The appellant above-named, being aggrieved by judgment dated 23-8-1979 of learned Second Additional District Judge, Karachi by which appellant's First Appeal No. 505 of 1974 was dismissed by him and order dated 5-9-1974 of the learned 10th Civil Judge and Rent Controller, Karachi passed in Rent Case No. 2960 of 1971 was upheld, has preferred this Second Appeal on the following facts and grounds :-
2. Briefly stated the facts as alleged giving rise to this appeal are, that the appellant is the tenant of Mrs. Mehrunnisa, the predecessor-in-title of the present respondents, in respect of the premises situated on plot No. 1435, Block 15, Federal `B' Area, Karachi at a rent of Rs. 140 per month, exclu-- sively of water and electricity charges. The tenancy was created under a written Tenancy Agreement dated 1-1-1971 between the parties for 11 months. The respondents predecessor-in-title Mrs. Mehrunnisa had filed the rent appli--cation for eviction of the appellant, on the grounds inter alia, that the appellant I has been persistent defaulter in payment of rent and had not paid rent upto 31-12-1971 and is in arrears amounting to Rs. 440. That the appel--lant has sublet the said premises to one Moin A. Khan without the permis--sion/consent of her. That she requires the said premises in good faith for her own personal use and that of her children. She therefore prayed in her ejectment application, that the appellant be ejected from the said premises.
3. The appellant filed his written statement, wherein he objected to the maintainability of the rent application on the grounds inter alia that the rent application as framed was not maintainable.
That special power-of-attorney given to the attorney was not a proper document authorising the attorney to act on behalf of the landlady. It was further denied that the appellant had committed any default in payment of rent as alleged and that Mrs. Mehrunnisa (original applicant) required the said premises for her personal bona fide use and/or that of her children. It was further alleged in the said written statement, that the landlady had other number of houses in Karachi and it is her business to earn her livelihood through profit of rent. That the landlady never paid electricity and water charges instead the appellant had been paying the same. It was further denied that the appellant had sub-Jetted the said premises to one Moin A. Khan who in fact is his son---in-law and is living with him as a member of his family since December 1970.
It was further alleged in the said written statement, that rent application was mala fide and was filed to harass the appellant in order to extract enhanced rent at the rent of Rs. 200 per month as had been demanded by the landlady and on his refusal to accede to this demand, he was threatened by the landlady to be ejected from the said premises. It was, therefore prayed in the said written statement that rent application was mala fide and was liable to be dismissed.
4. On the pleadings of the parties the learned Rent Controller framed the following issues
(1) Whether the case is maintainable 7
(2) Whether Mehrunnisa is the landlady of the premises in dispute ?
(3) Whether the applicant has several houses in Karachi ?
(4) Whether water and electric charges were payable by the applicant?
(5) Whether the opponent has committed any default in payment of rent ? If so, its effect?
(6) Whether the premises is required for the personal bona fide use of the applicant ?
(7) Whether the premises has been sublet by the opponent? (8) What should the order be ?
5. On the basis of evidence oral as well as documentary, the learned Rant Controller gave his findings on Issue No. 1 as not pressed and on Issues Nos. 3, 4, 5 and 7 in the negative and on Issues Nos. 2 and 6 in the affirma--tive, holding that the respondent was landlady of the appellant and that she requires the said premises in good faith for her own personal use and that of her children, as a result thereof ordered ejectment of the appellant from the said premises by his impugned order dated 9th September, 1974.
6. Against the above-mentioned order of the learned Rent Controller, appellant filed I. A. No. 505 of 1974, before II Additional District Judge, Karachi, who has pleased to dismiss the same vide his judgment dated 23-8-1979, for the reasons given in the said judgment. Mrs. Mehrunnisa the landlady during pendency of the First Appeal present respondents were brought on record as her L.Rs. First Appellant above-named, being aggrieved by both this order and judgment has preferred this Second Appeal, on the grounds mentioned in memo of appeal.
7. I have heard the learned counsel of the parties and have gone through the record and proceedings of the learned Rent Controller and have taken into consideration various authorities cited before me.
8. The first contention raised by the learned Advocate for the appellant before me was that the ejectment application filed by the landlady was not maintainable as t he same was neither signed and verified by her but it was signed, verified and presented by one Mirza Muhammad Yousuf, as her Special Attorney , on the basis of special power-of-attorney which is available on the trial Court file. According to the learned Advocate for the appellant the perusal of the said special power-of- attorney as it has, that that the attorney had not been given specific power to sign, verify and present the eject--ment application in question and further the said special power-of-attorney is not a proper power-of-attorney, as it has not been attested as required by law. And no evidence has been led to prove, that the same had been executed by the landlady, and as such the said ejectment application was not properly and legally filed by her. In support of this contention the learned Advocate for the appellant relied upon cases reported in PLD 1964 Lah. E48, PLD 1969 Kar.
123 and AIR 1944 Bom. 201. I have gone through the special power-of-attorney dated 20th December, 1971 which is on the record of the trial Court and find that on the basis of this power-of- attorney, the ejectment application has been signed by Mr. Mirza Muhammad Yousuf, who is also the son of the applicant. I further find that in the written statement filed by the appellant before the learned Rent Controller a specific plea had been taken in respect of power-of-attorney in question as follows :- "The special power of attorney does not have proper power to verify and sign on behalf of the appellant."
In spite of the above specific plea the learned Rent Controller did not frame issue in this connection, but instead of this it seems he framed a general issue in the following terms :- "Whether the case is maintainable as issue No. 1 ?"
Further I find that learned Rent Controller in his order dated 9th Sep--tember, 1974 has mentioned that the above-mentioned general issue, which was issue No. 1 framed by him, was not pressed and as such the learned Rent Controller did not give his finding on the specific plea raised by the appellant in respect of power of attorney in question, regarding the authority of the attorney to sign, verify and present the said ejectment application in question.
