1. ' This is an appeal under section 21 of Sindh Rented Premises Ordinance (hereinafter called Rent Ordinance) directed against an order, dated 26th August, 1987 passed by VIIIth Senior Civil Judge and Rent Controller, Karachi South in Rent Case No,4800 of 1979 whereby eviction application filed by the appellants against the respondent was dismissed hence this appeal.
2. ' Brief facts of the case are that the appellant filed eviction application under section 13 of Sindh Urban Rent Restriction Ordinance, 1959 against the respondent in respect of first floor premises (half portion) Habib Bank Building situated on the corner of Abdullah Haroon Road and M.A. Jinnah Road, Karachi, on the ground that the respondent has sub-let the portion of the rented premises to third party and further has made alterations and construction without the consent and permission of the appellants and has committed acts which have materially impaired the value and utility of the rented premises. The respondent filed written statement stating therein that the eviction application is not maintainable and that neither the premises has been sub-let nor any alterations or construction have been carried out without the consent and permission of the appellants and further that no act has been committed impairing the value and utility of the rented premises. It is stated that the eviction application is mala fide filed with intent to extract enhanced rate of rent from the respondent.
3. ' The appellant filed affidavit-in-evidence of Afzal Baig the attroney/officer of the appellants Bank who filed two photographs, one photo copy of daily "Dawn", photo copy of letter, dated 12th August, 1979, photo copy of letter of the respondent, dated 28th August, 1979, photo copy of pro forma for enhancement of rent, filed affidavit-in-evidence of Fazlur Rehman, Engineer of the appellant Bank, 13 photo copies of the deposit of rent in the office of Rent Controller,, respondent filed affidavit-in- evidence of Nazer Mooraj senior partner of the respondent Company, filed photo copy of two certificates of Incorporation of the respondents company, letter dated 31st July, 1982 of Grindlays Bank addressed to respondent Company, photo copy of State Life Insurance Corporation, photo copy of Form "E" under section 32 of Companies Act, 1913, photo copy of certificate of registration of form, photo copy of Form "E" under section 32 of Companies Act, 1913 and many other photo copies of the Income-tax Department. The deponents who filed affidavits-in-evidence were cross- examined by the respective counsel for adversary parties. After recording the above evidence and hearing the learned counsel for parties, impugned order was passed.
4. ' I have heard learned counsel for parties and perused the record and proceedings of the case.
5. ' Contention of leaned counsel for appellants is that the learned Rent Controller has erred in holding that eviction application was not maintainable on the ground that the eviction application filed by Messrs Ibrahim Bawani and. Ghulam Muhammad as attorneys who were not holding any power of attorney authorising/empowering the said persons to file eviction application. He submitted that only power of attorney was not produced and the said fact was not challenged by the respondent at the time of filing the written statement or at the time of cross-examination.
6. ' P.W.1 Fazlur Rehman examined by the appellants is a Civil Engineer with the appellants Bank, P.W.2 Imdad Nabi Siddiqui has stated in the affidavit to be the attorney of the appellants and has produced a photo copy of his attorney, dated 15th June, 1974 which is signed by two members Executive Boards. By virtue of this attorney, this witness has been authorised to commence, prosecute, continue and defend all actions suit or legal proceedings, to appoint Advocate/pleader to sign, verify, plaint, petition, written statement etc. This P.W. Imdad Nabi in the cross-examination stated that:- "There is no Resolution of Banking Counsel or Ministry of Finance for filing ejectment case against the opponent as there is no need of such Resolution for managing internal affairs of the Habib Bank. There is only verbal instruction of member of Executing Board for filing this case. I do not know whether there are any written instructions in this respect. I do not know as to when opponent was inducted as tenant."
