' This First Rent Appeal is filed by appellant, who is tenant (hereinafter to be referred as tenant) against the impugned order, dated 28th February, 1982 passed by IXth Senior Civil Judge/Rent Controller, Karachi whereby ejectment application filed by respondent/landlady (hereinafter to be referred as landlady) has been allowed and in consequence ejectment has been granted in her favour.
' Shortly stated the relevant facts are that the landlady applied for ejectment against the tenant on the ground of personal need. The tenement in question is a residential house No, R-448/2, in Federal 'B' Area, Karachi, which is in occupation of the tenant. Monthly rent is Rs, 130 p. In. Payable in advance. Landlady named above purchased this property from its previous owner vide registration sale deed and served notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959. Landlady who is a widow applied for ejectment on the ground that she needed premises in question for personal use. She has further stated that application for ejectment was filed on the ground that she alongwith her son and a divorcee daughter is residing with her another son-in-law by named Aqil Mara Rizvi in a single room. House of Aqil Alam Rizvi is a two bed rooms and a drawing-cum-dining room built over a plot of 120 sq. Yards. Aqil Alam Rizvi has given one bed room to her and her children and lives with his family of eight members including six children in another bed room. At this stage it would not be out of place to mention here that the rented accommodation in dispute in this case is also two bed rooms plus one drawing and dining room built on 120 sq. Yards. Before the learned Rent Controller, landlady examined her son-in-law Aqil Alam Rizvi, who is also her attorney and one other witness by name Syed Hassan Mehdi. On the other hand tenant only examined himself.
2. Before me it is submitted by the learned counsel appearing for the parties that there is no dispute with regard to service of notice under section 13-A of the said Ordinance nor title of landlady to the demised premises is questioned. Impugned judgment is assailed on behalf of tenant on the ground that the finding of the learned Rent Controller granting ejectment on the ground of personal need is not warranted by the evidence brought on the record for the reason that the landlady has not examined herself nor her son and daughter before the Rent Controller as such she has failed to produce satisfactory evidence on the issue of requirement of premises for personal need. On the other hand learned counsel for the landlady has argued that evidence produced by the landlady is sufficient and satisfactory and it was not necessary for the landlady to go to the witness-box because Aqil Alam Rizvi, who is examined by her, is not only her son-in-law but is also duly constituted attorney. Evidence of that witness is further supported by the evidence of another independent witness namely S. Hassan Mehdi. It was further argued that it was not necessary for the landlady to examine her son and daughter for the reason that in her application for ejectment filed before the Rent Controller, she has demanded restoration of demised premises for her own use.
3. Perusal of ejectment application on the record of the lower Court clearly shows that the landlady had not stated specifically that she wants the rented premises for her son and daughter. She has only narrated the facts that she is living in the house of her son-in-law with one son and a divorcee daughter in one of the two rooms. Intention appears to be that she wants the rented premises for her own use and her use would or may include use of her son and daughter also.
4. Now the important question, which crops up for consideration is whether it was mandatory for the landlady to examine herself when she had asked for return of demised premises to her for personal need. In this context there is plethora of case-law on the point as to what are the requirements and evidence of what quality and quantity is to be produced. Latest in the series is judgment of our own High Court in the case of Muhammad Younus v. Dr. S. Muzammil Ali (1) in which criteria have been laid down. Relevant requirement in the context stated above is that if a landlord without any plausible reason fails to appear as witness before Rent Controller in support of his application for ejectment on the ground of personal requirement in good faith, this will be fatal to his application. It is quite obvious that if the landlord has plausible reason for not appearing and the Court is convinced and satisfied then it is a valid
(1) 1981 CLC 327 reason and his non-appearance will not be fatal provided sufficient I evidence of satisfactory nature is produced to show that requirement is I personal and made in good faith.
