Messrs PARKE DAMS & COMPANY LIMITED Versus Messrs HABIB BANK Ltd.
In both these appeals same parties, law and similar facts are involved and, therefore, they are being decided together. The appeals have been admitted and have been disposed of after hearing the two counsel at this stage, who had consented to the disposal of the whole matter.
2. The appellants had filed two applications, one was in respect of repairs to the building in which they were living altogether in different apartments and the other' was for the purpose of restoration of water supply to the same building. The applications were signed by the Managing Director of appellant No.3 for himself and as attorney of the other appellants who are in all 16 in numbers. Different objections were taken in the two applications particularly the execution of power of attorney was denied. Issues were framed. The application was, however, decided on the basis of issue No.1 on the point whether the application is maintainable in law. The judgment of the Rent Controller is based upon the facts that the power of attorney is neither executed before any Oath Commissioner, Magistrate or Notary Public and nor has it been proved by any one of the attesting witnesses. The other issues have not been decided.
3. Mr. Khalid Latif has submitted that the view of the learned Rent Controller that the power of attorney was not proved is incorrect because the witness Amanat Hussain had stated in his statement that the other applicants had signed the power of attorney in his favour and he was not seriously cross- examined on that aspect of the case. The counsel has relied upon Powers of Attorney Act, which does not require any attestation of the power of attorney by any one. Moreover; he has pointed out that Article 95 of the Qanun‑e‑Shahadat raises a presumption in favour of execution on a power of attorney if it was executed before the Magistrate, Notary Public or Oath Commissioner and therefore, he argues that if the statement on oath of an applicant states that the power of attorney was executed in his favour then the said evidence should be believed on a question of fact whether the power of attorney had been executed by others or not.
4. The submission of Mr. Sultan, on the other hand, is that the statement of the person in whose favour the power of attorney is alleged to have been executed is of no consequence inasmuch as he is interested person in respect of the power of attorney. He asserts that at least one of the independent executants of the power of attorney or the attesting witness should have been examined because the question of fact has been raised whether the power of attorney is executed or not:
5. I find that in the circumstances of this case it has not been convincingly prove, by the appellant that the power of attorney had in fact been executed by the other appellants in favour of Amanat Hussain. Neither it was executed before a Magistrate, Oath Commissioner or Notary Public so that a presumption under Article 95 could be raised nor the same was proved by any one of the executants of the power of attorney. The evidence of Amanat Hussain in this respect was hardly of any consequence as he was the donee of the power of attorney and once, the power of attorney way challenged then the same should have been proved by some one other than the donee. The objection of the Rent Controller, therefore, that the power of attorney was not properly proved is correct.
6. Mr. Khalid Latif then took up the alternate positions. One was that the defect, if any, was merely of a technical nature and the same should have been allowed to be rectified by the applicants coming before the Court and signing the application. This submission is correct, but the same could have been allowed only if a request had been made by the applicants' counsel or any application of the applicants was made to that effect. But the same not having been done, the appellants cannot turn round and say that the Court should have suo mote allowed that opportunity to the applicants to come forward and sign the application. The second alternate submitted by Mr. Khalid was that since the application had been signed by Mr. Amanat as Managing Director of appellant No.3 as well as for the other appellants, therefore, the whole application could not have been dismissed. This submission is based upon the statement made by Mr. Amanat where he had stated that he was authorised to file the present application and in the title of the application the appellant No.3 is shown to be represented by, Mr. Amanat. A resolution of the Board of Directors of appellant No.3 has been produced to the effect that they had authorised Mr. Amanat to file suit or suits against Habib Bank Ltd. in respect of water supply, repairs to the said building. It, therefore, appears to me that this submission of the appellants' counsel is correct and, therefore, since every one of the appellants was claiming to be a tenant of a different tenement in the building, therefore, every case was separate and hence the whole application could not have been dismissed. I, therefore, allow this appeal to the extent 'that the dismissal order in respect of appellant No.3 is set aside and the case is remanded back to the Rent Controller for deciding the case of appellant No.3 on merits. These appeals are, therefore, allowed to the extent mentioned above, but they are dismissed in respect of the rest of the appellants namely, 1, 2 and 4 to 16. These appellants could however pursue, their matter separately because their cases have been dismissed on the basis of a technical defect in their case.
M.Y.H./P‑58/K Order accordingly