2009 PLP 1165 (YLR)

MUNIB AHMAD KHAN, J.--This petition has been filed against the impugned judgment dated 31-5-2003 passed by learned I ADJ, Karachi (East), whereby the order dated 31-5-2000 of learned Rent Controller has been set aside and the petitioner was directed to vacate the demised premises and hand over its peaceful vacant possession to landlord/ respondent No.3 within a period of 60 days from the date of said judgment. The factual position coming on record reflects that the ejectment application was filed on the ground of subletting and default while the issue of subletting was not pressed, the issue of default was taken up by the Rent Controller along with Ulf' '_Scucs of maintainability, he came to conclusion that the application was not maintainable nor there was any default. Learned ADJ reversed the findings by holding that the ejectment application was maintainable and the default was committed, hence this petition" Learned counsel for petitioner has firstly challenged the maintainability of rent case and has basically relied upon the case law reported as Habib Bank Limited v. Zelins Limited and another 2000 SCMR 472 and argued that the ejectment application was not maintainable as the same was filed by the bank but the same was not supported with two power of attorneys as required. He submits that power of attorney of signatory Ikramul Aziz itself shows that he could act only in association with another attorney and not in single capacity. He further submits that the designations of attorneys of two signatories, who have signed the ejectment application, have not been mentioned and that either of the signatory was not brought for cross examination while another person Abdul Razzak was presented as witness and was cross examined, who has admitted in his cross examination that no resolution of the bank was submitted to authorize filing of the case on its behalf nor any authorization of the bank to act in a single capacity was available with either of the attorney. On the point of default, learned counsel for the petitioner submits that there was no default as alleged from 1st April 1996 to November 1996 while the rent has been paid and even rent was paid twice through cash and that according to practice accumulated rent for three months, six months and nine months was received. He has pointed out certain receipts filed with the affidavit-in-evidence and that since landlord was avoiding to receive rent, therefore, the rent was sent through money order and pay order. He further submits that the landlord has also adopted this practice for filing the ejectment proceeding on default issue against several other tenants. On the other hand, learned counsel for respondent No.3 argued that the case law reported as 2000 SCMR 472 and relied upon by learned counsel for the petitioner in support of his contention is not applicable to the present circumstances of the case as the factual position is totally different. He pointed out that the ejectment application was filed with signatures of two officials of the bank while verification was done by one person and in cross examination no question in respect of the whereabouts of signatories or their identification was asked nor specific plea in the written statement in respect of the status of attorney was taken. He "argued that authority referred to above provides that there should be an attorney or resolution of a bank and in the instant case attorney from the bank was available with the signatory. He has further pointed out that person, Ikramul Aziz, who has filed the case along with another attorney is also landlord within the meaning of rent laws as he has issued receipts towards acknowledgment of rent, which receipts have been filed by the petitioner. In support of his contention, he has submitted the case law reported as 2004 SCMR 530 on the point that plea once not raised in the written statement cannot be raised subsequently. He has also relied upon the case law reported as 1998 SCMR 593 on the point that party to succeed on his own fate and subsequent development should not be beneficial to either of the party. On the point of default, learned counsel for the respondent has pointed out that rent of the premises was Rs.150 p.m. while default from April 1996 to November 1996 comes to 8 months and that the petitioner was paying rent accumulatively on his own will, therefore, the rent case was filed and that practice of accepting the accumulative rent in lump sum is not permissible in law. After hearing the arguments of learned counsel for the parties and perusal of record, which shows that the application before the Rent Controller was filed by the bank with signatories of two persons while one of them Ikramul Aziz has verified the application, subsequently another person Abdul Razzak appeared as an attorney and witness for the bank, was cross examined and has admitted that there was no resolution of bank while the attorney is effective with the association of another attorney as two attorneys have to act jointly. The issue before this court as to whether the application was maintainable or not keeping in view the case law reported as 2000 SCMR 472 in which the rule has been laid down that the banks in which the limited companies can also be included, must have some resolution of the Board of Directors to authorize its person or there should be a power of attorney. The relevant para. of said authority is as under:-- "These were cases where authority of the persons who had instituted the rent proceedings, on behalf of the bank had been specifically challenged and in such a situation burden was on the bank to prove that ejectment applications had been competently instituted. Either power of attorney (or its copy) in favour of Ibrahim Dawani and Ghulam Muhammad, who had instituted the ejectment applications ought to have been filed showing that they had the power on behalf of the bank to institute the ejectment proceedings or a resolution of the bank authorizing them to institute such proceedings produced in evidence. If this was not done, some document of the bank could have been produced showing that the Bank had authorized the filing of the ejectment applications against the respondents or had ratified the filing of the application. This was also not done and despite the findings of the Rent Controller on the maintainability of the ejectment applications having gone against the bank, in the appeals before the High Court also neither power of attorney in favour of Ibrahim Bawani and Ghulam Muhammad nor copy of any resolution of the bank was produced. Even before this Court no such power of attorney or resolution has been produced. No document of the' bank has been produced ratifying the action of Ibrahim Bawani and Ghulam Muhammad to file the ejectment applications." In the case in hand two persons have signed the ejectment application while one attorney who has verified the ejectment application has filed his attorney. In the written statement, it has only been stated that the application as framed and filed is not maintainable in law but there is no specific question in respect to authority of the persons signing and non-filing of another power of attorney and in the cross examination several questions have been asked but in respect of the identity of the persons, who have signed the application, has not been questioned otherwise the bank could have moved an application for further evidence before closure of its side in evidence. It has also come on record that Ikramul Aziz, who has signed and verified the ejectment application, was recipient of the rent and can be considered as landlord within the meaning of SRPO. It also appears from the record that rent case is pending since 1996 and 12 years have passed but there is no objection from the bank towards maintainability of the case by its officers/attorneys. In such a situation, even there is any flaw in presentation of power of attorney at the relevant time then benefit of section 196 of the Contract Act, 1872 can also be given which is as follows:-- "

196. Right of person as to acts done for him without his authority. Effect of ratification. Where acts are done by one person on behalf of another, but without his knowledge or authority, he may elect to ratify or to disown such acts. If he ratifies them, the same effects will follow as if they had been performed by his authority." The above section shows that the person on whose behalf an agent or attorney has acted then irrespective of the defect in the power the principal can ratify the act of attorney or agent. In this case there is nothing on record nor any specific question about any defect has been asked in evidence. Accordingly, I hold that the ejectment application was competently filed and appellate court was right in its approach. As far as the issue of default is concerned, perusal of record reveals that there is default in respect of 8 months but the plea of petitioner is that the rent has been paid as and when demanded through receipts and since there was a practice of acceptance of accumulative rent, therefore, rent was paid as and when was demanded and since the said respondent avoided to receive the rent hence 8 months' rent was sent. It is settled principle of law that it is the duty of a tenant to find out the landlord and make payment of rent without committing default, therefore, payment of accumulative rent cannot be considered as a proper payment. The receipts submitted, as well as the amount paid through pay order for 8 months, show that the rent was offered after the default was committed. Learned ADJ has considered this point and has answered in positive by relying several authorities. In such a situation, I do not find any reason to interfere in the impugned order referred to above and the petition has no force, which is accordingly dismissed, together with the listed application. H.B.T./11/K Petition dismissed.