7. ' Admittedly, the eviction application was not filed by P.W. Imdad Nabi but was filed by Ibrahim Bawani and Ghulam Muhammad as attorney of the appellant Bank but no such attorney was either filed with the eviction application nor the same was produced at the time of filing affidavits of the appellant's witnesses. Appellants counsel has placed reliance upon Muhammad Shafi Dad Khan v. Hassanul Azmi 1983 CLC 2238 but in the cited case the landlord had ratified the action on his attorney by entering into the witness-box and further that said plea was not pressed at the initial stage of the proceedings by the tenant/respondent. However, in the instant case the attorneys who filed the eviction application did not come in the witness-box nor such attorneys were filed by the appellants' witnesses alongwith their affidavits-in-evidence, therefore, this cited case would be of no help to the appellants. Another case on which reliance is placed by the counsel for appellants is of Khayam Film and another v. Bank of Bahawalpur 1982 CLC 1275 but the facts of cited case are quite different and distinguishable to the facts of instant case. In the cited case, power of attorney was produced but the plea was taken that there was no proof as to who had executed power of attorney whether such person had an authority under the Articles of Company and Memorandum of Association. In the instant case power of attorney has not at all been produced authorising the person for filing the eviction application. The third case relied upon is of Zamindar Cooperative Housing Society v. National Bank of Pakistan 1982 CLC 1276. In the cited case preliminary objection was raised that the Manager of the Bank was not legally authorised to institute suit on behalf of Bank and Chief Manager had also no legal authority to institute the suit. In the said circumstances, learned Single Judge observed that because the Bank has been pursuing the suit and was represented till that day that would show that suit was filed with a consent of the Bank and it was observed that non-signing of plaint by a person authorised was only an irregularity and not illegality for this reason also and even if the Manager did not have any authority that would be deemed to be irregularity only when suit appeared to have been filed with the consent of National Bank of Pakistan. This case supports the contention of the learned counsel for appellants that even if it be assumed that the eviction application was filed by the persons not authorised by the Board of Directors but because it was pursued by the Bank Manager, therefore, it should be held that non-signing of the eviction application by the appellants would be only an irregularity not amounting to illegality. However, the learned counsel for other side has placed reliance upon Messrs Muhammad Siddique Muhammad Umer v. Australasia Bank Ltd. PLD 1966 SC 684 at p.695 wherein their Lordships of Supreme Court observed that:- "Attorney for instituting suit on behalf of a public limited company, reference to the articles of association was necessary to see whether the Directors were competent to delegate such power."
8. ' It further runs:-- "In saying that, learned Judge has evidently overlooked that as a rule the Articles of Association of a company contain special provisions prescribing for the manager in which the seal of the company may be affixed and that those who deal with a company are bound to see that the document on the face of it accords with those provisions of the articles. It is only when it does so and the instrument is on the face of it regular, persons dealing with a company have a right to presume that the seal so affixed has been duly affixed, that the Directors were fully appointed and their signatures duly made. The burden only then shifts to prove the contrary on those who allege it. Again, the law requires that, prima facie, those who deal with a person acting under or purporting to act under a power of attorney are upon enquiry and are bound to satisfy themselves as to the authenticity of that power. It is only when such a person acts or purports to act under a properly executed power that the principle cannot repudiate his action."
(ii) Mst. Rehmat Bibi v. Messrs Abid and others 1987 M LD 2818 wherein learned Single Judge observed that eviction application would not be maintainable in case person files ,eviction application on behalf of landlord without producing power of attorney duly executed in his favour by the appellant.
(iii) Munir Hussain v. Mst. Mehrun Nisa PLD 1982 Kar. 71 wherein learned Single Judge at p.75 observed that "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.
9. Learned counsel for appellant was also unable to point out anything in the above special power of attorney to show that attorney was authorized to sign, verify and present ejectment application in question".
(iv) Shahabuddin and others v. Mst. Mariam Bibi and others 1995 M LD 45 wherein learned Single Judge at p.61 'observed:- "The power of attorney has to be strictly construed and a person authorised .To do a particular act will do only that specific act and will not travel beyond the authority vested in him. Judicial proceedings launched in a manner not authorised by a power of attorney executed in favour of a person and conferring on him certain authority will be a nullity in the eye of law."
10. ' In the instant case the appellant is a Banking Company and present eviction application has been filed by Messrs Ibrahim Bawani and Ghulam Muhammad as attorneys but none of them has filed any authority or attorney empowering the said persons to verify, sign and file the said application against the respondent which fact has also been admitted by the P.W. Imdad Nabi Siddiqui in his cross-examination that on the basis of oral instructions of management, eviction application was filed against the respondent, consequently, there could not be said to be a legal authority vested in the said person to file or present the eviction application considering the fact that the Supreme Court of Pakistan has also laid down the principle that on behalf of a public company reference to Article of Association would be necessary to see whether Directors were competent to delegate such power with regard to institution of the suit. With the respect to the learned Single Judge's view, I am unable to subscribe that mere fact that the matter was being pursued by the Manager, therefore, non-filing of attorney would be mere irregularity. In the circumstances, contention of learned counsel, for appellant has no merit and substance.
