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Petitioner: STANDARD CHARTERED BANK (PAKISTAN) LTD.and others VS Respondent: ADDITIONAL JUDGMENT
Court Name: Sindh High Court Judge(s): Hassan Feroze Title:STANDARD CHARTERED BANK (PAKISTAN) LTD.and others vs ADDITIONAL
JUDGMENT
Reported As: 2016 YLR 1750 Result: Case remanded Judgment JUDGMENT HASSAN FEROZ, J.---By this common judgment, I. Intend to dispose of above petitions which have been heard together pertaining to separate tenements all situated in the building known as 'Standard Chartered Bank Chambers, Talpur Road, Karachi'. ' It has been averred in the above petition(s) that M/s. Standard Chartered Bank herein petitioner is a locally incorporated bank duly, existing under the Companies Ordinance-1984 with its registered office at Standard Chartered Bank Building, 1.1. Chundrigar Road, Karachi, who is petitioner in relation to the captioned constitutional petitions which have been preferred against the Judgments passed by learrned VIlth Additional District Judge Karachi South in First Rent Appeal(s) and the orders passed by the Rent Controller impugned therein, whereas the said rent appeals were dismissed, consequently, instant constitution petition (s) have been preferred inter-alia on the facts and grounds taken therein with the following prayer:-- "(i) Declare that the impugned orders of the respondent No, 1 dated February 1, 2011 read together with the impugned order of the respondent No, 2 dated August 22, 2009 are without jurisdiction, void and ab initio without legal effect and lawful authority and liable to be quashed and set-aside as a nullity in the eyes of the law; (ii) Declare that the ejectment proceedings brought by the petitioner be restored and remanded back to the respondent No, 2 for disposal of the case on the merits and for early decision due to their personal bona fide need and requirement after allowing substitution by the Petitioner with its new attorney as well as after recording of evidence and complying with due process; (iii) Early decision of the case'
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(iv) Cost of the petition; (v) Any other relief to which the petitioner may be entitled in the circumstances of the case'. ' Succinct facts leading to the filing of the captioned constitutional petitions are that the Petitioner is a Banking Company who is owner and landlord of three storeyed (ground plus two floors) building known as 'Standard Chartered Bank Chambers', constructed on plot bearing Survey No, 4, Survey Sheet No, S.R. 2 at the junction of Chundrigar Road and Talpur Road, Karachi (here-in-after referred-to-as the building), wherein tenements are occupied by the Respondents iu C.P. No, S- 353/11, Messrs Taxcot Inrernational, Room No, 42, 2nd floor, in C.P. No, S-354/11, Messrs Siddique and Said (Pvt.) Ltd., Room No, 04, 1st floor, Messrs United Carpets Ltd, Room No, 04, 1st floor, Messrs United Carpets Ltd., Room No, 24, 2nd floor, Messrs Siddique and Said (Pvt.) Ltd., Room No, 028, 1st floor, Rahbar, Room No, 18, 2nd floor, Messrs Atiq and Zia, Room No, 19, 2nd floor, Messrs Atiq and Zia, Room No, 20, 2nd floor, Naurauz Iftikhar Ahmed, Room No, 21, 2nd floor, in C.P. No, S-363/ 2011, Messrs Express Services, Room No, 23, 2nd floor, in C.P. No, S-364/ 2011, Messrs United Carpets Limited, Room No, 26, 2nd floor, in C. P. No, S-365/2011, Messrs United Carpets Limited, Room No, 25 2nd floor, in C.P. No, S-366/2011, Banarus House, Room No, 41, 2nd floor in C.P. No, S-367/2011 Messrs United Liner Agencies Room No, 05, 1st floor, in C.P. No, S-368/2011, Messrs United Liner Agencies, Room No, 06, 1st floor, in C.P. No, S-372/2011 S.M. Mir, Room No, 40, 1st floor, in C.P. No, S-373/2011 Messrs A.F. Containers, Room' No, 14, 1st floor, in C. P. No, S-374/2011 Messrs Star Agency, Room No,33, 1st floor in C.P. No, S-375/ 2011 Messrs Gale Lab Room No, 38, 1st floor in C.P. No, S-376/2011, Messrs Siddique and Said (Pvt.) Ltd., Room No,7, 1st floor, in C.P. No, S-377/2011 Messrs Siddique and Said (Pvt.) Ltd. Room No, 8, 1st floor, in C.P. No, S-378/2011, Messrs Agha Yousaf and Sons, Room No, 09, 1st floor, in C.P. No, S-379/2011 Messrs Raizeda (Pvt.) Ltd., Ground floor, in C.P. No, S-380/2011 S.M. Naqi, Godown, Ground floor, in C.P. No, S-381/2011 Messrs Siddique and Said (Pvt.) Ltd., Room No, 01, 1st floor, and Messrs United Carpets Ltd., Room No, 1, 1st floor, in C.P. No, S-382/2011 Adamali Mohammadali Lotia, Room No, 16, 2nd floor, in C.P. No, S-383/2011 Adamali Mohammadali Lotia, Room No, 17, 2nd floor, in C.P. No, S- 384/2011 Messrs National Engineering Co. (Pvt.) Ltd., Room No, 11, 1st floor, in C. P. No, S-385/2011 Messrs United Liner Agencies, Room No, 12, 1st floor, in C.P. No, S-386/2011 Messrs Express Services, Room No, 22, 2nd floor and in C.P. No, S-387/2011 Messrs Oriental's, Room No, 29, 2nd floor, Standard Chartered Bank Chambers, Talpur Road, Karachi. The petitioner bank filed eviction application against