1. ' The respondent is the landlady of the premises bearing C.S. No.D-1254. This is a residential house situated in Sukkur. Originally this property belonged to one Deedar Muhammad who was husband of the landlady and who is now dead. This house was rented out to the appellant by the late Deedar Muhammad for a sum of Rs.250 per month under agreement, dated 22nd November, 1980.
2. Earlier an attempt was made by Deedar Muhammad to obtain possession of the property from his tenant but this attempt did not succeed. Deedar Muhammad, it is alleged, had no issue from this lady and he gifted this property to the respondent. A notice, dated 15th August, 1982 was served by the respondent on the appellant informing him the change of ownership and claiming the possession. To this notice there was a reply by the learned counsel for the appellant and in para. 1 of this reply, dated 12th of September, 1982 the assertion of sole ownership of the property was not disputed. In my opinion this is enough to create relationship of landlord and tenant. On 11-11-1982 the respondent filed an ejectment application under section 14 (1) of the Sind Rented Premises Ordinance, 1979 against the appellant. In this application it was stated that she wanted the premises for her personal use. The grounds urged were that she was 63 years of age. Her husband was of 80 years of age and was patient of Ghatta and as the climate of Karachi was not suited to his disease, he was advised to shift from Karachi to a drier climate at Sukkur. Additional grounds for claiming possession were stated in paras. 10 and 11 which are reproduced below:- "(10) That the applicant is a tenant of quarter No.6/31 sector 37/C Gall No. 6 Landhi Colony, Karachi, 30 the rented basis and she used to pay the rent at the rate of Rs. 350 per month to the owner of the above-said quarter named Nasim Akhtar w/o Muhammad Siraj (Photo copies are submitted herewith ).
(11) That Mst.Nasim Akhtar w/o Muhammad Siraj is the real owner of Q.No.37-C/6-31 Gali No.b Landhi Colony, Karachi. (Photo copy is submitted herewith)."
3. ' This application was filed on behalf of the respondent through one Ghulam Kadir as her attorney.
4. Appellant filed his written statement and denied the allegations contained in the rent application.
5. In support of the case of the landlady the affidavits-in-evidence of Ghulam Kadir attorney, Abdul Latif son of Haji Nabi Bux and Abbas All son of Mushtaq All were filed and all of them have been cross-examined. Paras. 9, 10, 11, 12 and 13 of the affidavit of the attorney disclosed that the landlady is living in rented premises at Karachi at the rate of Rs.350 per month and she has no other property of her own anywhere in Pakistan except the house in question. That on account of the illness of the husband as well as on account of the threat of ejectment from the premises where she is living in Karachi, she wanted to shift to Sukkur and reside in her own house. In the affidavit of Abdul Lateef in para. 5 the contention that she is living in a rented house in the Landhi Colony, Karachi and paying Rs. 350 per month for that accommodation is stated. In the affidavit of Abbas All also in para. 5 the same contention is repeated and it is urged that the applicant is a tenant of Quarter No.6/31, Sector 37-C, Gali No. 6 Landhi Colony, Karachi at the rate of Rs. 350 per month.
6. ' In rebuttal Khawaja Gulzar Ahmed the present appellant filed an affidavit-in-evidence and besides reopening the question of ownership of the property he also contested the bona fide of the requirement of the landlady. According to this affidavit the object of filing the application was merely to secure premises and let them out to someone else on higher rents. One Mirza Farukh Baig was also examined by the appellant but he was on a different point. On this evidence the learned Rent Controller proceeded to examine the plea of personal need of the landlady and formulated two points for determination in his order dated 30th January, 1984. They are as follows:-
(1) Whether the applicant is aged more than 60 years and had served notice as required by law?
(2) Whether the premises are required by the applicant for her personal bona fide need?
7. ' Both these issues were decided in favour of the respondent. On issue No. 1 the Rent Controller has found that the evidence produced on behalf of the landlady proves that she is of 60 years age which fact is not challenged in the cross-examination. It was also held by the learned Controller that a notice under section 14 of the Sind Rented Premises Ordinance was served on the opponent, the fact which was admitted by the appellant. On issue No. 2 which is the crucial issue for the purpose of this appeal the learned Rent Controller has relied on the true copy of the extract of city survey showing that the respondent is the owner and landlord of the premises. As a matter of fact this position was accepted by the appellant himself in the reply, dated 12-9-1982 in answer to the notice of the 'respondent, dated 15-8-1982 notifying the change of ownership. He had accepted her to be the owner and landlord. The Rent Controller accepted the version of the landlady that she was living in the rented premises at Karachi. He further adds in his order that this position was not challenged in cross-examination of any of the witnesses that climate of Karachi is not suitable and she intends to shift to Sukkur. He further held: "The fact that she is residing in a rented house and is paying Rs.350 per month rent is by itself proof of bona fide need of applicant as she has right to reside in her own house. The above evidence of the applicant practically goes unrebutted. As such it also stands proved that premises are required by the applicant for her personal bona fide need."
