1986 PLP 1472 (CLC)

The reasons for dismissing F.R.A. No. 104 of 1985, are enumerated as under:‑ I have heard Mr. Abdul Aziz Khan, Advocate at length. He has contended that the two powers of attorney executed by Lawrence and Patrick, respectively in favour of the respondents Peter and Michel, were not legally proved. He also submitted that the gift deed executed by the Patrick and Michel, in each others favour on behalf of Lawrence and Partick in pursuance of the said powers of attorney were also illegal because there was no such power given therein. Mr. Abdul Aziz Khan, therefore, submitted that the respondents were neither the attorneys of Patrick and Lawrence nor had they inherited the properties in dispute from their uncles by way of alleged gifts. Elucidating his first point he referred to section 95 of the Qanun‑e‑Shahadat which reads as under:‑ "Presumption as to powers of attorney.‑‑The Court shall presume that every document purporting to be a power of attorney, and to have been executed before, and authenticated by, a notary public, or any Court, Judge, Magistrate, Pakistan Consul or Vice‑Consul, or representative of the Federal Government was so executed and authenticated." The plain reading of this section, it has been contended by Mr. Abdul Aziz Khan, would show that it raises a presumption of correctness of powers of attorney which are executed before and authenticated by Pakistan Consul. He pointed out that the endorsements of Pakistan Consul, on the powers of attorney do not show that these were executed before him. He further pointed out that the date of execution of the documents is 28‑4‑1980, while the date of attestation was 29‑4‑1980. Moreover, the executants residence was shown at Maryland while the attestation was done by Pakistan Consul, at Washington which must be at some distance. Thus according to appellants Advocate it would appear that the powers of attorney were not executed before the Pakistan Consul, as required by section 95 of Qanun‑e‑Shahadat, 1984. I do not agree with this contention of Mr. Abdul Aziz Khan. I have perused both the powers of attorney and find that the endorsement on each of them was to the effect that the same were attested notarised in the Consul Division of the Embassy of Pakistan Washington D.C. on 29‑4‑1980, as certified by Second Secretary Mr. Rafat Nizami. There is a presumption of correctness under section 129 illustration (e) that the official acts have been regularly performed. Hence the Court will presume that powers of attorney were executed before the Pakistan Consul, and authentication was performed regularly. The mere facts that word "executed before him" was not written by the Pakistan Consul, or the difference in dates on the powers of attorney and the dates of attestation or even the difference in place of residence of the executants and the Pakistan Consul, would not by itslef lead the Court to presume that regularly performed. The words attested and notarised wide enough to cover execution as well as authentication. I am, therefore, satisfied that the powers of attorney were duly executed and attested and that the presumption provided under Article 95 of the Qanun‑e‑Shahadat Order, 1984 as to correctness of its execution and authentication would apply to both of these powers of attorney. Mr. Abdul Aziz Khan, then submitted that even if it is conceded that the powers of attorney were valid then too the so‑called gifts executed by the respondents Nos. 1 and 2 in each other's favour on the basis of those powers of attorney were in valid as no such powers was given to them in these powers of attorney. He referred to clause No. 1 thereof and pointed out that it gave only authority to sell etc. for consideration but it did not give any power to gift the property. He submitted that agent could not have more powers than that which were given to him. In this connection he relied upon section 188 of the Contract Act. He fortified his submissions with the reliance on the case of Eagle Star Insurance Company v. Usman and Sons P L D 1969 Kar. 123, where it was held that the agent can do only those acts which he has been specifically authorised to do by the power of attorney. Similar view was taken in Muneer Hussain v. Maherun Nisa P L D 1982, Kar. 71 and Saghir v. Qurban 1983 C L C 2127. He submitted that the respondents Nos. 1 and 2 who were brothers inter se had not only acted beyond the power given to them by these powers of attorneys but had also acted in a dishonests and mala fide manner in that they had gifted the shares of other principals who were their uncles, to each other and thus misappropriated the property without any consideration. I would not like to comment on the bona fides of the respondents Nos. 1 and 2 for the simple reason that it was a matter between them and their principals who had not come forward to challenge the gift deeds I would, therefore, also not like to comment on the legality of these two gift deeds for the simple reason that in my opinion it is not necessary to decide this question. Even if it is assumed that the gifts are not valid it would not make any difference. The respondents are co‑owners and co‑sharers to the extent of one‑third share of their father Elyas, whereas the remaining two‑third shares was owned by. Lawrence and Patrick. It is an admitted position that the disputed house 246 JM. Catholic Colony which belonged to Francis, was, after his death inherited by his three sons Lawrence, Patrick and Elyas. Elyas has also died living behind the respondents as his sons and widow. No partition by metes and bounds had taken place between co‑sharers. It is a settled law that any one of the co‑sharers or co‑owners can file the ejectment application against the tenant. Reference in this connection may be made to Shahriyar Ali Pataudi v. Pecora Furnishers PLD 1985 Kar.