their tenants, seeking ejectment of the tenants/Respondents from the said premises due to bona fide personal need. The petitioner filed the said eviction applications through their attorney Mr. Najib Afsar son of Hafeezullah Khan Afsar, praying therein as under:-- a. This Honourable Court may be pleased to pass orders for ejectment of the respondent from the demised premises (including ejectment of any person occupy the same on his behalf or through him) and for delivery of vacant possession of the same to the applicant bank. b. Order the respondent to supply to the applicant copies of all utility bills showing settlement of the same up to the date of vacation of the demised premises. c. Cost of this application may be awarded. d. Any other relief that this Honourable Court finds proper may also kindly be granted. The Respondents/tenants after being served with the notice of the rent application made appearance before the learned Rent Controller and filed their written statements/written reply wherein amongst others following preliminary Objections were raised:-- i. That the instant application is not maintainable under the law as the same has been filed for personal use under section 15(2) of S.R.P.O. 1979 whereas the said provision of law is not applicable on buildings rented-out for commercial purposes.
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(ii) That the instant application is not maintainable in-as much as the opponent is not a statutory tenant as no tenancy agreement exists or has been executed under section 5 of S.R.P.O. 1979 between the applicant and the opponent. (iii) That the rent application is not maintainable as the same was filed by an unauthorized person. (iv) That the applicant approached the Honourable Court with unclean hand. (v) That no cause of action has accrued to the applicant as the opponent has not infringed any right of the applicant and the contents of the rent application also do not Mow any cause of action having accrued to the applicant'. ' In para-wise reply to the rent application being filed by 'the Petitioner, the aforesaid tenants/Respondents have resisted vehemently, however, it was the stand taken on behalf of the tpnants/Respondents the that they are tenants of the petitioner since long and duly rent was being paid. ' The contention of the petitioner in nutshell is that order dated 22.08.2009 whereby the application under section 151, C.P.C. Moved by the Petitioner/Applicant was disposed of was an interlocutory / interim order and being not a final order within the meaning of section 21(1) S.R.P.O. 1979 as the ejectment application was moved under section 15 S.R.P.O. 1979, at the very outset it was argued that whether the said order dated 22.8.2009 was appealable or not which has been challenged before this court by invoking the extra-ordinary constitution jurisdiction as apparently there was no decision on merits with regard to the ejectment application since the rent case was not finally, concluded by way of inquiry/trial and the stage of the rent application was at the stage of cross- examination of the attorney of the Petitioner /Applicant under cross-examination and his further cross-examination was reserved with the conient of both the learned counsel as mentioned in the petitions. ' Be that it may, at this stage it is an admitted position that the Petitioner/ Applicant proceeded to file the First Rent Appeal which were admitted without taking into consideration as to above position, the rent appeal was opposed on the preliminary objection and the rent appeal was dismissed by learned appellate court of Vllth Additional District Judge Karachi South through impugned judgment dated 01.02.2011 the operative paragraph of the said judgment reads as under:- 'Perusal of record further reveals that the rent case was filed on the basis of powers of attorney alleged to be executed by Badar Kazmi in favour of Mr. Najib Afsar after the resolution dated 08.06.2005 for which mentioned in the Power of Attorney dated 21.09.2005 and then rent case was filed but that resolution was also not filed on the court record. Subsequent resolution dated 02.11.2006 is on record wherein the Badar Kazmi was delegated powers and delegates the same on 21.09.2005 in the Power of Attorney which is on record. It amounts to some confusing question whether the power was delegated to Mr. Najib Afsar before passing the resolution because the resolution dated 08.06.2005 if any was not come on record. The burden fell upon the appellant to establish that the person initiating ejectment application was authorized by the bank in that behalf. In this respect I placed my reliance on the case law reported in 2000 SCMR p.472 and PLD SC p.550(b). ' In view of above discussions and reasons, it is crystal clear that the learned Rent Controller have rightly passed the order as such I am of the opinion that the impugned order need no interference. I have also considered the case law cited by the learned counsel for appellant which is distinguishable with the facts and circumstances of the case in hand. With these observations, the appeal of appellant is dismissed with no order as to costs'. ' The above impugned judgment dated 01.02.2011 of the learned appellate court coupled with the order dated 22.08.2009 passed by the learned Rent Controller have been assailed through the captioned constitutional petitions wherein the Petitioner, inter alia has agitated that the impugned