8. ' The Rent Controller allowed the application and directed the appellant to hand over vacant possession of the premises to the applicant/landlady within thirty days of the passing of his order.
9. Being dissatisfied, the appellant has filed this rent appeal. On the opening day Mr. Manzar Alam learned counsel for the appellant raised a preliminary objection that the rent application was filed by Ghulam Kadir who was not duly authorized and did not enjoy authority to prosecute the proceedings on behalf of the landlady. The learned counsel termed the entire proceedings as unauthorized. When questioned, the counsel for the respondent tried to meet this objection by referring to true copy of the special power-of-attorney executed by the landlady on the 30th October, 1982. The learned counsel for the appellant contended that this was not in consonance with the requirement of law as the original was not available on the record and its loss was not proved before the Rent Controller. As a matter of fact he denied the very existence of the original.
10. Mr. Amanullah Shaikh was given time to find out whether the 'original was available with him. First he filed the affidavit of Ghulam Kadir on the 5th of September, 1984. In paras. 4, 5 and 6 of his affidavit Ghulam Kadir states a under:- " That at the time of evidence, I produced true copy of power-of attorney with original copy of power-of-attorney, whereas learned Rent Controller exhibited my true copy of power-of-attorney and returned back the original copy of power-of-attorney to me, which I kept in my house.
(5) That it is fact that Mst.Latifan has given me the power-of attorney and I have conducted the case and gave evidence on the basis of power-of-attorney.
(6) That the original copy of power-of-attorney has been misplaced to somewhere through mistake."
11. ' Today respondent/landlady was present in Court and in order to do full justice to the parties I have examined her in Court under the provisions of section 21(3) of the Sind Rented Premises Ordinance which runs as under:- "(3) The appellate authority shall, after perusing the record of the case and giving the parties an opportunity of being heard and if necessary, after making such further enquiry either by himself or by the Controller, make an appropriate order, which shall be final."
12. ' Mr. Manzar Alam learned counsel for the appellant has been very fair in these proceedings and the learned counsel was agreeable for the remand of this case to enable the respondent to either prove the power-of-attorney or give a fresh power-of-attorney. This course would have delayed the disposal of the appeal. Moreover, according to my reading of the section, the appellate Court cannot remand the case for fresh decision to the Rent Controller. Even if fresh evidence is desired, it should either be recorded by the appellate Court itself or by the Rent Controller on remand. But in the latter case the decision will have to be rendered by the appellate Court itself on the basis of the evidence recorded by the Rent Controller. On this reading of the section and in order to avoid further delay I allowed the respondent to be examined on the short point whether she, had authorized Ghulam Kadir to conduct those proceedings and whether she had executed any power-of-attorney in his favour. She has been examined in this Court and has stated that she had actually authorized Ghulam Kadir to conduct the proceedings on her behalf in the proceedings before the Rent Controller because she herself being at Karachi and her husband at that time being very old and infirm, could not fully conduct the case in Sukkur. The respondent has been cross-examined by Mr. Manzar Alam learned counsel for the appellant. I must say that in rent proceedings the aid of law of procedure should be sought whenever inevitable and in order to regulate and channellize proceedings before the Rent Controller. The object should be to conduct the proceedings in a proper judicial manner. But if the procedural formalities and trapping of the Court obstruct the passage of clean justice and start causing embarrassment and obstructions in the way of the litigants they should be dispensed with in the interests of justice and equity. The respondent/landlady has not only supported and stated on oath that she had, under a power-of- attorney, authorized Ghulam Kadir to conduct the proceedings before the Rent Controller but she now rectifies all the acts done and actions taken by Ghulam Kadir. It may not be a sufficient compliance of the provisions of Order III, rule 2 (a), C.P.C. but it is surely a substantial compliance of those provisions as all the acts have been done for the benefit of landlady and she now rectifies them in Court. Moreover, even if there is defect or flaw in the authority of this attorney, it is not made out before me how by such a formal defect the appellant's interests have been jeopardized or how he has suffered any prejudice, on that score. I cannot allow the case of the respondent to fail on mere technicality of procedure. In this view of the matter there is nothing before me to upset the finding of the learned Rent Controller allowing the rent application on grounds of personal need of this lady who is now a widow. This appeal is, therefore, dismissed with costs. The appellant should hand over the vacant possession of the premises to the respondent within one month of this order but not later than 31st October, 1984.