This is an appeal against the order passed by the Rent Controller, Clifton Cantonment, Karachi, in Rent Case No. 12/1983, whereby, the Rent Controller had dismissed the appellant's application for ejectment which was brought on the ground of sub-letting. The case of the appellant, as set out in the rent application, is that the appellant is the landlady of two shops situated at plot No. 25/C, `A'
Commercial Area, Defence Housing Society, Karachi' while the respondent 1 is the tenant therein at the monthly rent of Rs. 800/-. It is further contended that the appellant had filed two other cases for ejectment with regard to same premises on the ground of default, being R:C.Nos.19 and 20/1980, and that the appellant in those two earlier cases came to learn that respondent 1 is sub-letting the premises in question to the respondent 2 and, therefore, the necessity of the filing of the present rent case. It is pertinent to pint out that the present rent case has been filed on behalf of the landlady by one Mirza Mujib Ahmed, claiming to be her attorney, and that he has signed the rent application also. The respondents filed their written statement contending that the application was hit by the provisions of Order 2 Rule 2 CPC., and the principles of res judicata as according to them a rent case was earlier filed by the same landlady m the year 1976 on similar grounds which was compromised on the respondents offering enhanced rent. The second 'legal objection that was taken in the written statement is with regard to power of attorney, as according to the respondents the said Mirza Mujib Ahmed was not validly and lawfully constituted attorney with authority to file and conduct the present rent case, but he was appointed attorney for a previous case. It was also claimed that there was no sub-letting as the business in the name of respondent 2 was being done by respondent 1 since the very inception of tenancy and this fact has all along been within the knowledge of the appellant. It is also claimed that respondent gave status to his business concern from Property Links to Property Links (Pakistan) Limited 3/4 years back, which fact was within the knowledge of the appellant and the plea of waiver was thus taken.
2. The Rent Controller on these pleas of parties framed the following issues:--
(i) Whether the instant application is maintainable?
(ii) Whether the opponents have sublet the disputed premises?
(iii) Relief?
The appellant's attorney Mirza Mujib Ahmed who also claims to be her brother filed his affidavit and was cross-examined, while the respondent 1 also filed his affidavit-in-evidence and was cross- examined.
3. I will, therefore, take up the first issue with regard to maintainability. The burden to prove that the rent application was not maintainable was on the respondents/tenant and Mr. A.I Ahmed Tariq, appearing for them has taken. The following pleas:-
(1) That the rent application shows the word "opponent" is used in its singular form and, therefore, it connotes that the two respondents were in fact one single legal entity.
(2) That this ground not having been taken in earlier Rent cases Nos. 19 and 20/1980, the same cannot now be taken and also that the previous Rent Case of 1976 having been compromised, the present case will be hit by the provisions of res judicata.
(3) That the previous rent case No. 4463/ 1976, which was brought on the ground of sub-letting was compromised and, therefore, it amounts to waiver on the part of the appellant.
(4) The power of attorney being specifically for Rent Case No. 2778/1978, the present rent case cannot, be de, by the same attorney on the authority of the said power of attorney.
He has argued at length. As far as the first point is concerned, the same is only a technical objection and I do not find any force in that. Mere use of word in singular form, would not mean that the appellant had treated the two respondents as a single party establishing when they were shown distinctly in the memorandum of application. As far as, his objection with regard to principles of res judicata and the bar under the provisions of Civil Procedure Code is concerned, I will hold the same also to be not tenable as according to the appellant she came to know of the conversion of the business of respondent 1 in the name and style of respondent 2, during the pendency of the previous Rent Cases Nos. 19 and 20/1980, and according to appellant this conversion of business amounted to sub-letting. This appears to have given a separate and distinct cause of action to the appellant and she could very well maintain the present rent case on the said cause of action. For these reasons also I would hold that the plea of waiver taken by the respondents has no force.
4. Now, I take the plea of respondents with regard to the said power of attorney. He has argued that the said Mirza Majib Ahmed was constituted General Attorney for the appellant only for the purpose of Rent Case No. 2778/78, which would be deemed to have been terminated with the termination of the said rent case and would not invest any authority in the said general attorney to file or pursue any other case unless he was specifically constituted as such attorney. It will be advantageous here to reproduce certain clauses of the said power of attorney, which has been produced in evidence as Ex A-1.
"Whereas I, A. B. Aisha daughter of Mubarak Ahmed is the owner of two shops on plot No. 25/C, `A'
Commercial Area, Defence Officers Co--operative Housing Society, Karachi and Sultan Ahmed Tahir is the tenant thereof.
Whereas I have filed an ejectment application being Rent Case No.2778 of 1978 pending in the Court of VI Rent Controller Karachi.
Be it known to all that 1, A. B. Aisha daughter of Mubarak Ahmed, Muslim, adult, residing at 62, Delhi Co-operative Housing Society, Karachi do hereby nominate, constitute and appoint my brother Mr. Mujeeb Ahmed son of Mubarak Ahmed resident of 62 Delhi Co--operative Housing Society, Karachi, my lawful attorney to do or cause to be done the following acts and things in my name and on my be half:-
(1) To appear and act for me and on my behalf in any Court, civil, criminal or revenue, whether original or appellate Court, and more specifically in the rent case bearing No. 2778 of 1978 pending in the Court of VI Rent Controller Karachi and before the appellate Courts.
