1995 PLP 1394 (MLD)

Respondent No. 1 sought ejectment of the appellants on the ground of default in payment of rent w.e.f. 20‑5‑1976 and personal requirement of the premises for bona fide use and occupation of his son who was jobless while he himself being an old man had retired from Government service. In their written statement respondent Esso Eastern denied the relationship of landlord w.e.f. 15‑9‑1976 as by reason of Esso Undertakings (Vesting) Ordinance, 1976 all rights, titles, interests etc. stood transferred and vested in the Federal Government. They contended that by virtue of section 5(1) of the above Ordinance Federal Government transferred all Esso Undertakings to the State Oil Company w.e.f 15-9‑1976 and thereafter on 30th December, 1976 Federal Government merged the same into Pakistan State Oil Company Limited. Consequently all rights and obligations pertaining to the lease vested in P.S.O. While denying their liability they maintained that on the date of filing ejectment case in September, 1977 respondent No. 1 had no cause of action against them and the application as against them was misconceived, ill‑advised and not maintainable. In a separate written statement appellant Pakistan State Oil while referring to the provisions of Ordinance, 1976, submitted that for all intents and purposes they were the tenants in respect of premises and under the provisions of section 7 of the above Ordinance, tenancy continued in their favour even on the expiry of term of lease. This appellant submitted that after the expiry of lease, tenancy continued by operation of law from month to month. They added that respondent No. 3 was the dealer appointed by respondent No. 2 and in physical possession of the premises. Although the dealership agreement was terminated by notice, dated 4th April, 1976 and this respondent was required to hand over the Petrol Pump equipment and appurtenances and had to vacate the premises on or about 19th July, 1976 but he did not deliver the possession, as such it could not be delivered to the landlord as desired by him. Receipt of legal notice, dated 30th July, 1976 was admitted with a reply that the position had been explained by them through their letter dated 18‑8‑1976. In this letter it was reiterated that despite a timely notice and termination of dealership, the dealer did not vacate the premises as required of him with the result that unless the dealer vacated the premises or he was evicted by process of law, they could not deliver possession to the landlord. With regard to the default in payment of rent, they did not admit the same but added that they would submit the actual position of payment of rent at the tine of filing rent account as complete information could not be gathered from their Account Section. Personal requirement of the premises in good faith was denied for want of knowledge. Respondent No. 3 in F.R.A. 199 of 1988 in his written statement urged that he was neither the tenant of the respondent No. 1 nor sub‑tenant of the appellants or their predecessor and, therefore, the ejectment application as against him was not maintainable. According to him, he had been improperly joined in the proceedings and there was no relationship of landlord and tenant between the parties. No specific denial was made in respect of other averments except that the pleadings were ambiguous and vague. In support of his case, landlord examined his son and attorney Ehsan Ahmad. Appellant P.S.O. on the other hand examined their Legal Executive Murtaza Hussain while respondent No. 3 examined one of the legal heirs, namely, Muhammad Aftab Shamsi. Learned Controller struck the following issues for determination: "(1) Whether there exists no relationship of landlord and tenant between the parties and the present application is not maintainable? (2) Whether the opponent has committed wilful default in payment of monthly rent? (3) Whether the tenement in question is bona fide required by the applicant for his personal use? (4) What should the order be?" On assessment of evidence learned Controller held that there existed relationship of landlord and tenant between the parties except Haji Afaq Hussain who was the dealer of the appellant P.S.O. Ejectment application was found to be maintainable at law. On issue of default, the learned Rent Controller held that appellant/tenant had committed default in payment of rent. With regard to the bona fide personal requirement of the premises, he held that after the death of Haji Sultan Ahmad, his legal heirs had been brought on record while his son had not mentioned about the requirement for personal use. He, therefore, held that this issue was not proved. He ordered eviction of appellants from the premises which has been impugned in these appeals. I have heard M/s. Muhammad Anees and Abdul Aziz Khan, learned counsel for appellants, and Mr. Musheer Alam for respondent No.