5. Now if the landlady is a pardanasheen and on that account she does not appear in the Court to be examined as a witness and in her place B the competent witness is examined who is conversant with the facts of the case then non-appearance of the landlady becomes fully covered and cannot be held as fatal to ejectment petition. This view finds support in the judgment of Muhammad Umar and others v. Dr. Amina Ashraf (1). Incidently judgment in this case as well as in the case of Muhammad Younus v. Dr. S. Muzammil Ali mentioned above are written by my learned brother Ajmal Mian, J., which provide clear elaboration that a valid reason for non-appearance can be accepted. This view is further supported by the judgment in the case of Rana Abu Bakar v. Mst.
Sadaqat Begum (2).
6. In the instant case so far the evidence is concerned landlady has examined her son-in-law Aqil Alam Rizvi in whose house she is presently living. This witness is very close relative of the landlady and is husband of her daughter and not only this the landlady is presently residing in his house, hence he is very well conversant with relevant facts and has given all the information required. He has categorically stated in his evidence in the affidavit in paragraph No, 7 that the landlady specifically requires the said premises for her own use and occupation and undertakes to let out the same to the same tenant at the same rate of rent in case the landlady fails to occupy the same immediately after receiving the vacant possession thereof. In cross-examination of this witness there is nothing adverse to show that statement of this witness is seriously challenged. This witness is further supported by another witness namely Hassan Mehdi Zaidi. He is not to neighbour of the landlady and has stated that the landlady and her family members observe pardah.
7. Another very valid reason for non-examination of the landlady is that she has constituted her son-in-law Aqil Alam Rizvi as her Attorney, who has appeared in her place to give the evidence.
General Power of Attorney naps been produced as Annexure 'A' on the record. This power of attorney was executed on 16th February, 1979 which specifically authorizes this witness to prosecute her defence in any suit, plaints, applications, petitions any proceedings before any Court or Authority arising from property in question. Further, this power of Attorney is executed on 16th February, 1979 which was earlier in point of time than ejectment application which was filed on 18th March, 1979. Term 'Attorney' is defined in "Black's Law Dictionary Fourth Edition" as an agent or substitute, or one who is appointed or authorised to act in the place or stead of another. Section 2 of the powers of attorney, Act 1882, which is applicable in Pakistan, provides that the donee of a power of attorney may, if he thinks fit, execute or do any assurance, instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power ; and every assurance, instrument and think so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with signature and seal, of the donor thereof. Section 85 of the Evidence Act enables the Court to presume that power
(1) 1982 CLC 410 (2) L D 1983 Lah. 320 of attorney so produced is properly executed and authenticated. Now in the instant case there is power of attorney duly executed by the landlady in favour of witness Aqil Alam Rizvi. The validity or authenticity of this document is not challenged by the tenant. This clearly shows that under the law witness Aqil Alam Rizvi is duly constituted agent and attorney of the landlady and what is said by him in the evidence can be attributed to the landlady. He is close relative of the landlady and knows all the facts relevant to the matter additionally for the reason that the landlady resides in his house. He is a legal substitute of the landlady as duly constituted attorney allowed by law as such now it cannot be said that non-appearance of the landlady in the Court of Rent Controller to prove requirement of premises for personal need is fatal. Nothing has been said to have been left out in the evidence of attorney which would be stated to be within the personal knowledge of the landlady. In this context, reference can be made to the case of Rana Abu Bakar v. Mg. Sadaqat Begum (1) with relevant portion at page 527 paragraph 4.
8. For the facts and reasons stated above, I am of the considered view that evidence produced by the landlady before the learned Rent Controller is satisfactory and adequate and there was no need for her to appear in the witness-box for the reason that evidence of duly constituted attorney, who is a close relative of her is sufficient as allowed under the law. Finding no other reason for interference, I dismiss the appeal with no order as to costs. Tenant is directed to hand over the vacant possession of the demised premises to the landlady within three months of the date of this judgment and to pay the rent for the period for which the premises remain in his occupation.
(1) PLD 1983 Lah. 320 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.