P L D 2001 Karachi 389 (PLP)

(2)??????? Whether the opponent has committed default in payment of monthly rent? , (3)??????? What should the order be? After hearing the learned counsel for the parties and going through the evidence adduced by the parties, the learned Rent Controller passed the judgment in terms as stated above. Hence this appeal was filed by the appellant/tenant. At the very outset, without touching the merits of the case, learned counsel for the appellant/tenant Mr. Badarudduja Khan raised three preliminary objections, which are reproduced below:‑ (i) ??????? That power of attorney of respondent/landlord is invalid and against the law; (ii)??????? Notice was given by the respondent/landlord to the appellant/tenant.and in the said notice, personal bona fide use is not mentioned; (iii)?????? Respondent/landlord has not examined himself. According to Mr. Badarudduja, learned counsel for appellant/tenant, these preliminary objections were raised by him before the Rent Controller but the same have not been discussed by the Rent Controller while delivering the judgment although such objections are borne out from the record. Learned counsel for appellant/tenant has argued with vehemence that power of attorney's evidence is not admissible. Since the respondent/landlord was available in Karachi and so also his wife; they are ought to have examined themselves before the Rent Controller as the power of attorney is only attested by Notary, Public and is not authenticated as envisaged under Article 95 of Qanun‑e‑Shahadat. He has also cited Article 50 of Stamps Act and section 35 of the Stamps Act. In order to elaborate his contentions on this point, learned counsel for appellant/tenant has placed reliance on PLD 1984 SC(AJ&K) 157 (165/166); 1986 CLC 363 (365‑A); 1989 MLD 2164; PLD 1997 Lah.

122. Learned counsel for appellant/tenant while dealing with the Preliminary Objection No.2, that the Notice sent by respondent/landlord to appellant/tenant in which requirement of personal need is not mentioned and according to him there has been correspondence between .the respondent/landlord and appellant/tenant right from 17‑1‑1995 to March, 1995 and in the month of April, 1995 the Rent Application was filed by the respondent/landlord. According to learned counsel for the appellant/tenant, since the requirement of personal need is not mentioned in the said Notice and subsequently the Rent Application has been filed by the respondent/landlord stating therein that he needs the premises in question for his personal bona fide use is nothing but the respondent/landlord has not come with clean hands. He has placed reliance on PLD 1997 Kar. 285; 1988 CLC 1053; 1984 CLC

645. While elaborating his contentions on Objection No.3 that that respondent/landlord has not examined himself; the learned counsel for appellant/tenant has submitted that the landlord was in Karachi, his wife was also available in Karachi, neither the respondent/landlord has examined himself nor his wife on the point of bona fide use and the case filed by respondent/landlord cannot be treated as evidence. He has placed reliance on 1997 CLC 430; 1997 CLC 363; 1984 CLC 1137. Finally, learned counsel for appellant/tenant has prayed for remand of case to the trial Court for re‑examination of these three preliminary objections, which are being raised by him and decided the matter in the light of such preliminary objections. On the other hand, Mr. Imran Ahmed, learned counsel for respondent/landlord has strongly opposed the arguments rendered by the learned counsel for appellant/tenant and has submitted that no application has been moved by the learned counsel for appellant/tenant before the trial Court impounding the power of attorney and no such plea has been taken by the learned counsel for appellant/tenant before the trial Court nor such question has been put in cross‑examination of the respondent/landlord and in this regard, he has cited section 3/33 of Stamps Act. He has also drawn my attention on Schedule 48 of the said Stamp Act. He has placed reliance on 1986 CLC 1472; 1993 CLC 2511 (251413). Learned counsel for respondent/landlord has further submitted that Notice is not mandatory and has placed reliance on 1983 CLC 1446 (1447) and PLD 1985 SC

38. Learned counsel for appellant /tenant in rebuttal has submitted that as far as the objection raised by the learned counsel for respondent/landlord that there was no application for impounding the power of attorney is concerned, it was not the job of the learned counsel for appellant/tenant to move such application before the trial Court and had he moved such application, he would have filled the lacuna on the part of learned counsel for respondent/landlord and once again he has drawn my attention to Article 95 of Qanun‑e‑Shahadat and section 35 of Stamps Act. He has further submitted in rebuttal that as far as notice is concerned, it is not necessary to send by the respondent/landlord to the appellant/tenant but since the notice has been sent, it was necessary on the part of the landlord to mention in the said Notice about the requirement of premises in question for his personal bona fide use. He has further elaborated his contention in rebuttal that the law cited by the learned counsel for respondent/landlord is distinguishable. The contentions raised by him, who laid much stress that the law cited by the learned counsel for respondent/landlord that attorney has been examined on behalf of the respondent/landlord, in this regard the learned counsel has cited law in which the landlords were abroad but in the instant case, the respondent/landlord was available in Karachi and so also his wife and according to the learned counsel for appellant/tenant, the contention of the learned counsel respondent/landlord in this regard has no substance. I have considered the arguments rendered by the learned counsel for the parties on the preliminary objections raised by the learned counsel for appellant/tenant and have perused the material available on record and have also gone through the impugned judgment passed by the learned Rent Controller. i have also examined the General Power of Attorney and affidavit‑in‑evidence of the parties and their cross?examination. The preliminary objections raised by the learned counsel for appellant/tenant admittedly borne out from the record available and the learned Rent Controller while delivering the judgment in the matter has not taken into consideration these three objections, which are being raised by the learned counsel for appellant/tenant, Whatever law has been cited by the learned counsel for appellant /tenant and the law cited by the learned counsel for respondent/landlord; be that as it may, it is quite evident that these objections have not been discussed by the learned Rent Controller therefore, I am of the considered view that it is a fit case for remand. Accordingly, this appeal is allowed and the impugned order is set aside and the case is remanded with directions to re‑examine these three objections raised by the learned counsel for appellant/tenant and decide the matter in the light of the objections and give the findings. 'Since the order is passed on the legal grounds, therefore, there will be no order as to costs. Since this Rent case was filed in 1995, the trial Court is directed to pass the appropriate orders within three months. The parties are directed to appear before the aforesaid Rent Controller on 12‑2‑2001. Office to return the record and proceedings of the case as soon as possible Q.M.H./M.A.K./A‑149/K?????????????????????????????????????????????????????????????????? Appeal allowed.