1. It has been urged on behalf of appellants that ejectment application was not maintainable at law inasmuch as power of attorney in favour of Ehsan Ahmad was neither filed with the Rent Case nor produced in evidence. On being pointed out that photostat copy of the registered power of attorney had been filed alongwith the ejectment application learned counsel for P.S.O. submitted that this document was not exhibited in evidence and thus not proved. Learned counsel for appellant in F.R.A. 199 of 1988 referred to the case of Mehdi Hassan v. Ghulam Ahmad and others (PLD 1964 (West Pakistan), Lahore 648) and Qadir Bakhsh v. Abdul Rehman (PLD 1952 Baghdadul Jadeed 59). In the first case under repealed Ordinance VI of 1959, it was held that since an objection to the validity of power of attorney was taken, it was for the petitioner to have proved that it had been validly executed by landlord. The Rent Controller under the circumstances, could not order the ejectment unless this matter had been decided by him. The second case which arose out of a suit, it was held in the context of Order XIII, rule 4, C.P.C. that since the documents were neither tendered in evidence nor proved, it could not be said that such documents were legally brought on record. Learned counsel appearing for appellants in F.R.A. 287 of 1988 referred to the following cases in support of his argument that the ejectment application was not maintainable in law; (1) Mst. Rehmat Bai v. M/s. Abid Brothers (1987 MLD 2818); (2) Mst. A.B. Aisha v. Sultan Ahmad Tahir and another (1989 MLD 2166); (3) Ghazanfer Hussain v. Rehmat Bibi and 5 others (1989 CLC 310); (4) Ameer Hussain v. Mst. Mehrunnisa (PLD 1982 Kar. 71) and (5) Zawar Hussain v. Abid Hussain Qureshi (1994 MLD 2251). In the first case, it was held by a learned Judge of the Court that attorney was not legally competent to sign and verify the ejectment application for and on behalf of landlord as no power of attorney had at all been presented in support of the claim. In the second case, a learned Judge of this Court held that the eviction application was filed on behalf of landlord by an attorney who was not properly, validly and legally constituted general attorney for purpose of the case and it was not within the scope of his authority to file case or sign ejectment application or even to give evidence on behalf of landlord. In the third case, it was held that power of attorney should always be construed strictly and powers which have not been specifically given to an attorney or do not flow from the contents of documents, should not be deemed to have been conferred on the attorney concerned. In the fourth case, special power of attorney did not authorise verification, signing and presentation of ejectment petition and in these circumstances it was held that the petition filed on the bases of such power of attorney was not validly instituted. In the last case it was observed that power of attorney has to be construed strictly. In this case the person in whose favour general power of attorney was granted had filed affidavit‑in‑evidence and appeared in Court to give evidence and principal had conceded that power of attorney granted to attorney did not confer any express power to give evidence. It would appear that in the above cases a plea was raised about lack of execution, validity and/or defect in the power of attorney by the opposite‑party whereas no such plea was raised on behalf of appellants in the written statement or in the evidence. In fact, there was no issue with regard to the execution or validity of the power of attorney before the Controller as such neither this point was dealt with nor any finding recorded by the learned Controller. This new plea, therefore, cannot, in my view, be raised for the first time at the appellate stage. A perusal of the verification clause in the ejectment application would show that Ehsan Ahmad had signed and verified the ejectment application as son of the landlord as well as his attorney. In the list of the Annexures to the eviction application at Serial No. 8 there is a mention of photocopy of general power of attorney dated 29‑6‑1977 registered with the Sub‑Registrar on the same day. There is, thus, no substance or force in the contention that the power of attorney was not produced alongwith ejectment application or that it was incompetently taken into consideration. In his evidence Ehsan Ahmad stated that he was the attorney of the respondent/landlord and fully conversant with the facts of the case. It is worthwhile to note that no question about his authority to act as attorney on behalf of his father was put to him except that he had not filed any power of attorney alongwith his affidavit‑in‑evidence. It would, thus, appear that execution of power of attorney or its genuineness was not challenged during the cross‑examination. In view of the fact that the power of attorney was filed alongwith the ejectment application, appellant P.S.O. cannot be said to be unaware of it or taken by surprise. The fact that no question was put to the witness about the validity or otherwise of the power of attorney would tend to show that there was no controversy about his authority to act as attorney on behalf of his father. In the absence of any issue on this point, respondent No. 1 was not obliged to produce the document in evidence since it was already placed on record without any objection from