' The appellant has preferred this appeal whereby he seeks to challenge the order of eviction passed by the learned 7th Rent Controller Karachi in Rent Case No, 3997 of 1975 on the application filed by the respondent/landlord on the ground that he requires the demised premises (ground floor tenement of the Bungalow No, 320, Bahadurabad, Karachi) bona fide and reasonably, that the accommodation presently in his occupation on the first floor of the said bungalow is insufficient for large number of his relations residing with him and that he wants to get married and live on the ground floor.
' The other plea of default in payment of rent on which ejectment was sought however was not accepted by the Rent Controller.
2. The learned counsel for the appellant challenged the legality and propriety of the above- mentioned order on the following two grounds :-
(i) That the ejectment application was filed by a person who was not competent to do so.
(ii) That the finding of the Rent Controller that the premises are required by the respondent bona fide and reasonably for his personal use and occupation is erroneous.
3. In support of the first ground, the learned counsel submitted that the application for ejectment was signed by one Mr. Fida All (brother of the respondent) who claimed to be the attorney of the respondent/landlord under alleged power of attorney dated 30th August, 1971. It was contended that the said power of attorney is attested by an Oath Commissioner and thus no presumption can be drawn that it had been so executed and authenticated as required by section 5 of the Evidence Act.
' The learned counsel accordingly argued that the order of the learned Rent Controller is liable to be set aside on the short ground that there was no proper application before him upon which any order of ejectment could be passed against the appellant.
' This objection of the learned counsel for the appellant cannot succeed for more than one reason.
In the first plea it may be mentioned that in the written statement it was stated that the application was not properly framed and the attorney of the applicant/respondent had no locus standi in the matter. This objection of the appellant however could not be construed to be an objection to the effect that the application had not been properly signed, verified or not competently filed in the Court. Obviously in view of the vagueness of such a plea in the written statement itself that at the time of framing of issues before the learned Rent Controller no such issue was framed/ pressed as to the validity of the power of attorney, or the competency of the application filed by Fida Ali, brother and attorney of the respondent.
4. Secondly, I find from the proceedings before the learned Rent Controller that not only Mr. Fida Ali the attorney of the respondent/landlord examined himself and submitted to cross-examination but even the landlord himself filed his own affidavit of evidence and submitted to cross- examination. The fact significant to be noted is that in the cross-examination the landlord expressly stated that Fida All is his attorney but no question was put to him challenging the power of attorney on the basis of which the case was filed or the capacity of the attorney Fida All to file it.
In the circumstances it is not open to the appellant to raise for the first time a plea that the power of attorney is not valid or that the application was not properly filed by Fida Ali or that he was not competent to do so.
5. Thirdly, it can hardly be disputed that even if due to any inadvertence or omission the application for ejectment was not signed by the respondent/landlord or that the person who signed it, was not an attorney within the meaning of Order III, C.P.C. The application for eviction filed under section 13 of the Ordinance of 1959 could not be rejected or thrown out on the said ground alone as the provisions of the Civil Procedure Code admittedly are not applicable to the proceedings before the Rent Controller. Reference, if necessary, be made to the observations made in the case of Muhammad All v. Sirajul Haq by Mr. Justice Dorab Patel (as he then was) where the learned Judge rejected similar pleas raised before him. Moreover, I find that the respondent/landlord ratified the action taken by his attorney (who is also his brother authorised to collect rent) who appeared in the witness-box and accepted that Mr. Fida Ali is his attorney and conceded/adopted the continuance of the ejectment proceedings. The appellant has not been able to show that for the alleged defect in the power of attorney or irregularity in the proceedings he is in any manner was prejudiced or that such an objection affected the decision of the case on merits. In the absence of any such prejudice. Such a plea cannot be allowed to be raised at this late stage. Reference may be made to the case of Nasrullah Khan v. Custodian where the honourable Supreme Court observed :- "A question of defect of procedure is always a question of procedure. Obviously when there is no point made of any defect of procedure by the party there is no prejudice to the party." It was further observed : "As already stated an objection as. To procedure has force only if prejudice be caused unless there be some strict statutory provision which vitiates proceedings in case of non-compliance and there is no such statutory provision here."
' The honourable Supreme Court further held that it is to he remembered that the respondent had no opportunity of meeting this point and it would be not proper, apart from all other considerations, to order a remand without there being any opportunity to the respondent to argue the point.
In view of the circumstances of this case and particularly in the absence of any issue having been pressed at the trial on behalf of the appellant and any prejudice having been shown, to have been1 2 caused to the appellant for alleged irregularity in the procedure it would not be proper 'as observed by the honourable Supreme Court in the case of Nasrullah Khan to now frame an issue and remand the case on the question of competency and validity of the power of attorney given by the respondent/landlord to his brother. Fida Ali particularly also for the reason that the respondent/landlord himself had appeared in the witness-box acknowledged his brother Fida Ali to be his attorney and thus ratified his acts. We have already noted above that the statement of the respondent/landlord was not challenged in his cross-examination.