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orders passed by the Respondents Nos. 1 and 2 are ex-facie in violation of the principles of natural justice and law that no person who is prejudicial affected by an order of any judicial officer without being provided with cogent reasoning and justifications for the summary dismissal of the ejectment proceedings. It has been contended by the learned counsel for the petitioner that the impugned order passed by the 'Respondent No, 1 if read together with the order. As passed by the Respondent No, 2, being in contravention of section 24-A of the General Clauses Act, 1897 have no legal effect and are void ab-initio and that the Respondents Nos. 1 and 2 by not applying judicial mind to the facts and circumstances of the case as well as without having regard to the relevant law and constitutional provisions, acted in excess of jurisdiction and omit to exercise jurisdiction vested in it without any just cause and the Respondents Nos. 1 and 2 erred in holding that where an application for substitution of the power of Attorney of the petitioner was made under section 151, C.P.C.-1908, the entire ejectment proceedings were dismissed by the trial court in breach of relevant provision of law and natural justice, the two courts below have failed to appreciate that once an ejectment application under the provisions of Sindh Rented Premises Ordinance, 1979 had been filed by the petitioner there was no basis for summarily rejecting the said ejectment application on the technical basis wherein the courts below should have allowed the Petitioner to adduce the evidence on the merits of the case hence the dismissal of ejectment application summarily is in contravention of rules of natural justice and relevant provisions of the Articles of Constitution of Pakistan, 1973 and the two courts below have failed to appreciate that the Petitioner being body corporate have perpetual succession and, therefore, may during the pendency of any proceedings and at any time substitute the person or persons so authorized to act on their behalf and/or to file affidavits or legal documents and that the conclusion so reached at by the two courts below is on unsound proposition of law that the name of the person acting under the Power of Attorney has to be mentioned in the title where the party concerned is a corporate entity having perpetual succession and that the impugned orders passed by the two courts below are not the speaking orders and same in no way deals with the merits of the case and that the two courts belbw have failed to appreciate that the provision of a Board Resolution in favour of an attorney holder was discretionary and not a mandatory requirement of law and the two Courts below have erred in law and violated the mandatory provisions of law of section 19 S.R.P.O. 1979 which is a special law, so same overrides any provision to the contrary in any general law and that the summarily dismissal of the rent application by the learned Rent Controller and so also the illegality committed by the appellate forum in judging the controversy has resulted in miscarriage of justice and denied fail' trial and due process which is in violation of Articles 4, 10a, 18, 23, 24 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 and that the dismissal of application under section 151, C.P.C. Moved for substitution of Power of Attorney as well as dismissal of the original ejectment application filed by the Petitioner amounts to acting on flimsy ground which have no legs to stand in view of the decision of the Honourable Superior Courts and so according to petitioner the change of attorney is neither irregularity nor illegality and even the alleged defective signing of Power of Attorney is not fatal or illegal and similarly according to him the company being a juristic entity can be represented and simple description of the company is sufficient and therefore in the interest of justice set-aside the impugned orders by allowing the said application under section 151, C.P.C. To substitute the attorney and the learned counsel in support of his submissions has referred to the decisions as appeared in PLD 1973 Note p.33 (Lahore), 2001 CLC p.1065, 2003 CLD p.1754, 1984 CLC p.2369, PLD 1995 SC p.406, 2009 CLD p.234, 2003 YLR P.1195, 2004 CLC p.830, 2004 YLR P.1161, 2010 CLC p.1590, 2009 YLR P.1165, 2010 CLD 254 Lahore & p.327 Karachi, 2010 PCr.LI Lahore p.997, 2010 MLD p.1656, 2010 YLR Karachi p.123 and 2014 MLD Sindh p. 1.