the other side. The power of attorney being a registered document and placed on record with the commencement of the proceedings does not admit of any ambiguity, uncertainty or misunderstanding. Indeed, the power granted to the attorney is general in nature and confers all sorts of rights, interests, claims and authority in favour of respondent's witness which as observed earlier was not questioned at any stage of the proceedings. In these circumstances, I am of the view that the cases cited on behalf of appellants do not advance the plea raised by them and are of no assistance to them. In this view of the matter it is not necessary to deal with three reported cases cited on behalf of respondent No. 1 which are clearly distinguishable on facts. Reverting to the issue of default, it is the case of respondent No. 1 that the appellants had failed to pay rent with effect from 20‑5‑1976 to September, 1977 when the ejectment application was filed. As pointed out earlier, appellants did not deny the default but appellant P.S.O. submitted that proper facts would be brought before Court on receiving full information from their Accounts Section. Respondent's witness Ehsan Ahmad in his evidence stated that opponent No. 2, i.e. P.S.O., did not deposit the rent from 19‑7‑1976 in the Court which would presuppose that the rent up to this date had been actually paid. As regards the default for the subsequent period, appellant's Legal Executive Murtaza Hussain in his evidence admitted that after taking over (rights and liabilities) opponent No. 2, i.e. P.S.O. had paid no rent in respect of the disputed premises. There is, thus, no controversy about non‑payment of rent for the period subsequent to 19‑7‑1976 till the filing of eviction application in September, 1977. In his affidavit‑in evidence this witness tried to cover the issue relating to default by stating that as fresh lease deed was not on the record there was confusion regarding the payment of rent for which respondent No. 1 was himself responsible but I see no merit in this contention since there was no confusion about liability to pay rent for the premises at any moment. After a categorical statement in writing by the original tenant to the effect that they had no intention to renew the lease but they would continue renting the premises up to 19th July, 1976 there was absolutely no misunderstanding with regard to liability for payment of rent for the period subsequent to the expiry of lease. There is another aspect of the case, namely, the fact that vide order dated 1‑3‑1979 learned Controller passed a tentative rent order directing the appellants to deposit rent amounting to Rs. 34,000 being the arrears of rent from 20‑7‑1976 to February, 1979 before 15‑5‑1979. This order was subsequently corrected by substituting the amount of Rs. 31,400 instead of Rs. 34,

000. Admittedly appellant P.S.O. in compliance with this order deposited Rs. 33,400 towards the arrears of rent on 11‑4‑1979. Both the circumstances would thus support the view that there was a default in payment of rent without any lawful reason or justification on the part of the appellants. Referring to clause 4(d) of the lease deed, Exh. 0/1, it was urged on behalf of appellants that since respondent No. 1 had failed to issue any notice to appellant P.S.O. he could not seek ejectment on the ground of default. This clause reads as under: "If any rent shall be 60 days in arrears (whether legally demanded or not) or if the tenant shall omit to perform or observe any covenant or condition on the part of the tenant herein contained and shall continue for 30 days after notice thereof to the tenant the landlord may re‑enter forthwith upon the demised premises or upon any part thereof in the name of whole and the tenancy shall thereupon determine but without prejudice to any claim which either of the parties hereto may have against the other in respect of any breach, non‑performance of any of the covenants and conditions herein contained:" In support of this contention Mr. Muhammad Anees, learned counsel for appellants, referred to the cases of Younas Rizwan Shaikh and others v. Pakistan State Oil Company Limited (PLD 1988 Kar. 338) and Mirza Jawad Baig v. Pakistan State Oil Company Limited (1985 MLD 536). In both the cases, the rule laid down does not cover the present case, as there was no subsisting lease on the date of default and also for the reason that the original tenant had himself notified their' intention to the landlord that they had no intention to renew the lease. In these circumstances, it was not obligatory on the part of respondent No. 1 to have issued a notice to the original tenant or P.S.O. before seeking ejectment from the demised premises. Issue relating to bona fide personal requirement of the demised premises was decided against respondent No.

1. Since learned counsel for respondent/landlord has not filed any cross‑objection nor argued this issue at the hearing of appeal, no adjudication on this point is called for. In view of aforesaid discussion both the appeals must fail and are hereby dismissed. In view of the fact that parties are litigating since 1977 and the demised premises are a site used for sale and marketing of petroleum products, I would allow a period of 120 days to the appellants to vacate the premises subject to deposit of monthly rent with the Controller during this period. H.B.T./P‑310/K Appeals dismissed.