' NASIR ASLAM ZAHID, J.---In these two petitions (Civil Petition No,206-K of 1999 and Civil Petition No,243-K of 1999), both filed by Habib Bank Limited, leave is sought against the judgments, dated 4-2-1999 and 6-2-1999 respectively of the Sindh High Court dismissing the two rent appeals filed by the petitioner /landlord confirming the orders of the Rent Controller. We have heard Mr. A.R.
Akhtar, learned Advocate Supreme Court for the petitioner and have also referred to the record.
2. In 1979, separate rent applications were filed by the petitioner-bank against Zelins Limited and M/s. Nazar & Co., both tenants of the petitioner-bank in the same building situated at the corner of Abdullah Haroon Road and M.A. Jinnah Road, Karachi. Zelin Limited is tenant on the ground floor of the Habib Bank Limited building in question where they are running cafe/ restaurant and, adjacent to the tenanted premises in the same building petitioner's branch known as Vaulat Branch is located.
' The case of the petitioner in its ejectment application was that business of its said branch had increased over the years and, therefore, tenanted premises in occupation of Zelins Limited were required by the Bank in good faith; it was also pleaded that the tenanted premises were kept in unhygienic condition causing inconvenience to neighbouring tenements; nuisance was also alleged against the tenants.
' In the other case against M/s. Nazar & Co., who have been in occupation of a premises on part of the first floor of the Habib Bank Limited building as tenants, the allegation of the petitioner-bank was that the tenants had sublet a portion of the rented premises to a third party and had also made alterations and constructions without consent and permission of the petitioner materially impairing the value and utility of the rented premises.
' Both the ejectment applications were contested by the tenants. Ultimately, the separate judgments both, dated 26-8-1987, the ejectment applications were dismissed. Rent Controller held that the ejectment applications were not maintainable. It was held that the petitioner being a limited liability banking company, the ejectment applications had been filed by M/s. Ibrahim Bawani and Ghulam Muhammad claiming to be its attorneys but neither the power of attorney in their favour was produced along with the ejectment applications nor such power of attorney was filed during the proceedings of the cases and that subsequently P.W. Imdad Nabi Siddiqui appeared on behalf of the petitioner-bank but admitted in his cross-examination that the case had been filed on the oral instructions of the management and he also did not produce any power of attorney executed by the petitioner in favour of Ibrahim Bawani and Ghulam Muhammad.
' On merits, as regards the case of Zelins Limited, it was held that the petitioner was not able to prove its bona fides and in fact the reason for filing the ejectment application was that the tenant had not enhanced the rent. On the question of nuisance also, the issue was decided in favour of the tenant.
' In the case of Nazar & Co., the Rent Controller found on merit also in favour of the tenant. It was held that subletting had not been established through the evidence and issues of alterations and acts impairing value and utility of the tenanted premises were also found against the petitioner.
3. As observed, petitioner filed separate First Rent Appeals against the judgments in the two cases decided by the Rent Controller against them out before the High Court also neither copies of the power of attorney were filed nor any resolution of the petitioner-bank authorizing the Branch Manager to file the ejectment applications were produced. In the judgments of the High Court dismissing the First Rent Appeals, reference was made inter alia to two reported judgments. One is of this Court in the case of M/s. Muhammad Siddique Muhammad Umer v. Australasia Bank Limited (PLD 1966 SC 684) and the other is of the Lahore High Court in the case of Zamindar Cooperative Housing Society v. National Bank of Pakistan (1982 CLC 1276). The High Court while dismissing the First Rent Appeals on the question of maintainability of the ejectment applications came to the following conclusion:-- "In the instant case the appellant is a Banking Company and present eviction application had been filed by M/s. 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 persons to sign, file or present the eviction application considering the fact that the Supreme Court of Pakistan has also laid down the principles that on behalf of a public company reference to Articles of Association would be necessary to see whether directions were competent to delegate such powers with regard to institution of the suit. With due 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 the appellant has no merit and substance."
' On merits, the High Court confirmed the findings of the Rent Controller in both the cases.