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' On the other hand on behalf of the Respondents/tenants, objections have been filed by raising the following preliminary objections:-- a. That the Petitioner is not the owner of the building and therefore they cannot initiate any ejectment proceedings for personal bona fide need and therefore they have no legal right to challenge an order passed by a court of law by filing the above constitutional petition. b. That the petition is not maintainable as the impugned order dated 01.02.2011, was passed by the Respondent No, I, due to the reason that the appeal was not filed by a person without having any authority to file the appeal and therefore, the said wrong of the Petitioner cannot be cured through the above constitutional petition. c. That the above petition also not maintainable on the following two reasons:- (i) No ejectment proceedings can be initiated against a contractual tenant under S.R.P.O. 1979. (ii) No ejectment proceedings can be initiated under section 15 of S.R.P.O. 1979 for personal bona fide need of a company. ' Apart from above preliminary objections on behalf of the Respondents/ tenants, it was also agitated in shape of written objections that the impugned orders passed by the learned Courts below are just, proper and legal and same calls for no interference 'and that while filing the written reply the Respondents/tenants in Rent Case (s) had raised various legal objections whereby the very maintainability of the rent applications were seriously disputed as that the learned Rent Controller was justified in dismissing the rent applications and that the above named tenants at the time of filing written reply, raised various legal objections including that the ejectment application was filed by an unauthorized person but initially the Respondent No, 2, did not consider any of the objections but when nobody appeared on behalf of the Petitioner before the Respondent No, 2 for cross-examination and when appeared, the Petitioner filed an application for change of attorney but in spite of filing application for change of attorney, nobody was appearing for cross- examination and therefore, the Respondent No, 2, rightly dismissed the application for change of attorney as well as the main Rent Application and that the evidence of the attorney of the Petitioner was started from 5th April, 2007 and he was partly cross-examined by the counsel of the Respondents/tenants. On 17.04.2007, at the request of the attorney of Petitioner the matter was adjourned for further cross-examination of the Petitioner but thereafter the attorney of the Petitioner never appeared before the learned Rent Controller. Thereafter, a lapse of almost 17 months from the last cross-examination i.e, 17.04.2007, an application was filed by the Petitioner for the change of attorney under section 151, C.P.C. Which was opposed by the Respondents/tenants, whereas the order was passed by the Respondent No, 2 on 22.08.2009, so more or less three years' time period were consumed from the date of filing of the rent application, and nobody was appearing on their behalf, therefore, the Petitioner cannot take advantage of their disappearance from the court by saying that the Respondent No, 2 dismissed their main application after a lapse of three years. Respondents/tenants denied that Respondent No, 2 had no right under S.R.P.O. 1979 to dismiss the rent application summarily and according to Respondents/tenants the Respondent No, 2 was empowered to dismiss a case summarily under section 19 S.R.P.O. 1979 therefore, the dismissal of the main rent application / case of the Petitioner was within the four corners of law and the Rent Controller has wide discretion for conducting the proceedings before him and resort to either the principles of C.P.C. To apply the principles of justice and equity or exercise his powers under section 20 of West Pakistan General Clauses Act-1956, and the attorney dated 08.06.2005 was never filed by the Petitioner before the learned Rent Controller whereas the case was filed before the learned Rent Controller on the basis of a Power of Attorney which was issued on 07.06.2005 in favour of Mr. Badar Kazmi by the bank but the said Power of Attorney does not show as to who had executed the said Power of Attorney and no where it is mentioned that who were the signatories of that Power of Attorney and how they got powers to execute Power of Attorney in
