' The appellant Yan Loong Wu was let out a portion on the ground floor of a double storey building situated on Plot No, 5-A, Block-6, P. E. C. H. Society, Karachi (hereinafter referred to as "the rented premises") by its owner Agha Aslam Hyder, for a period of two years commencing from 10th September, 1973, at the monthly rent of Rs, 450. The appellant established there a Chinese style Cafe, known as "Cafe Mandarin". The tenure of the tenancy was extended and the rent of the rented premises was increased to Rs, 600 per month. The appellant is said to have left the country and handed over possession of the rented premises to one Wu Mei Yun who represented to be his sister and also attorney. Ultimately, the Cafe established there is said to have been closed on or about 13th November, 1978. The landlord Agha Aslam Hyder filed Rent Case No, 2953 of 1979 on 31st May, 1979, for possession of the rented premises on the ground that it had remained closed for more than four months and a supposed attorney of the tenant was trying to dispose of the assets of the Cafe Mandarin and deliver possession of the premises to someone. The application was resisted by Wu Mei Yun on behalf of the tenant Yan Loong Wu, representing to be his attorney. It was denied that the premises had remained closed at any time. It was also denied that the Cafe Mandarin was intended to be closed. It was alleged that the ejectment was filed for knocking out enhanced rent.
The landlord Agha Aslam Hyder died during the pendency of the case. He is represented by his legal representative ; the respondents. The parties' adduced evidence in the form of affidavits. The learned Controller XVII, Karachi, made an order, dated 16th September, 1982 that possession of the rented premises should be handed over to the landlord within a month, This appeal is directed against that order.
2. The learned Controller based his decision on following two points :
(1) Whether the premises leased out to the respondent remains closed and not being run for the purpose it was originally given. If so, does it terminate the tenancy?
(2) Whether the opponent has gone out of Pakistan permanently after handing over the possession of the premises to someone else. If so, does it terminate the tenancy?
' The point No, 1 was held as "Not proved" and the finding on point No, 2 was in affirmative. The finding on the point No, 2 was based on the assumption that the tenant Yang Long Wu had remained out of the country for many years and it could not be believed that his sister or anyone else was running the Cafe on his behalf and the tenancy could not be deemed to have been subsisting and, therefore, the occupiers of the rented premises were liable to be ejected and the learned Controller passed the impugned order that they should hand over vacant possession thereof to the landlord.
3. The learned counsel for the appellant contended that the order of ejectment has been passed against the persons who were neither tenants nor were they impleaded as a party to the proceedings. He further contended that the appellant had not migrated from Pakistan for ever and he was running his business through his sister whom he had given power of attorney. On the other hand, the learned counsel for the respondent urged that the appellant had permanently migrated from Pakistan and he had handed over possession of the rented premises to Madam Wu Mei Yun under a colorable power of attorney and she was running an aqua-puncture clinic there and it is a case of unauthorised occupation of the premises. He laid emphasis on the fact that the appellant did not file the written statement himself nor did he appear to give evidence to refute the allegations that he had handed over possession of the rented premises to the supposed attorney.
4. There is no doubt that the appellant/tenant has left the country and the rented premises is in physical occupation of Wu Mei Yun on the strength of power of attorney from the former. The only ground for seeking possession of the rented premises stated in the Rent Application was that of the premises having remained closed for a period of more than four months. The finding of the learned Controller on this issue was that it had not been proved. The ground of subletting of premises was introduced later without seeking amendment of the main application. Another ground of personal need of the landlord also was introduced later but it was not expressly considered by the learned Controller. The additional grounds of alleged subletting and the landlord needing the premises for his personal use could be advanced either by way of amendment of the Rent Application or by filing a separate proceedings and not by introducing them in evidence. Since the ground whereupon the ejectment application was found was not proved to the satisfaction of the learned Controller, the application was liable to have been dismissed ; and the landlord would have been at liberty to seek ejectment on other grounds, such as subletting and/or personal need etc.
5. The learned counsel for the respondent took exception to the competency of the appeal filed through the attorney. He placed reliance on PLD 1964 Lah. 648 wherein it was observed that validity of a power of attorney must be examined before acting on it. On the other hand, the learned Advocate for the appellant urged that the appeal could be filed through an attorney. The tenant/appellant has been represented throughout by Madam Wu Mei Yun on the authority of a registered general power of attorney, dated 17th September, 1980 to represent him in "all revenue, civil and criminal Courts" Of course, the ejectment case, which had been filed earlier, was not specifically mentioned in it. Nevertheless appeal could be filed by the attorney as the order of ejectment was passed against her and she was aggrieved party competent to file appeal under the provisions of section 21 of the Sind Rented Premises Ordinance, 1979, whereunder the appeal has been filed. Thus, the) objection to the competency of appeal does not hold ground.
6. For the reasons recorded above, the appeal is allowed and impugned order, dated 16th September, 1982, passed by the learned Controller is set aside. The parties shall bear their own costs.