9. I also find from the memo of appeal, of the first appeal, which was filed before the learned Second Additional District Judge, Karachi, that appellant in ground No. 3 of the said memo. Had again raised the question of competency of the attorney to sign and verify the ejectment application in question. The learned Second Additional District Judge; Karachi while deal--ing with this ground that was raised by the appellant -before him observed, that since the attorney was the son of the landlady and was authorised by said special power of attorney to act on her behalf in this case, there was nothing wrong with the said application, if the same was signed and verified by him an4 as such the said application was maintainable. In a case of Mehdi Hasan v. Ghulam Ahmad and others (PLD 1964 Lah. 648it has been held, that respondent raising objec--tion to the validity of the power of attorney filed on behalf of the petitioner in ejectment application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, the said objection must be disposed of before the said application could be granted. Similarly in the case of Messrs Eagle Star Insurance v. Messrs Usman Sons Ltd. (PLD 1969 Kar. 123) cited by the learned Advocate for the appellant, it has been held, that the power of attorney must be construed strictly and the agent can neither go beyond nor deciate from terms of the power of attorney. The last case which has been relied upon by the learned Advocate for the appellant in this connection is the one reported in AIR 1944 Born. 201 which also lays down that specific power for presentation of plaint etc. Is necessary. I am in respectful agree--ment with the law laid down by these cases, that attorney cannot go beyond the power specifically granted to him. In view of my above conclusions, I would like to produce the special power of attorney dated 20th December, 1971, on the basis of which the ejectment application filed in the presence of landlady was signed, verified, and presented in the Court of learned Rent Controller, by her attorney.
Special Power of Attorney KNOW ALL MEN by these presents that I, Mst. Mehrunnisa wife of Muhammad Ibrahim Mirza, Muslim adult, resident of No. 137/17, Federal B Area, Karachi do hereby constitute, ordain and appoint Muhammad Yousuf Mirza son of Muhammad Ibrahim Mirza (my son) Muslim, adult, resident of 1371/15, Federal B Area, Karachi, to be my Special Attorney for me and on my behalf to persue, defend and look after my interests in the Court of Civil Judge, 1st Class, Rent Controller, No. 9, Karachi, in an Application under section 13 West Pakistan Urban Rent Restriction Ordinance, 1959, entitled Mst. Mehrunnisa v. Munir Hussain in respect of House No. 1435/15, Federal B. Area, Karachi, to do all necessary acts, deeds and Things conducive to the pursuing to swear affidavits, sign and file written statements on my be--half in the above case.
I hereby agree that whatever shall be done by the abovesaid attorney shall be conclusive and binding upto me and my heirs administrators and assigns as, if it would have been done by me if personally present.
In witness whereof I have signed this. power of attorney at Karachi this 20th day of December, 1971.
Witnesses- (Sd.)
(Sd.)
Executant.
10. Prima facie there is nothing in the above special power of attorney which authorised the attorney to sign, verify and present the ejectment appli--cation against the appellant. The learned Advocate for the respondent was also unable to point out anything in the above special power of attorney to show that the attorney was authorised to sign, verify and present the ejectment application in question.
11. The learned Rent Controller has not dealt with the above question in his order dated 9th September, 197.1. The learned Second Additional District Judge, Karachi has come to the conclusion that the ejectment appli--cation which was signed, verified a94 presented by the attorney was main--tainable for the reasons given by him ~ his judgment dated 23rd August, 1979. h am afraid I cannot agree with the reasonings given by the learned Second Additional District Judge, Karachi on :his issue in view of the wording of the special power of attorney, on the basis of the authorities cited by the learned Advocate for the appellant. It may further be noted that the special power of attorney alleged to have executed by Mst. Mehrunnisa the landlady (the original applicant) is not at all attested either by Oath Commissioner, Magistrate or Notary Public and as such no presumption under section 85 of the Evidence Act could be raised in respect thereof that the said power of attorney was really executed by the original applicant in favour of her son Mirza Muhammad Yousuf, in the absence of any evidence on record, that said power of attorney was in fact executed by the original applicant Mst. Mehrunnisa. I have gone through the evidence of P. W. 1 Mirza Muhammad Yousuf and I do not find anything in his statement to show, that the power of attorney in question was executed by his mother in his favour nor he has identified the signature of his mother on the said power of attorney. Even the attesting witness of the said power of attorney has not been produced to identify the signature of Mrt. Mehrunnisa on the said power of attorney and to state that the said power attorney was executed by landlady, in his presence. In the absence of such evidence on record and on account of non---applicability of section 85 of the Evidence Act to the special power of attorney in question for want of attestation, there is nothing on record to show that the special power of attorney in question was in fact executed by Mst.
Mehrunnisa in favour of her son Mr. Mirza Muhammad Yousuf, who has signed, verified and presented the ejectment application in question, before the learned Rent Controller.
12. Therefore, in view of my above conclusions I am of the opinion, that the ejectment application in question on the basis of which impugned orders in question have been passed was not validly instituted for and on behalf of original applicant Mst. Mehrunnisa and as such I allow the above appeal with no orders as to costs and set aside the order dated 9-9-1974 of the learned Xth Civil .Judge and Rent Controller, Karachi and judgment dated 23rd August, 1979 of the Second Additional District Judge, Karachi on this ground alone without going into the merits of the ejectment applica--tion in question.
13. Before parting with the above appeal I would like to mention that the present respondents will be at liberty to file a fresh ejectment application against the appellant, if they are so advised on any of the ground that may be available to them, under the provision of Sind Rented Premises Ordinance, 1979, as the impugned order and judgment have been set aside by me on technical ground without consideration of merits.