' This petition arises out of the order dated 21-1-2002, whereby the learned Vth Additional District Judge, Karachi East, dismissed F.R.A. No,123 of 2000, preferred against the judgment dated 27-5- 2000, passed by the learned VIII Rent Controller, Karachi East dismissing. The Rent Case No,217 of 1999 of the petitioner, filed under section 14 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the SRPO) on the ground of his personal bona fide requirement.
2. The rent case was filed before the learned Rent Controller through the attorney/son of the petitioner, although the same was thumb-marked by her/landlady besides signing it by the attorney.
3. The respondent contested the proceedings by filing written statement.
4. The trial Court framed the following issues:--
(1) Whether the ejectment application as filed is maintainable under law?
(2) Whether the applicant is entitled to get the opponent ejected under the provisions of section 14 of the Sindh Rented Premises Ordinance, 1979.
(3) What should the order be?
5. The attorney examined himself on behalf of the petitioner and closed the side. While respondent No,3 examined himself. Thereafter the learned trial Court dismissed the rent application, holding that the rent case was filed by the attorney who was not authorized to do so under section 14 of the SRPO. It has also been observed that the attorney is co-owner and had stepped into witness-box to lead evidence on behalf of his mother. It further went to observe that no doubt law permitted that the applicant can produce/lead her evidence through attorney, but the ejectment application has to be filed by the specified class of a person by themselves and not through attorney. In the instant case the ejectment application is filed through the attorney.
6. The Appellate Court maintained the above finding of the learned trial Court relying upon the case-law reported as Mehmood Alam v. Tehseen Asghar PLD 2001 SC 238.
7. I have heard the learned counsel for the parties and examined the record, copies of which have been produced alongwith the petition.
8. A perusal of the rent application under section 14 of the SRPO shows that it had been filed by the landlady through her attorney and son Muhammad Nawaz. It is signed by the attorney and thumb- marked by her as well. In the circumstances, the trial Court was not justified in holding that the application was not filed by the petitioner but by her attorney; It is however, correct that at the time of evidence her attorney entered into witness-box and not the landlady.
9. Learned counsel for the petitioner drew my attention to the case-law reported as Syed Abdul Rauf v. Abdul Sattar 1998 SCM R 2525 wherein while dealing with the similar question, the Honourable Supreme Court in para. 6 observed that the applicant cannot be non-suited for the reasons that for some reason, he or she was incapable to appear in Court in person. The relevant portion of the judgment reads as under:-- "6. The Courts are meant for the citizens from where they seek justice and, therefore, to put a clog or non-suit them on account of non-appearance even in genuine cases without any valid and cogent reasons would be a dangerous proposition for administering justice with even hands between the parties. In our opinion, it will not be in the interest of justice to lay down that in every case where a party does not appear or arranges his appearance through attorney, an adverse inference should be drawn against him. Such a rule if laid down, would result into great hardship in cases where the parties, for instance, reside abroad, who will have to sue and defend themselves through their attorney."
10. In the present case, it has not been suggested by the respondent in the cross-examination that either the power of attorney is forged or the landlady deliberately and with mala fide failed to appear in Court, and or that the power of attorney is used to file false case on behalf of the landlady/mother.
11. Perusal of the judgment shows that neither Court below discussed the merits of the case. There is no reason to hold that the ren, application as filed by the petitioner is not maintainable.
12. The only resolution is to remand the matter to the trial Court for deciding the case on merits after hearing of both the parties.
13. The petition is heard at full length at Katcha Peshi stage. For reasons stated above the same is admitted to regular hearing and allowed. Consequently, the impugned orders are set aside and the matter is remanded to the trial Court for adjudication on merits after hearing both the parties.