(2) To sign and verify plaints, written statements, petitions, applications, claims, objections and all other kinds of applications and petitions and representations, memorandum of appeals or revisions of whatsoever nature and to file and prosecute the same in all Courts--original or appellate and to defend all actions and make statements on solemn affirmation or oath or otherwise and to swear affidavits".
Last paragraph of the said Power of Attorney contains: "And generally to perform and execute all the lawful acts, deeds and things whatsoever which our said attorney has to perform or execute for the due and proper exercise of my rights and the due and proper discharge of his obligations: And I do hereby ratify and agree to ratify and confirm all acts, deeds and things that our said attorney or any agent or other attorney may do in respect of .... Of my property in which I may be interested by virtue of these presents".
S. Mr. A.I Ahmed Tariq has relied on the case of Munir Hussain v. Mst. Mehrun Nisa PLD 1982 Karachi
71. In this case, it has been observed by Mr. Z.C. Valliani, J, as under:-
10. Prima facie there is nothing in the above special power of attorney, which authorised the attorney to sign, verify and present the ejectment application against the appellant. The learned Advocate for the respondent was also unable to point out anything in the above special power of attorney to show that the attorney was authorised to sign, verify and present the ejectment application in question".
Mr. A.I Ahmed Tariq has also argued that in order to construe the intention of the parties, the said General Power of Attorney should be read as a whole and that the plain reading of the power of attorney would show that Mirza Mujib Ahmed was constituted the attorney only for the purpose of rent case filed in 1978 and not for the purpose of this case and therefore, the present rent case filed by him is not validly and lawfully instituted case and is to be dismissed on this account.
6. Mr. Mubarak Ahmed Advocate for the appellant, repelling the arguments of the respondents' counsel, has submitted that the said General Power of Attorney is a comprehensive one, which gives general authority to Mirza Mujib Ahmed to deal with the said property not only with regard to 1978--case, but also to deal in future. According to him, the contents of the last paragraph of the General Power of Attorney, as reproduced above, would show that generally the said Mirza Mujib Ahmed is constituted attorney to deal with the properties of the appellant landlady and that appellant landlady has further said that she ratifies and will ratify all such acts of the said constituted attorney done in respect of her property. He has placed reliance on the case of Rafaqat A.I Khan v. Fida Muhammad Khan PLD 1986 Peshawar 51), in which it was held that the institution of suit by attorney holding power of attorney authorising him to make appearances, applications and do acts on behalf of principal would be held to be validly done. He has also relied on the case of Yan Loong Wu v. Sultan Jehan and 9 others. (1984 CLC 2369). In this case, the tenant was represented by an attorney throughout proceedings on the authority of a registered General Power of Attorney empowering the attorney to represent the principal in all revenue, civil and criminal Courts Ad therefore it was held that attorney could file the appeal also on the strength of special power of attorney. The other case relied upon by the learned counsel is Baboo Khan v. Maqbool Ahmed (1984 CLC 2599). In this case also the position was that one of the clauses of power of attorney authorised the attorney to take action 'regarding any proceedings in connection with rented shop on behalf of the landlord and, therefore, the filing and verification of ejectment application was held to fall within such authority. On the strength of above cited cases, the learned counsel for the appellant has argued that this power of attorney also be treated as to have authorised the said attorney to file the present case. In my view, the four cases cited by Mr. Mubarak Ahmed, learned counsel for the appellant are not applicable in the present case. The salient features of the power of attorney in the present case are that Mirza Mujib Ahmad was constituted as general attorney specifically for the Rent Case No. 2778/78 and the last clause of the general power of attorney relied upon by the learned counsel for the appellant would also be read in context with the purpose of the constitution of the said general attorney as given in the opening clauses of the power of attorney, which very clearly specify the purpose of the said power of attorney. Any clause of the General Power of Attorney is not to be read in isolation but is to be read and interpreted in context with the other clauses and the purpose for which the general power of attorney is executed and attorney appointed. It would be pertinent to point out here that said Mirza Mujib Ahmed in his cross-examination has stated that "I say that in spite of stating in R.C.Nos 19 &20/1980 that Ex-`A'-1' is specifically for Rent Case No. 2778/1978 my today's statement that power of attorney confers wider powers to me on behalf of the appellant and according to me my both statements are correct". This itself goes to show that even to knowledge of the said attorney, as stated by him in, R.C Nos. 19 & 20/80, and he was the general attorney only for the rent case of 1978.
I, therefore, hold that Mirza Mujib Ahmed was not properly, validly and legally constituted general attorney for the purpose of the present rent case and it was not within his scope of authority as invested in him under earlier general power of attorney to file the present rent case or sign the ejectment application or even to give evidence on behalf of the appellant.
7. I, therefore, hold that the rent case No.12/1983 was not maintainable and had to be dismissed on this ground alone. Since I have held the rent application to be not maintainable, it would not be necessary to deal with the second issue of sub-letting. I, therefore, uphold the findings of the Rent Controller on the issue of maintainability and dismiss the present appeal.
M.Y.H/A-588/K Eviction declined