This appeal has been filed challenging the judgment of the Rent Controller & IVth Senior Civil Judge, Karachi (West), whereby the ejectment proceedings filed by the landlord have been rejected. The case of the appellant/landlord is that he is one of the co-owners alongwith the other.
Who had purchased the property, bearing No.1-K-5, known as Barkati Market, situated in Nazimabad No.1, Karachi, for personal requirement and that such notice was served on the opponent/respondent who is the tenant of one of the premises of the said market, bearing house No.26, at the monthly rent of Rs.100. That after service of two notices, the appellant/landlord had filed the present ejectment proceedings. The opponent/respondent contested the rent case and filed his written statement. The relationship of landlord and tenant is not disputed. However, the respondent has denied the alleged requirement of the appellant for personal use. He has contended that in fact the appellant had demanded enhanced rent at the rate of Rs.200 per month and had stopped receiving the rent, therefore, the respondent started depositing the rent in the Court. It was further contended that the appellant is not residing in a rented premises as alleged by him and also that he is in occupation of other tenement in the said Barkati Market. Both the parties did not examine themselves but examined their attorneys, and the learned Rent Controller after hearing the advocates for the parties, was pleased to dismiss the rent proceedings.
2. I have heard the learned counsel for the parties. At the very outset, Mr. Muhammad Akhtar, learned counsel for the appellant, has argued that the rent application in the present case by the attorney of the appellant was maintainable. He has argued that the finding of the learned Rent Controller that the power of attorney executed in favour of Sahibzada Khan was in relation to some cases pending before the Court of IVth Rent Controller, Karachi and not the present case, is erroneous. He has drawn my attention to the power of attorney which was produced in the Court of Rent Controller and it will be advantageous to reproduce the opening paragraph of the power of attorney alongwith paragraphs Nos.1 and 2, which read as follows:-- "GENERAL POWER OF ATTORNEY: KNOW ALL MEN BY THESE PRESENTS that (1) Juma Khan s/o Rana Gul; (2) Noor Habib s/o Juma Khan; (3) Maza Khan s/o Juma Khan, (4) Raza Khan s/o Faqir Mohammad; (5) Syed A.I Shah s/o Shahibzada Khan; and (6) Gul Mast Khan s/o Gulzada Khan, all Muslims, adults, residents of 21, Barkati Market, Market No.1-K-5, Nazimabad, Karachi, do hereby jointly and severally, make, appoint, nominate, constitute and ordain Mr. Sahibzada Khan s/o Gulzada Khan, Muslim, adult, resident of 25, Barkati Market, Nazimabad, Karachi to be our true and lawful General Attorney to do and cause to be done the following acts, deeds and things in connection with our property bearing No.1-K-5 known as "Barkati Market" situated in Nazimabad No.1, Karachi, AND WE HEREBY SEND GREETINGS:--
(1) To sign, verify and file all sorts, of papers, documents, applications, petitions, memorandum of appeal whenever and wherever so required by our Attorney;
(2) To appear, act and represent us in all Courts Civil, Criminal or Revenue whether original or Appellate including the Court of Rent Controller IV, Karachi and to look after and pursue the Rent Cases pending disposal before the said Court vide Rent Cases No. Or any other cases AND also to appear before all the authorities and officials of the Govt. Whenever and wherever so required by the Govt."
From this power of attorney, it appears that all the co-owners including the present appellant Raza Khan had appointed Mr. Sahibzada Khan, as their attorney to deal with their property known as Barkati Market. The above paragraph 1 of the power of attorney shows that he was authorised to sign, verify and file all sorts of papers, documents, applications, petitions, memorandum of appeal whenever and wherever so requires which would include the application for ejectment also. It appears that the learned Rent Controller next following paragraph-2 only and has ignored the contents of first and the opening paragraph. In view of the above I am inclined to hold that the said attorney was duly authorised and hold the power to sign, verify and present the present application for ejectment which is quite maintainable.
3. Now I will take up the other point in the case, i.e. Whether the appellant has proved that he required the premises in dispute in good faith for his personal requirement. As the case is set up by the appellant, he has contended that he is living in a rented house at present and that he requires the present house for his own use. The learned counsel for the appellant has argued that if the appellant has stated on oath that he is residing in a rented house and the same has not been controverted or challenged by the other side, then the contention of the landlord should be deemed to have been proved. He has placed reliance on the cases, namely, Abdul Latif v. Mst.
Bahiran Begum and 9 others (1988 CLC 1055); Messrs Habib Bank Limited v. Messrs Thal Jute Mills Ltd. (1988 CLC 2310) ; Syed Mazhar Hussain v. Muhammad Ahmad Sharif (1987 M LD 3295); Muhammad Younus v. Shifaur Rehman (1987 M LD 2118) and Anwar Ahmed v. Ghulam Qadir and another (1988 CLC 2338). Mr. Feroz Khan, learned counsel for the respondent, has not disputed the proposition of law as laid down in the above cited cases. However, he has contended that each case to be decided on its own merits and it is to be seen as to whether the landlord has proved that he required the premises in good faith and that in the present case also the landlord would be required to do so at-least prima facie that he was living in a rented house. Mr. Feroz Khan, has contended that in the cross-examination of the attorney of the appellant/landlord, the respondent has suggested question that he was not living in the rented house and that he was in occupation of one of the premises in the said property known as Barkati Market. This fact of course is denied by the attorney of the appellant, but tire material on record goes to suggest otherwise. Mr. Feroz Khan has drawn my attention to the General Power of Attorney produced by the appellant's attorney which shows that all the six co---owners including the present appellant Raza Khan are residents of 21, Barkati Market and it is their case that Barkati Market is owned by the appellant and other co- owners. Likewise, the notice (Ex. O/3) issued by Mr. Ghafoor Hussain Qureshi, advocate on behalf of the appellant and other co-owners, on 4-5-1983 which is earliest in the time mentions that they had purchased the disputed property and had required the respondent to pay the rent. This notice nowhere makes a mention that the premises were required for personal use of the landlord, although the attorney of the appellant in his evidence states that the said premises were purchased for personal requirement. From the above facts, the learned counsel for the respondent has argued that the bona fides of the appellant's personal requirement was challenged and in such case the burden was on the appellant to prove his good faith Mr. Feroz Khan has further argued that the attorney of the appellant has not said a single word as to in whose house the appellant was residing on rent nor any evidence, not even rent receipt has been produced by the appellant to substantiate his contention that he was living in a rented house.
4. From the above discussion, I am of the view that in the circumstances of the case, it was incumbent on the appellant to have given proof of the facts that he was living in a rented house and that his requirement for personal use was in good faith and a bona fide one, specially, where the other side had brought the allegation of mala fides by producing the-money order coupons which show that the rent was being sent to the appellant/landlord which was being refused and ultimately the same was deposited in. Court.
5. In the above circumstances, I find no force in the present appeal which is dismissed. However, there will be no order as to costs.