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favour of Mr. Badar Kazmi. The Memorandum and Article of Association was not filed by the Petitioner along with the rent case and now they have filed the copy of Memorandum and Article of Association but half of their page are missing and clause 12 of the Power of Attorney dated 07.06.2005 does not empower the attorney to file any rent case for the ejectment of the aforesaid tenants and if he had not been authorized to initiate any rent case under the said clause then he was not authorized to appoint his subordinate attorney to initiate rent case on behalf of the bank, so the learned Rent Controller was justified to dismiss the rent application on such analogy. The application for change of attorney under section 151, C.P.C. Was filed and verified by one Mr. Bahadur Sher son of Munawar Khan vide Power of Attorney dated nil but the document shows that it was attested on 04.08.2008, therefore, the said date should be the date of Power of Attorney, though in the last paragraph of the Power of Attorney it is mentioned that the Power of Attorney shall come into effect from 25th July, 2008 and the said Power of Attorney was executed in favour of Mr. Bahadur Sher Khan on 02.11.2006 for a period of two years from the date of issue which expired on 01.11.2008 then the power of his subordinate attorney also expired on the said date and in the written reply/written statement various preliminary objections were raised and it was agitated that the captioned constitutional petitions merits no consideration and liable to be dismissed. ' In the brief note of arguments filed by the learned counsel appearing for Respondents/tenants similar contentions were agitated and the learned counsel in support of their submissions have relied upon the reported decisions as appeared in PLD 1966 SC p.684, 2000 SCMR p.472, 2001 SCMR p.1700, 2003, 2006 SCMR p.43'7, PLD 1987 Karachi p.16, PLD 1989 Peshawar p.185, 1995 CLC p.1541, PLD 2003 Karachi p.156, PLD 2003 Lahore p.522, PLD 2005 Kar. 478 and the learned counsel finally prayed for dismissal of the captioned constitutional petitions as according to them the impugned orders / impugned judgments passed by the two courts below are based on proper appreciation of law and the legal propositions involved. ' I have at length heard.Arguments of the learned counsel appearing for the respective parties and have taken the guidance from the reported decisions, so also I have consulted the law on the subject. ' Before proceeding further I would like to refer briefly to the provisions contained in the Sindh Rented Premises Ordinance-1979 which certainly is a special law as it is An Ordinance to make effective provisions for regularization of relation between landlords and tenants and protect their interests in respect of rented premises within urban area', which received the assent of the Government of Sindh on 5th day of July, 1977. In the decision as appeared in the case of Rafiqa Bequm v. Mahmooda Wahidina, reported in PLD 1987 Karachi p. 287 it was laid down that "The Sindh Rented Premises Ordinance, 1979 is a piece of social legislation aimed of easing the problems of accommodation, protecting the tenants from evictions inspired by profit hunting motives and providing certain safeguards for the tenants and saving them from great expense, inconvenience and trouble. However, the Ordinance does not completely overlook the interest of the landlord and has under certain conditions granted the landlord to seek eviction on proof of grounds mentioned in Section 15 of the Ordinance. Thus, the Ordinance appears to have struck a just balance between the requirements in good faith on the one hand and great inconvenience and trouble to the tenants on the other'. ' In the reported decision in the case of Pakistan Burmah Shell v. Khalil Ahmed, appeared in 1988 MLD p.210'It was laid down that 'Main object of Ordinance as to make effective provisions for regulation of relations between landlords and tenants and protect their interests in respect of rented premises and not to confer any new right of eviction on landlords. Ordinance presupposes existence of landlord's right to immediate possession, but his such right would be limited by provisions of Section 15 of Ordinance. Landlord, though, has got a right to evict tenant under
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general law, yet he cannot get possession of premises unless one of the other conditions specified in Section 15 of Ordinance are complied-with'. ' I have in my view Section 2 (a) S.R.P.O. 1979 which envisages that "building" means any building or part, together with all fittings and fixtures therein, if any, and includes any garden, garage, out- house and open space attached or appurtenant thereto. Here I would like to mention that on behalf of the Respondents/tenants it has been agitated that the suoject tenements is a commercial building and the ejectment application is not maintainable and to my view such stand taken on behalf of the Respondents/tenants have no force of law as the "definition of building" appearing in Section 2(a) S.R.P.O. 1979 has a wide scope and under the scheme of law it is settled by now that even the `godown-cum-workshop' and 'open space' would fall within definition of 'building' in terms of such section, therefore, the Rent Controller had jurisdiction to entertain and decide application for ejectment of tenants from such premises and in this context I may refer to the case of Oosman Brothers-v." Muhammad Aslam and 3 others as appeared in 1999 CLC p.2012. ' Here I would like to observe that in the written statement / written 'reply filed on behalf of the Respondents/tenants though they have resisted vehemently. To the rent application but in all fairness it has been admitted that they are tenants of the petitioner since long…
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