P L D 1967 Karachi 424 (PLP)

2. The building on Burns Road, known as Jalaluddin Manzil, was owned by the late Mr. Jalaluddin, who died some time in 1960. The appellant is in occupation of the top floor of the building at the monthly rent of Rs.

34. The heirs of the late Mr. Jalaluddin applied to Mr. Jaffer Naim, the Rent Controller, for the appellant's eviction from the tenement in his occupation on the ground that the appellant had failed to pay rent since September, 1960 and the arrears of rent outstanding against him up to the date of application for eviction were Rs. 1,506/75.

3. The application was contested by the appellant on several ground. It was contended by him that all the heirs of the late Mr. Jalaluddin had not joined the deceased's. son, Muhammad Salahuddin, in bringing the application for the' appellant's eviction; that these heirs themselves failed to collect rent from the appellant as there were some disputes between them; and that the appellant is entitled to claim the adjustment of Rs. 500, which he alleged to have spent on repairs, against rent.

4. The following issues were settled by the Rent Controller for the decision of the case. (i) Whether the application is liable to be dismissed as other co‑owners have not been joined? (ii) Whether the opponent is entitled to adjust Rs. 500 cost of repairs towards rent? (iii) Whether the applicant failed to collect rent from the opponent and if so, to what effect? (iv) Relief.

5. The findings on all these issues were against the appellant. The Rent Controller, by order dated 27‑2‑1965, held that all the heirs of the late Mr. Jalaluddin had given a power of attorney to one of them, namely, Muhammad Salahuddin who, in pursuance of this power of attorney appointed Muhammad Aslam as agent for the collection of rent from the tenants of the building and to take legal proceedings on behalf of the co‑owners. On issue No. 2, the learned Rent Controller disbelieved the appellant that he had spent Rs. 500 on repairs or that he was authorised to incur this expenditure by the landlords. On issue No. 3, the Rent Controller found that the appellant's allegation that the heirs of the late Mr. Jalaluddin themselves failed to collect rent from the appellant, was not correct. On these findings, the learned Rent Controller held the appellant to be a habitual defaulter in payment of rent, and accordingly directed him to put the landlords into possession of the tenement in his tenancy.

6. The appellant went in appeal to the Additional District Judge against this order of the Rent Controller. The appeal was decided by Mr. Allah Buksh Khan by his order dated 4‑7‑1966. The learned Additional District Judge agreed with the findings of the Rent Controller and upheld the order of eviction made against the appellant. The appellant has now come to this Court in second appeal. His case has been argued at great length before me by his learned Advocate, Mr. Abdul Latif Channa, who put forth the following points in support of the appeal :‑ (i) that all the co‑heirs of the late Mr. Jalaluddin did not join Muhammad Salahuddin in bringing the application for the eviction of the appellant; nor were these co‑heirs brought on record as opponents in the proceedings in the Courts below. (ii) that the powers of attorney held by Muhammad Salahuddin and Muhammad Aslam, being unregistered docu ments, could not be used in evidence. (iii) that the trial Court and the Ist Appellate Court failed to consider the evidence of the appellant that the heirs of Jalaluddin themselves failed to collect rent from the appellant.

7. I find all these contentions to be without any substance. As regards the first point, the position is that Mr. Jalaluddin left as his heirs Mst. Tahira Khanum (widow), Habiba Khanum and Akhtari Khartum (daughters) and Muhammad Salahuddin and Ahmed Ali Mohiuddin (sons). Habiba Khanum, Akhtari Khanum and Tahira Khanum (this last person acting on her behalf and also as guardian of her minor son Ahmed Ali Mohiuddin) executed a general power of attorney in favour of Salahuddin on 3rd October 1963. This instrument empowered the attorney to manage the property of the donors, that is, Jalaluddin Manzil, Burns Road; Karachi, to collect rents thereof and to institute legal proceedings on the Donors' behalf Clause 10 of the instrument empowered Salahuddin to appoint any other person as agent or his substitute to exercise the power conferred on him by the power of attorney. Salahuddin, in pursuance of this provision, appointed Muhammad Aslant as agent and his substitute by a power of attorney dated the 4th of November 1963, Muhammad Aslam was given all the powers held by Salahuddin under the power of attorney dated the 3rd of October 1963. It is this Muhammad Aslam who instituted the proceedings for the eviction of the appellant before Mr. Jaffer Naim, and he did so in his capacity as attorney not only of Salahuddin, but also of the other heirs of the late Mr. Jalaluddin, namely; Tahira Khanum, Habiba Khanum, Akhtari Khanum and Ahmed Ali Mohiuddin. All these persons joined together in filing the application for the appellant's eviction through their attorney Muhammad Aslam. It cannot, therefore, be said that any heir of Mr. Jalaluddin had been left out of the proceedings instituted in the Courts below f, r the appellant's eviction.