47. Moreover, the definition of landlord given in section 2(f) of Sind Rented Premises Ordinance, 1979 is wide enough to include a person who is for the time being authorised or entitled to receive rent in respect of such premises. Hence, the respondents being co‑owners as well as attorneys are entitled and authorised to receive rent in respect of the premises in dispute and were, therefore, entitled to file an ejectment application as well as to claim ejectment on the basis of requirement of the premises in good faith for their own occupation or for the occupation or use of their spouse or children under clause (vii) of subsection (2) of section 15 of the Sind Rented Premises) Ordinance, 1979. As a last resort it was argued by Abdul Aziz Khan that the appellant had made an application for summoning among others, Lawrence and Patrick from America, so that the legality or otherwise of the gift deed of the powers of attorney could be verified but the learned controller dismissed this application and the reasons advanced by him were not satisfactory. This argument has also not impressed me. On the face of it, the application appeared to have been made to protract and delay the proceedings. I am, therefore, satisifed that the learned Controller was justified in coming to the conclusion that the premises in question were required by the respondents for their bona fide personal use. The respondents have alleged that they were in occupation of two rooms only and have got no room for using the same as drawing room, dining room or lounge. Respondent No. 1 was married while respondent No. 2 is unable to marry for want of accommodation. Respondent No. 1 and his wife as well as respondent No. 2 are all working on executive jobs and looking to their status, they require more accommodation than the one in which they are presently putting up. The appellants had denied these facts, in the written statement in a general manner but have not asserted if the number of rooms is more or that their status is low or even that they have got any separate accommodation. Under these circumstances, the mere statement of the respondents on oath that the house is bona fidely required by them for their personal occupation cannot be disbelieved merely because the appellants have opposed the same. In a case reported as Muhammad Ismail v. Asghari Khanum in NLR 1980 Civil Cases 558, it was held. "The deposition of the landlady on oath that the house will be occupied by her cannot be brushed aside merely on the basis of the opposition. She was not cross‑examined by the appellant on this point. In this view of the matter there is no substance in objection raised by the learned counsel." In the case of Syed Ibrahim v. Dr. Mrs. Salima Firdous P L D 1982 Quetta 49, it was observed. "no particular kind of evidence is required to be led by a person claiming a property for personal use. The Court has rather to see the cumulative effect of the entire evidence and if it was confidence inspiring even the solitary statement of landlord may be sufficient to establish his case. In the case reported as Mushtaque Ahmed v. Mrs. Mumtaz Zohra Rizvi P L D 1978 Kar. 188, the learned Single Judge has attempted to explain the words bona fide, mala fide and good faith in relation to the landlord's demand based on personal requirement. It was held: "Accordingly the jurisdiction of the Controller to order eviction on this ground is dependent on his satisfaction that the claim of the landlord is bona fide and his requirement is in good faith. The term 'good faith' has not been defined in the Ordinance but it has been defined in section 2(27) of the West Pakistan General Clauses Act, 1956 as follows: "A thing shall be demed to be done in "good faith" where it is in fact done honestly, whether it is done negligently or not." This definition of the expression 'good faith' necessarily, therefore, implies that the demand for possession of the rented premises must be honestly made. Honesty is a state of mind and is, therefore, a psychological fact capable of proof or disproof only by evidence of conduct. The fact capable of proof or disproof only by evidence or conduct. The word bona fide in the context of the provision in question would also appear to mean the same as 'good faith'. Mala fides, conversely means "in bad faith". It has been held that action taken for collateral purposes not authorised by the law under which the action is taken or actions taken in fraud of the law are mala fide. It is necessary, therefore, for a person (alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the consideration mentioned above (PLD 1974 S C 151). In actual practice a landlord would be deemed to have satisfied the aforesaid conditions by leading evidence of the reasonableness of his needs and if he succeeds in doing so, the onus would shift to the tenant to prove facts which militate against the existence of good faith or which positively establish the dishonesty of purpose on the part of the landlord to claim possession of the premises on the ground of personal need." In Rajab Ali, v. Darius B. Kandawalla P L D 1984 Kar. 20, it was held as follows:‑ , "It follows from the above authorities that the landlord is absolutely free to live in his own house. Once, he has elected to so his demand for eviction of his tenant from the said house would be presumed to be bona fide and based on good faith unless mala fides are alleged and proved against him by the tenant. In the instant case, as has been dismissed in the foregoing paragraphs the appellants have not been able to prove that the respondents demand is mala fide." I am, therefore, satisfied that the order of the learned Controller does not call for any interference and, therefore, uphold the same. I allow four months time to the appellants to vacate the premises. A.A. Appeal dismissed.