11. ' Next contention of the learned counsel for appellant is that the learned Rent Controller has erred in holding that the respondent has not sublet the tenancy premises and has misread the evidence in the said respect.
12. ' The appellant in the eviction application has only stated that the respondents have sub-let tenancy premises to third party without naming the so-called third party as to who was put into possession of the demised premises. In the affidavit-in-evidence of Afzal Baig he has stated that the respondent without permission and consent of the appellant has sub-let the part of demised premises to third party namely Messrs Nazer Industries Ltd. And Industrial Management Ltd. As was shown by photographs P.1 and P.2 and photo copy of daily "Dawn", dated 9-9-1979 and further that the said third party had put their name plate outside the rented premises. No other evidence is produced to prove the sub-letting as alleged by the appellants. Afzal Baig the appellant's witness in the cross has admitted that the proprietor of the respondent's company was Mr. Nazer Mooraj and showed his ignorance whether Kamal Mooraj was also partner of the respondent's firm whereas he admitted that Abbas Mooraj used to sit there. The said witness also showed his ignorance as to the fact that Nazer Mooraj, Kamal Mooraj and Abbas Mooraj were owners of Nazer Industries. The said witness also stated in the cross that in 1981 when he filed affidavit, Nazer & Company was there and Nazer Industries and Industrial Management were also there. He also admitted that there was sign board of office premises of Nazer Industries which gave him impression that premises were sub-let. He also stated that besides the above, there was no other documentary prove subletting. The premises were let out to Nazer Mooraj Abbas. Mooraj. The respondent Nazer Mooraj in his affidavit-in-evidence has denied the subletting of premises and has stated that he and his sons had floated the private limited company under the name and style of Nazer Industries Ltd.. Having its registered office in the case premises of which he was Managing Director and his sons Abbas Mooraj and Kamal Mooraj were Directors in the said company. He further stated that In the year 1968 he and his sons abovenamed moved private limited company under the name and style of Nazer Industries with Head Office in the case premises of which he was Managing Director and his sons were also Directors in the said company. He stated that the premises has not been sub-let to any third party and all three companies were family concern with no outside partners/Directors/share-holdeRs, In support of the statement on oath of the respondent, certificate of incorporation', certificate of bank and income-tax, insurance letters have been produced to show that all these companies belonged to the above named respondents. The appellants in their evidence have only relied upon the sign board which was placed outside the case premises as evidence in support of their plea of sub-letting. Mere placing of sign board outside office which itself being in the name of respondent's company would not prove the sub- letting on the part of the respondent. Overwhelming documentary evidence has been produced to rebut the statement of the appellant's witness. The appellants, as per his own admission have stated ignorance about the facts suggested to him in the cross-examination which have been affirmed by the respondents on oath in their affidavits-in-evidence and the said testimony could not be shaken in the cross. No parting with possession has been proved by the appellants in respect of premises having made by the respondents, therefore, the contention of the appellants has no merit, which called for no interference to the finding of the learned Rent Controller.
13. ' The third contention of the learned counsel for appellants is that the respondents have carried out constructions and alterations which acts have impaired the value and utility of the tenancy premises. The appellants P.Ws. Messrs Afzal Baig and Fazlur Rehman in their affidavits-in-evidence have stated that the respondents have made alterations in the tenancy premises and have constructed bath rooms without the permission of the appellants thereby have impaired the value and utility of the premises. The respondents' witness Nazer Mooraj in his affidavit-in-evidence has denied that any alteration or construction in the rented premises has been made so also any such act has been committed which could be said to have materially impaired the value and utility of the premises. No reliable and material evidence has been produced by the appellants to prove that the alterations and constructions were made and raised by the respondents in the tenancy premises and which construction and alterations were of such a nature which could be said to have materially impaired the value and utility of premises. Even if it be assumed that bath room has been constructed which though not proved to have been constructed would not be such an act which could be said to have materially impaired the value and utility of the' premises in dispute. Allegation has remained only allegation which could not be proved by satisfactory evidence by the appellants while the respondents have successfully rebutted same.
14. ' In view of above evidence and reasoning's there is no merit in the contention of the learned counsel for appellants, consequently, no exception could be taken to the finding of learned Rent Controller. Accordingly, I do not find merit in the appeal which is hereby dismissed.
15. ' These are the reasons in respect of short order passed on 13-10-1998.