2003 PLP 1272 (CLC)

Qamar Zaman v. Municipal Corporation, Mirpur and others PLD 2001 SC (AJ&K) 18) distinguished. Ch. Mubashar Nisar Khan and Mian Maudood Akbar for Petitioners. Brief facts in this writ petition are that an eviction petition was filed by the landladies against the respondents in respect of Strop No.12-D Commercial Peoples Colony, Faisalabad that this shop was transferred to them by their father. Property was under tenancy of respondents who stopped paying rent to them, therefore, the eviction petition was filed which was decided on 26-1-1985 in favour of the petitioners. Appeal was filed, which was accepted vide judgment and decree dated 20-7-1986. A writ petition was filed in the Lahore High Court and during. pendency, of same an agreement was executed between the petitioners and predecessors-in-interest of the respondents that the rent will be Rs.1,750 per month to be enhanced according to law and tenancy will be from 1-1-1991 till 30-12-1998 and possession will be handed over to the petitioners. The respondents have committed default and the possession is riot handed over to the petitioners, therefore, eviction petition was filed on 11-1-2000. This petition was contested.

2. In the present writ petition the precise grievance of the petitioners is that the husband of Mst. Naila has placed a special attorney on the file and he appeared as a witness and when they objected during his appearance as witness he stated that although his special power of attorney is on the file but he is appearing in his own capacity as an independent witness. An application was filed to rule out the evidence of the witness and restrain the landlady to appear as her own witness. The learned Rent Controller vide order dated 4-1-2003 dismissed the application while observing that Mian Muhammad Awais has appeared in the Court only as a witness and no embargo can be placed upon the petitioner to appear as her own witness. This order is impugned in the instant writ petition.

3. Arguments advanced by learned counsel for the petitioners are that person who has placed a special power of attorney on the record cannot appear as an independent witness and the petitioner who has attorney to her special attorney cannot appear and give evidence.

4. I have heard the learned counsel for the petitioner and perused the record. A careful perusal of special power of attorney Exh.R.I shows that special attorney is delegated with the powers to engage a counsel in the eviction petition, to pursue the eviction petition, to draw the rent submitted by the tenant, to file an appeal or revision but it never delegated power to the special attorney to appear and give statement in evidence on behalf of the landladies, therefore, the arguments advanced by learned counsel for the petitioners are not convincing and Qamar Zaman v. Municipal Corporation, Mirpur and others PLD 2001 SC (AJ&K) 18 is not applicable to this case. Even this judgment gives observation to the construction of power of attorney that general rule of construction of power of attorney is that it must be construed strictly giving only such authority as expressly conferred or by necessary implication. When no authority is given to the person who is holder of special attorney to appear and give statement on behalf of the petitioners he has specifically been debarred to do so and he has rightly admitted in his cross-examination that he is appearing, as an independent witness on behalf of the petitioners. It is rightly observed by the learned trial Court that learned Rent Controller cannot restrain a party to appear as his or her witness when no delegation of power given to anyone to make a statement on their behalf, therefore, finding no substance in the instant writ petition the same is dismissed in limine. M.B.A./N-306/L Petition dismissed.