2003 PLP 1393 (YLR)

Shaukat Bakhsh respondent through his General Attorney has brought the petition under section 13 of the Rent Restriction Ordinance, 1959 against the petitioner for his eviction from House No. 16‑R, Farid Town, Sahiwal on different grounds.

2. The petitioner resisted the same with certain preliminary objections and on merits as well. The issues were framed therein. The parties have led evidence in support of their assertions. The learned Rent Controller decided only Issue No. 1 and it was against the respondent and in favour of the petitioner. He had observed in respect, thereof that eviction petition had been tiled by an unauthorized person, who had neither locus standi nor the cause of action to bring the same. He did not give any finding on the remaining Issues i.e. 2 to

4. As a consequence of the above finding on issue No. 1, the ejectment petition was dismissed.

3. The respondent feeling himself aggrieved of the same had brought an appeal against it. Mr. Mushtaq Ahmad, the learned Additional District Judge, Sahiwal accepted the same with the observation that Ch. Suleman Akhtar, Advocate, the General Attorney of respondent was authorised and competent to bring the ejectment petition. He with the same has set aside the impugned order and remanded the case for its fresh decision in accordance with law.

4. The petitioner feeling aggrieved of the same has brought the instant Constitutional petition.

5. His learned counsel has submitted that neither the General Power of Attorney nor the copy of the same was either annexed to the ejectment petition nor was produced in evidence. So the ejectment petition was not filed by an authorized person, hence, the learned Rent Controller has rightly held it to be so. While the learned Appellate Authority has erred in holding it otherwise and in this way the impugned order recorded by the authority is not sustainable in law. In support of the same reliance has been placed upon the case of Rafaqat Ali Khan v. Fida Muhammad Khan (PLD 1986 Peshawar 50).

6. I have carefully considered the submissions of the learned counsel for the petitioner with the help of the copies of the record annexed to the petition.

7. The respondent as stated above had brought the ejectment petition through Ch. Suleman Akhtar, Advocate, who is said to be his General Attorney. The petition was signed by him (General Attorney). It was (ilea through a counsel namely Mr. Ahmad Saeed Sheikh duly appointed by him (General Attorney). The plea raised by the petitioner is that the ejectment petition was tiled by unauthorized person and neither the General Power of Attorney nor the copy of the same was annexed to the same and it was also not produced in the evidence. It is worth mentioning here that (petitioner) did not raise any such plea in his reply to the petition. He has taken such stance in his evidence. So this would be not in conformity to his pleading. It may be advantageous to mention here that the parties cannot be allowed to set up case beyond the pleading.

8. Anyhow, Ch. Suleman Akhtar, Advocate as is apparent from his evidence as A.W.1 is the brother of wife or the respondent. This position has not been disputed by the, petitioner's side. He in his evidence has categorically stated that he is General Attorney of respondent and he has produced his General Power of Attorney. He has not denied that he is not General Attorney of the respondent. It may be worth mentioning here that the petitioner as R.W.2 in the cross‑examination has not denied that he was appointed General Attorney vide such deed registered on 22‑7‑1989. He, however, has shown his ignorance in respect of the same. However, it definitely would mean that he has not denied such position. It may also be worth mentioning here that he in his examination‑in‑chief has himself stated that on asking of respondent he had been paying rent to him since 1st of January to June 1992. His exact words in this regard are re produced herein below for facility of reference:‑‑

9. He in the cross‑examination has also admitted that Ch. Sulemah Akhtar was with the respondent when he had got the house on rent from him. He had also admitted it to be correct that Ch. Suleman Akhtar had been receiving the rent from him and that he had brought suit for permanent injunction against him (respondent) through Suleman Akhtar.

10. All this sufficiently shows that the petitioner had got the house on rent from the respondent in the presence of Ch. Suleman Akhtar, Advocate and on his (respondent) asking he had been receiving the rent and the petitioner had earlier sued him through him.

11. He (petitioner) as said earlier had also not denied that Ch. Suleman Akhtar had been appointed General Attorney vide such deed registered on 22‑7‑1989.

12. Furthermore, Ch. Suleman Akhtar, Advocate had produced the General Power of Attorney before, the learned Additional District Judge, who had retained the copy of the same on his tile of the case. So it sufficiently stands established on record that Ch. Suleman Akhtar, Advocate is General Attorney of respondent. It may also be necessary to mention here that respondent never came forward to say that he is not his attorney. He rather by his conduct in the proceedings has shown such conferment of authority. So the conclusion drawn by the learned Appellate Authority has not at all in any way been found erroneous or against the evidence on record. There is thus neither any misreading nor no‑reading of evidence on record or any other illegality found with the impugned order. The authority referred to by the side of the petitioner in these circumstances do not favour him. It rather favours the case of the respondent as in the same it has been held that the person holding power of attorney authorizing him to make appearance, file application and do acts on behalf of the party respondent would be recognized agent of such party and he could validly institute suit and appoint counsel for conduct of the case. There thus no valid exception can be taken to the impugned order. The instant writ petition, thus is dismissed in limine. S.A.K./T‑117/L Petition dismissed.