8. For the second contention, Mr. Abdul Latif Channa relied on the decision of the Bombay ,High Court in Gumpat v. Adarji ((1879) 3 B L R 312), which has held that a power of attorney which authorities the donee to recover rent of an immovable property belonging to the donor for the donee's own benefit is an assignment within the meaning of clause (b) of section 17(1) of the Registration Act and, therefore, is compulsory registerable. But this decision is not applicable to this case, because here, neither Salahuddin, nor Muhammad Aslam, has been authorised to appropriate the donors' share in the income of the property to his own use. The learned Advocate was not able to draw my attention to any other case wherein it may have been held that a power of attorney merely to collect rent is an assignment and, therefore, requires compulsory registration under the; Registration Act.

9. On the last point also, the contention of Mr. Abdul Latif Channa is against the evidence brought on the record. It has been found by both the Rent Controller and the First Appellate Court, that the appellant failed to prove that there were any disputes between the heirs of Mr. Jalaluddin and who, for this reason, failed to collect rent from him, or that any of them instructed the appellant not to pay rent. The finding on this point is that the appellant is a habitual defaulter. In this connection, both the Courts below have referred to the notice dated 7‑10‑63, (Exh. AW 1/3), sent by Registered Acknowledg ment due by Mr. Mirza Yakoob Beg, Advocate, on behalf of the heirs of Mr. Jalaluddin, demanding from the appellant payment of the arrears of rent amounting to Rs. 1,166/75 within 7 days. In his evidence before the Rent Controller, the appellant admitted receipt of this notice, and further stated that he did not send any reply to it. Had there been any dispute between the heirs of Mr. Jalaluddin, or had any of these heirs instructed the appellant not to pay rent pending settlement of this dispute, the appellant would have immediately replied to this notice and put the correct facts therein, so as to rebut the allegation that he had made default in payment of rent. But this the appellant did not do. On the other hand, his case, as brought out in his statement in the trial Court, was that he did not pay the rent because the heirs of Mr. Jalaluddin did not obtain any succession certificate. 1n view of these facts, the Courts below have rightly disbelieved the appellant on the point that he had instructions from the heirs of Mr. Jalaluddin not to pay rent.

10. Mr. Abdul Latif Channa lastly attempted to argue that Tahira Khanum had not been appointed guardian of her son Ahmed Ali Mohiuddin and, therefore, the power of attorney given by her on her son's behalf to Muhammad Salahuddin, and by the latter to Muhammad Aslant, were defective, with the consequence that the application for eviction had not been validly instituted. But this point was not raised either before the Rent Controller or before the First Appellate Court. Nor any question on this subject was put to Muhammad Aslam in cross- examination. It would not be proper to allow the appellant to raise this entirely new point at this late stage. Assuming however, that Tahira Khanum is not the legally appointed guardian of Ahmed Ali Mohiuddin, this by itself will not vitiate in any way the institution of the eviction proceedings in the Court of the Rent Controller. Under Order XXXII, rule 1, C. P. C. a minor may sue through a next‑friend. No order of the Court is required for appointment of the next‑friend of the minor. The only persons who could be appointed guardian of Ahmed Ali Mohiuddin were his mother, his brother Muhammad Salahuddin, or his sisters. The mother and the sisters jointly executed a power of attorney in Salahuddin's favour, and this, person appointed Muhammad Aslam as his substitute. Thus, all the near relations of Ahmed Ali Mohiuddin joined in empowering Muhammad Aslam to manage the property in question, to recover its rents and to institute legal proceedings in connection therewith. The application for eviction made by Muhammad Aslam was on behalf, and for the benefit, of all these persons including the minor. Muhammad Aslam can, therefore, be validly treated to have made this application as next‑friend of Ahmad Ali Mohiuddin and as agent of the other co‑owners. I, therefore, see no force in this contention of Mr. Channa. In my opinion, the eviction proceedings cannot be held to have been vitiated in any way on account of the alleged absence of an order of a competent Court appointing Tahira Khanum as guardian of Ahmed Ali Mohiuddin.

11. The appellant has been found to be a persistent defaulter in payment of rent. His conduct in this case has been far from satisfactory. He knew that the income from the property was the main support of the widow, the minor son and the widowed daughter (Habiba Khanum) of the late Mr. Jalaluddin. Still he elected to refuse to pay rent and subject a widow, her daughters and minor son to the present litigation and its costs. In this view of the matter and for the reasons stated above, I find there is no merit whatsoever in this appeal, which is consequently dismissed, and the appellant is directed to forthwith put the landlords into possession of the premises in dispute. The appellant will pay costs of these proceedings and of the proceedings of the two Courts below to the respondents. K. B. A. Appeal dismissed.