1. ' The appellant landlord has filed this appeal against the order of Rent Controller dated 28-2-1981 whereby he dismissed the application of the appellant filed against the respondents on the grounds of default and handing over of possession of the premises to other person without written consent of the appellant.
2. ' In the rent application the appellant alleged default against the respondents from 1st February, 1980 up to the filing of rent application which was presented on 29-5-1980. It was also alleged in the application that the tenant Badruddin has permanently migrated to USA by disposing of his business namely M.S. Badruddin -Automobiles to respondent No,2 Amir Ali who is managing the same under a power of attorney granted to the said Badaruddin. The application was resisted by Amir Ali as attorney of Badruddin and he stated in his written statement that there is neither any default on the part of the tenant nor there has been handing over of the possession of the premises to him by the tenant who is his real brother and is presently in USA in connection with the business. The Rent Controller after hearing the parties and going through evidence produced in the case rejected the ejectment application of the appellant on both the grounds.
3. ' The learned counsel for the appellant contends that the learned Rent Controller acted illegally in rejecting the application of the appellant on the above grounds as the appellant succeeded in establishing both transfer of the premises by the tenant Badruddin to Amir All and as well as default in payment of rent from January, 1980. It is contended by the learned counsel for the appellant that it is admitted in evidence by respondent Amir All that he is managing the business of Badruddin Automobiles under a power of attorney which gave him vast powers of management of the business in his sole discretion. It is accordingly contended that upon perusal of power of attorney it is clear that the tenant had transferred the property for all practical purposes to Amir All and he was no more interested or concerned with the business. In so far the default is concerned, the learned counsel contended that there is nothing in the evidence to show that the respondent/tenant tendered rent in accordance with law after January, 1980 till the filing of ejectment case and as such the default is admitted. After hearing the learned counsel for the parties I am of the view that the Rent Controller rightly dismissed the application for ejectment filed by the appellant.
4. ' The default in payment of rent is alleged by the appellant from 1st January, 1980 up to the filing of rent application. In reply to the allegation of default the respondents alleged that on 2-1-1980 rent for six months was offered but the appellant refused to accept the same and thereafter it was sent by money order which was also refused. The appellant in his affidavit of evidence filed before the Rent Controller which is aipage 65 of the R & P did not allege any default at all against the respondent. On the contrary in cross-examination he admitted that he refused to accept rent for six months in January, 1980 when Amanullah contacted him for payment of rent personally. In view of the fact that in the affidavit of evidence the appellant did not allege default against the respondents and on the contrary he admitted in cross-examination that in January, 1980 he was offered six months' rent, the Rent Controller rightly concluded that there was no default in payment of rent. The other contention of the appellant in the case before the Rent Controller was that Badruddin has handed over possession of the premises to some other person and he has permanently left Pakistan and settled in U.S.A. Amir Ali in his written statement which he filed on behalf of the Badruddin stated that he, Badruddin and Amanullah are real brothers and that they assist each other in their respective business and each one of them hold power of attorney for the other. He categorically denied that he had taken over the business or premises belonging to Badruddin. The applicant in his cross-examination admitted that both Amanullah and Amir All are real brothers of tenant Badruddin and that as such one of them used to go outside the country from time to time. He also admitted in his cross-examination that each one of them namely Badruddin, Amir All and Amanullah have got separate business in the same locality. Amir Ali in his affidavit of evidence categorically stated that he is only looking after the business of Badruddin under the power of attorney which has been given to him by Amanullah who was originally appointed by Badruddin as attorney in respect of his business. He categorically denied that the business namely Badruddin Automobiles has been transferred in any manner or that he has taken over business belonging to tenant Badruddin. In cross-examination he admitted that he has not sent any account to Badruddin who has gone to U.S.A. In September, 1978 but he further stated that whenever Badruddin came to Karachi from U.S.A. He inspected the account. He also stated that he and Amanullah jointly used to look after the business of Badruddin and they used to sit on the shop of Badruddin hourly. During the preceding of this appeal Badruddin has been appearing in this Court and he was also present at the time of hearing of this appeal on 23-4-1985. Keeping in view the fact that Amir All and Amanuallah are the real brothers o tenant Badruddin who is also doing business in U.S.A., the possibility that they looked after his business during his absence could not be ruled out. Learned counsel for the appellant laid much stress on the power of attorney to contend that the power of attorney executed by Badruddin in favour of Amanullah and Amir All contains almost all the power of owner to look after and manage the business. No doubt the power of attorney executed by Badruddin conferred wide power on the attorney to look after and manage the property but I find that under this power of attorney the attorney is not entitled to dispose of or transfer the business of Badruddin Automobiles to any other person. Since the attorney is the real brother of the tenant the grant of such power of attorney to him is neither unusual nor it would necessarily lead to the conclusion that the business has been transferred to him by the tenant unless there is some other evidence to show that the real intention of the tenant in executing the power of attorney was to divest himself with the ownership and the proprietary right over the business. Except the bare words of the appellant there was no other evidence on record before the Rent Controller to substantiate the allegation that the possession of the premises has been handed over by the tenant to the attorney. The power of attorney clearly shows that the business is being run and managed by the attorney on behalf of principal and unless it is proved otherwise it is not possible to hold that the principal has transferred the possession of the tenanted premises to the agent for good. I, therefore, find that the Rent Controller was justified in repelling the contention of the appellant that the property has been transferred by the appellant to the respondents and consequently the premises has been handed over without written consent of the appellant. As a result of above discussion the appeal fails and is accordingly dismissed. However, there will be no order as to cost.