P L D 1961 Supreme Court 43 (PLP)

S. A. RAHMAN, J.-This is a certificated appeal from a judgment and decree of the High Court of West Pakistan, Karachi Bench, by which the decision of the Court of first appeal was reversed and the appellant's suit for recovery of Rs. 2,300, by way of arrears of rent, was dismissed with costs in favour of the respondents. The action was brought in the Sub-Civil Court, Hyderabad, on the allegations that the house in question had been rented out by Magan Mal, the owner, to the respondents' father, on the 21st January 1948, and the lessee had agreed to pay Rs. 85 per mensem by way of rent. On the 16th January 1948, Magan Mal had executed an instrument by which he authorised the plaintiff to recover the rent of the house in question and had also made an endorsement to that effect on the rent note, dated the 21st January 1948. This "agreement" received confirmation of the Deputy Custodian of Evacuee Property, by order, dated the 15th April 1950. By that time, apparently, Magan Mal had become an evacuee, by migration to India. The original tenant had died before the suit was brought and the respondents, who are his legal representatives, were impleaded as the defendants. It was stated in the plaint that the defendants had preferred an appeal to the Custodian against the order of the Deputy Custodian, confirming the agreement between Magan Mal and the? appellant, but the appeal was dismissed on the 17th December 1950. The defendants respondents then approached the Rent Controller, Hyderabad, who, by his order, dated the 29th of November 1950, had fixed Rs. 50 p.m. as rent of the house with effect from the 6th of June 1950. The defendants' father, Karim, had paid six months' rent in advance, for the period commencing on the 21st January 1948 and ending with the 20th July 1948 to Magan Mal himself. Thereafter, the defendants failed to pay any rent. The plaintiff-appellant claimed rent at the rate of Rs. 85 p.m. from the 21st July 1948 to the 5th June 1950, and thenceforward at the rate of Rs. 50 p.m. as fixed by the Rent Controller, up to the 5th February 1951. The total rent due thus came to Rs. 2,314, out of which Rs. 14 were relinquished and a decree was sought for Rs. 2,300 only. The suit was resisted on the pleas that the defendants were not the tenants of the plaintiff who had never been authorised by the Custodian to recover the rent of the property in question and that the house was evacuee property and had vested in the Custodian. The execution of an agreement by Magan Mal in favour of the plaintiff was denied and in the alternative it was averred that any such agreement was void, illegal and unenforceable. It was further asserted that the alleged agreement, on which the plaintiff relied, was a mere power-of-attorney, executed on a two-rupee stamp paper and did not operate as a conveyance or transfer of any interest in the property. As it was an unregistered document, in any case, it failed to transfer any interest in the property to the plaintiff. It was admitted that the defendants, father, Karim had paid rent to Magan Mal for a period of six months at the rate of Rs. 85, but it was denied that plaintiff had any cause of action against the defendants and his competency to sue was challenged. The trial Court found that the suit-house was evacuee property as Magan Mal, the owner, had migrated to India, and therefore, the house vested in the Custodian of Evacuee Property under the provisions of the Pakistan (Administration of Evacuee Property) Ordinance 1949. In respect of the agreement, dated the 16th January 1948 (Exh. 29), the finding was recorded that ex facie, it was a special power-of-attorney, but the plaintiff could not be allowed to sue without a general power-of-attorney from the owner, as required by Rule 85 of the Sind Civil Court Rules. The document was found to be insufficiently stamped and unregistered and as such ineffective to confer any authority on the plaintiff to file a suit for recovery of the arrears of rent. The purported order of confirmation of this agreement between the plaintiff and the evacuee owner, by the Custodian, was declared to be illegal on the ground that the latter's rights in the property were indivisible and that he could not pass on some of those rights to the plaintiff. The argument was also rejected that the plaintiff was acting as an agent of the Custodian. It was observed that the Custodian could not appoint him as his attorney but could file the suit himself, or could recover the rent under Ordinance XV of 1949. The claim for arrears of rent was held to be an actionable claim and, therefore, "evacuee property" within the meaning of the Ordinance. In the result, the suit was dismissed with costs. On appeal, the District Judge, Hyderabad, answered the issues as to whether the appellant could sue on the alleged agreement and whether he could recover the rent, in the affirmative. The learned District Judge pointed out that the agreement in question expressly entitled the appellant to recover the rent and use the house for his own purposes, in