4. Mr. A.R. Akhtar, learned counsel for the petitioner-bank, advanced the same contentions which had been raised on behalf of the petitioner in the appeals before the High Court. It was argued by learned counsel that the fact that the ejectment applications were perused by the Manager of the bank's branch by itself established that the two ejectment cases had been instituted with authority of the bank and were being prosecuted under its authority. According to learned counsel, it was not necessary to produce any power of attorney in favour of Ibrahim Bawani and Ghulam Muhammad (who had filed the ejectment applications on behalf of the bank) and under the law it was also not necessary that the Board of Directors of the bank should have passed a resolution authorising the filing of the ejectment cases in question. On being questioned, learned counsel admitted that copies of power of attorney executed by the bank in favour of Ibrahim Bawani and Ghulam Muhammad were neither filed with the ejectment applications nor produced during the proceedings, It has been noted that neither Ibrahim Bawani nor Ghulam Muhammad appeared as a witness during the proceedings before the Rent Controller. It was also conceded by learned counsel for the bank that such power of attorney or its copy was also not filed alongwith the memos. Of First Rent Appeals or produced before the High Court during the proceedings of the appeals. The power of attorney has also not been produced before this Court. Learned counsel stated that no resolution has been passed by the bank authorising the filing of the ejectment applications by Ibrahim Bawani and Ghulam Muhammad or by the Branch Manager. No letter or document of the petitioner-bank was produced before the Rent Controller or even before the High Court confirming that the ejectment applications had been instituted under the authority of the bank. As noted, according to learned counsel for the petitioner, all this was not necessary as the 'ejectment applications had been filed at the instance of the Manager of the concerned branch of the petitioner-bank and the cases were prosecuted on behalf of the bank and this was sufficient in law to establish that the proceedings had been instituted and continued under the authority of the bank.
' In the present cases, in the written statement filed by the tenants, it was specifically pleaded that the ejectment applications were not maintainable and issue had been framed in both the cases by the Rent Controller regarding maintainability and, during the evidence led on behalf of the bank, questions were asked in cross-examination about the power of attorney in favour of Ibrahim Bawani and Ghulam Muhammad and also about any resolution having been passed by the bank.
The Branch Manager stated in his cross-examination that the ejectment applications had been filed on oral instructions of bank without specifying the persons or authority who had authorised the filing of the ejectment applications.
' These were cases where authority of the persons who had instituted the rent proceedings, on behalf of the bank had been specifically challenged and in such a situation burden was on the bank to prove that ejectment applications had been competently instituted. Either power of attorney (or its copy) in favour of Ibarhim Bawani and Ghulam Muhammad, who had instituted the ejectment applications ought to have been filed showing that they had the power on behalf of the bank to institute the ejectment proceedings or a resolution of the bank authorising them to institute such proceedings produced in evidence. If this was not done, some document of the bank could have been produced showing that the Bank had authorised the filing of the ejectment applications against the respondents or had ratified the filing of the applications. This was also not done and, despite the findings of the Rent Controller on the maintainability of the ejectment applications having gone against the bank, in the appeals before the High Court also neither power of attorney in favour of Ibrahim Bawani and Ghulam Muhammad nor copy of any resolution of the bank was produced. Even before this Court no such power of attorney or resolution has been produced. No document of the bank has been produced ratifying the action of Ibrahim Bawani and Ghulam Muhammad to file the ejectment applications .
5. According to learned counsel for the petitioner-bank, filing of ejectment applications against the tenants on the ground of personal requirement, subletting, nuisance, etc. Was a matter included in the day to day business of the branch of the bank and, being so the Branch Manager was authorised to file and pursue the ejectment applications and it was not necessary to produce any power of attorney or resolution of the bank or to make any reference to the Articles of Association of the bank conferring authority on the Branch Manager to prosecute and pursue such cases of ejectment.
' We cannot agree with the contention of the learned counsel that the decision to file ejectment applications against the tenants of the bank on the ground of personal requirement, subletting, nuisance, etc., was a routine matter included in the day to day business of the branch of the bank and the Branch Manager could be considered in law to possess requisite authority to prosecute such ejectment cases as he could competently pursue the day to day business of the branch of the bank. Filing of ejectment proceedings under the rent laws against the tenants of the bank is not a matter covered by the day to day routine business of the branch of a bank. In case any objection is raised about the competence of the officer of the bank instituting ejectment proceedings under the rent laws against the tenants of the bank, burden falls upon the bank to establish that the person instituting the ejectment proceedings was authorized by the bank in that behalf. In these cases this burden had not been discharged. The view taken by the High Court in the facts of these cases is not open to exception.
6. It had also been argued that the Rent Controller having found that the ejectment applications were not maintainable, he should have not decided other issues on merits. Contention is without merits. Rent Controller did not hold that he had no jurisdiction in the cases. What he held was that it had not been established that the persons instituting the cases had the requisite authority. In the circumstances, evidence of the parties having been recorded, Rent Controller was not debarred from deciding the issues relating to merits of the cases.
7. On merits, there are concurrent findings of the Rent Controller and the High Court in both the cases and on the state of the record we are not inclined to interfere with such findings of facts.
8. As a result, we find no merit in these two petitions which are dismissed and leave is refused.
' This order, however, does not debar the petitioner-bank from filing fresh competent proceedings against the respondents in case fresh causes of action, if any, arise.