6. The argument advanced by the learned counsel for the appellant that the power of attorney is to be strictly construed as laid down by the various Courts does not help the appellant on the facts and circumstances of the present case.
' Even otherwise the power of attorney authorising the attorney Fida Ali to receive rent from the tenants and in default of receipt of rent, to file case against the tenants and to get the tenements vacated from them and appoint Advocates for the purpose, in my opinion, conferred necessary authority on Mr. Fida Ali to have filed the present case.
7. As regards the merits of the case, on behalf of the landlord was examined Fida Ali. Brother of the applicant. The applicant Hassan All Azmi also examined himself. Statements of these witnesses supported the case as pleaded in the application for ejectment. It has been stated by Fida Ali as well as Hassan Ali Azmi in their deposition before the trial Court that the premises in question are required by the respondent/landlord who is living on the first floor of the same bungalow with a large number of his relations including widow of his real brother, seven sons and daughters of his deceased brother, his widow sister and another sister whose husband is too old to earn a living.
' It has also come on record that the applicant/landlord is the life President of the Ittehad Alam Islam and is the author of about 200 Arabic books and that in view of his position and status, a, number of ambassadors from other Muslim States attend the meetings of his Tanzim but due to lack of accommodation in the present premises in his occupation he has to arrange such meetings in hotels and residence of other members which is extremely expensive for him.
' The respondent/landlord also deposed that on the first floor he is residing with a large family (consisting of 17 members who are his dependants) he had to postpone his own marriage for want of accommodation so far and that he now requires the ground floor premises genuinely for his own personal use and occupation and that after the premises are vacated he would also have no problem for holding the meetings of his Tanzim on the ground floor open space at his own place.
The respondent was cross-examined at length but the statement made by him that he genuinely requires the premises for his own personal use and that his marriage was being postponed for the lack of accommodation on the first floor, was not challenged. It was also not challenged that he is the life President of Ittehad Alam Islam and author of 200 books in Arabic, that a number of ambassadors of other Muslim States attend the meetings of his Tanzim and that due to lack of accommodation he had to arrange these meetings at other places. The status of the respondent/landlord in life and society therefore remained unrebutted and unchallenged. In view of the status of the respondent and the fact that he is residing with a D large family in a tenement on the first floor apart from the fact that he wants to get married there is no escape from the conclusion that the landlord reasonably and bona fide requires the premises in question for his personal use and occupation.
' I am fortified in the conclusion reached as above by the principal laid down in the case of Khuda Bux v. Syed Muhammad Habib Shah Hashmi where it was held that if a landlord is residing in small accommodation with a large family it could not reasonably be contended that the respondent has not proved his requirement for the house in dispute.3
8. An attempt was made to argue that the persons who are residing with the respondent/landlord cannot be termed as dependents upon him. This argument is not available to the appellant as no such plea was raised either in the written statement or in the evidence by putting any question to the respondent or his attorney. Moreover, it is not necessary that the persons who are residing with the landlord must strictly be dependent upon him. They may be so closely related with the landlord that it may be impossible for him to live separately from them or to turn them out of his house so as to have his own premises himself alone. Such a conduct is not expected of any respectable person in our society particularly when we find from the list of the defendants produced by the respondent/landlord that the persons residing with him include the widow of his real brother, seven sons and daughters of the deceased brother, a window sister and his another real sister whose husband is too old to earn any living. I am supported in this view by the observations made in the case of Hall Lal .Bux v. Allah Dad where in placing reliance upon the case of Khadim Ali v. Rubab All the learned Judge observed that in considering landlord's requirement the Court ought to take into consideration the fact that there are other persons residing with him in his present premises and whom he does not want to be turned out and thrown in the street.
9. The evidence led by the appellant consists of his own statement wherein he has denied the pleas raised on behalf of the respondent but he has not been able to produce any material on record to contradict or belie the statement made by the respondent who had examined himself and submitted to cross-examination.
10. In the circumstances I find that the respondent/landlord who' is a learned person, author of 200 Arabic books, and is the President of Ittehad Alam Islam is entitled to have an accommodation commensurating with his status in life and place where he could reside and have meetings with ambassadors and members of his Tanzim. I also find that the respondent has established that the premises are reasonably and bona fide required by him for, the reason that he wants to get, married.
11. Lastly it may be mentioned that penal provisions contained is subsection (3) of section 15 and section 15-A of Sind Rented Premises Ordinance of 1979 on the facts and circumstances of the case offer an adequate safeguard against a landlord acting in bad faith, as held in the case of Amir Din v. Adamji Abdullah and others
12. For the reasons discussed at by the learned Rent Controller. As having no merit. The appellant is granted two Parties to bear their own cost above I concur with findings arrived! Accordingly this appeal is dismissed months time to vacate the premises.
PLD 1972 Quetta '5 PLD 1964 SC 865 1979 SC MR 89 1980 CLC 984 13 L D 1975 Kar. 408 1969 SCM R 131