consideration of the evacuee owner being granted similar rights in respect of the appellant's house which he had abandoned in Jaipur in India. Since the agreement bad been confirmed by the Custodian under section 16 of Ordinance XV of 1949, the plaintiff was declared to be competent to sue in this case. In the judgment, reference was made to the fact that on the 12th of May 1950, the Deputy Custodian hadinformed the respondents that as a result of the confirmation of the agreement, dated the 16th January 1948, by the Custodian, the appellant was entitled to remain in possession of the house and that the appellant had been informed that he was entitled to realise rent from them. The learned District Judge also adverted to the fact that a reference was made in this case, by the trial Sub-Judge, to the Deputy Custodian, presumably under section 34 of the Ordinance. That officer had returned the following finding-- "House No. B/19-693, Malkani Lane, Hayderabad Sind is an evacuee property. But by virtue of an Agreement between the evacuee owner and Mr. Riazul Ambia, which has been confirmed by us, Mr. Riazul Ambia has acquired aright to remain in possession of it or to put in tenants and to realise rents from them. The other rights of ownership vest in us." The learned District Judge held that the Civil Courts were definitely debarred from disputing the validity and legality of the order of the Custodian in respect of rights in our title to evacuee property. The defendants, it was remarked, were willing to pay the rent to the Custodian and since the Custodian wanted this rent robe paid to the appellant, there was no valid reason why the claim should not be decreed. It appears that on the 17th January 1952, the Additional Custodian (Judicial) had also passed an order, directing the Deputy Custodian to refund all rents realised in respect of the house in question by the Custodian's Department to the plaintiff. A rent demand bill for the house, issued to the respondents by the Rehabilitation Department was also ordered to be cancelled. The Court of first appeal, therefore, set aside the judgment and decree of the trial Court and decreed the suit with costs. The second appeal was heard in the West Pakistan High Court by a Division Bench. The learned Judges remarked that the plaint contained no allegation that the plaintiff had become owner of the house in question. On the other hand, in their view, by pleading authority of the Custodian to recover rent, prima facie, the plaintiff meant that be had been constituted the agent of the Custodian for this purpose. It was then found that the defendants had never attorned to the plaintiff. In view of the finding returned by the Deputy Custodian under section 34 of Ordinance XV of 1949, it was held that, as the Custodian bad made it clear that all the rights of ownership bad not passed to the plaintiff, there could re no question of transfer of the property leased under section 109 of the Transfer of Property Act. It was observed that the plaintiff had never acquired possession of the premises. The finding of the Deputy Custodian given under section 34 of the Ordinance was accepted as conclusive as to the rights or interests' of the evacuee but not as to rights of other persons in this property. It was found that confirmation of a transfer under section 16 of the Ordinance did not dispense with the requirements of the Registration Act and if the agreement was to be construed 'as an assignment of future rents, it did not have any valid effect for want of registration. The appeal was, consequently, allowed and the suit dismissed. It seems to us that the order of confirmation, passed by the Deputy Custodian under section 16 of Ordinance XV of 1949, was misconceived in the circumstances of this case. This section provides that "no creation or transfer of any right or interest in or encumbrance upon any property made in any manner whatsoever on or after the first day of March 1947, by or on behalf of an evacuee, or by or on behalf of a person who has or may hereafter become an evacuee after the date of such creation or transfer, shall be effective so as to confer any right or remedy on any party thereto or on any person claiming under any such party unless it is confirmed by the Custodian." The agreement in this case, executed by Magan Mal is expressly referred to as a special power-of-attorney by him. The executant mentioned that he was migrating from Hyderabad to Jaipur and was handing over the building to the plaintiff, with the condition that he would take care of the said building and rent it to any one, of his own accord and receive the rent from the tenants in the same way as an owner. He was further authorised to keep the rents realised, with himself or even to use them personally. It was mentioned in the agreement that the plaintiff had given to Magan Mal, his own building in India and had granted him similar rights of renting it out to tenants and realising rents. It was declared that he had handed over possession of his building to his special attorney and that if the Governments