the appellants, therefore, it does not lie in their mouth to question his authority to file the ejectment petitions. The contention of the learned counsel for the appellants is, therefore, repelled.
20. Under the circumstances I accept these appeals, set aside the impugned ejectment orders dated 13-12-2011 passed by the learned Additional Rent Controller, Rawalpindi Cantt., and remand the matter to the learned Additional Rent Controller for decision afresh in each ejectment petition after affording an opportunity of leading additional evidence to the parties. The learned Additional Rent Controller is further directed to give a reasoned finding on each Issue on the basis of the evidence led by the parties.
21. The parties are directed to appear before the learned Additional Rent Controller, Rawalpindi Cantt. On 5-11-2012 without further notice.
22. It is further directed that the learned-Additional Rent Controller shall endeavour to decide the ejectment petitions expeditiously but no later than 31-1-2013.
23. There is no order as to costs.
24. The record be remitted forthwith.