of India and Pakistan came to an agreement regarding exchange of properties it would be open to the parties to exchange their properties if they so desired. In the end, it was mentioned that the special powers-of-attorney mutually exchanged could only be cancelled by restoring possession of the respective properties to the owners. It is clear that no rights of ownership in the property were transferred by this document to the plaintiff. It is also difficult to spell out of this agreement any exemption from accountability for the rents realised, to the true owners, although it seems that, in consideration of the services to be rendered in recovering rents the plaintiff was authorised to use the rent personally also. No express words were included to indicate that the plaintiff would not be liable to account for everything that he had realised by way of rent to the owner. In the circumstances we are inclined to think that the document did not create any interest in immovable property and did not operate as an assignment of future rents. It was, therefore, not compulsorily registrable under section 17 of the Registration Act. On this view, the order of confirmation passed by the Deputy Custodian seems to have been uncalled for. This, however, does not conclude the matter. Even if the order of confirmation passed by the Deputy Custodian and affirmed on appeal by the Custodian, was irregular or open to exception, it is clear that the Custodian's jurisdiction to declare whether any property is or is not evacuee property, or what right or interest, if any, an evacuee has in any such property, is exclusive, under section 34 of the Ordinance. The finding on this point given by the Custodian would be binding on the Civil Courts. The correct position seems to be that Magan Mal was undoubtedly an evacuee within the meaning of clause (a) of subsection (2) of section 2 of the Ordinance, as he had left Pakistan after the first day of March 1947, for India, following the partition. As soon as he migrated, his property vested in the Custodian as "evacuee property", under section 6 of the Ordinance, with effect from the 1st March 1947. But during the pendency of the suit in the trial Court, the-Deputy Custodian returned the definite finding under section 34 of the Ordinance that the plaintiff had the right to remain in possession of the property in suit and to realise rents, though the other rights of ownership in the property were reserved by the Custodian. This finding was undoubtedly based on the order of confirmation in respect of the impugned agreement. But whatever the grounds of that decision may have been, the finding itself was not open to challenge in the Civil Court. If erroneous, it could only have been corrected by the Custodian, or perhaps, in exercise of the extraordinary writ jurisdiction, by a superior Court. So long as that finding stood intact, the right 'of the plaintiff to possession of the property and to recover rents from the tenants thereof could not be denied by the Civil Court. This clearly establishes the capacity of the plaintiff to sue in the present case in his own right. This position had been consistently adopted by the Custodian vis-a-vis the dispute between the parties, prior to the institution of the suit as well. Strictly speaking, the right to realise rents vested in the Custodian of 'Evacuee property, for the years in question. The Custodian, however, did not constitute the plaintiff as his attorney for realisation of such rents, as was pointed out by the High Court. On the other hand, he, rightly or wrongly, recognised his independent status as the person authorised to recover rents. In view of the character of the property and the irregular nature of the alleged order of confirmation, the plaintiff may still be accountable to the Custodian for any rents that he might realise, but in the circumstances explained above, his locus standi to sue remains unassailable in the Civil Court. The objection based on the requirement of Rule 85 of the Sind Civil Courts Rules, would also appear to be without much substance in the circumstances of the instant case. That rule provides that when a party appears by a recognised agent other than a pleader, the agent shall file in Court a power-of-attorney in Form No. 5 of Appendix B to the Rules. Apparently, the special power-of-attorney relied on by the plaintiff is not in strict conformity with that form. But it may be pointed out that the plaintiff is not suing as an agent of any other party. He is suing in his own right and that right has been recognised by an express finding of the Custodian under section 34 of Ordinance XV of 1949. The rule in terms, therefore, is not applicable to his case. The accuracy of the account of rent claimed by the plaintiff is not contested. We, therefore, allow the appeal, set aside the judgment and decree of the High Court and restore that of the Court of first appeal with the modification that the parties will be left to bear their own costs throughout, in view of the circumstances of the case. K. B. A.?????????? Appeal accepted.