BABOO KHAN vs MAQBOOL AHMED

' Respondent Magbool Ahmed had filed an ejectment application through his attorney Niaz Ahmed Elmi against Baboo Khan in the Court of Second Senior Civil Judge and Rent Controller, Hyderabad in respect of Shop No,B-D situated in Plot No,194, Magbool Market, Unit No,11, Latifabad, Hyderabad.

The plea of the respondent was that the appellant had failed to pay rent for the shop for several years. The rate of rent was Rs,40 per month. It was alleged that upto the date of filing of the petition the arrears due against the appellant were to the extent of Rs,1,320.

2. In his written statement the appellant did not deny that there were arrears as alleged by the landlord, but his plea was that in spite of best efforts he could not trace the respondent or his attorney. In para. 14 of his written statement the appellant stated that "since the applicant was out of Pakistan, the opponent tried his level best to search out, but none was available and thereafter no proper collection of rent was made from the opponent."

3. The appellant also contested the title of the attorney Niaz Ahmed Elmi to file ejectment application on behalf of Magbool Ahmed.

4. After recording evidence of the parties the learned Rent Controller held that the appellant was a habitual defaulter, hence he was liable to be ejected. Consequently by his judgment dated 17th February, 1982 the ejectment application of the respondent was allowed and the appellant was directed to hand over possession of the disputed premises to the respondent within three months.

The appellant has now challenged the above order by this appeal.

5. So far as the default in paying rent to the extent of Rs,1,320 is concerned, it is not denied. At the rate of Rs, 40 per month this default will be for 32 months. The plea of the appellant that could not find out the respondent in spite of his best efforts, is belied by the statement of Niaz Ahmed Elmi, who has stated in his affidavit that he had issued notice to the appellant and also satisfied the appellant about his being authorised agent of Maqbool Ahmed to recover rent and that in spite of this the appellant did not pay rent. Even if the appellant is believed when he says that he could not trace out the whereabouts of the landlord, he cannot be asolved of his responsibility to pay the rent because in such case he was liable to deposit the rent with the rent Controller. However, the finding of the trial Court on the point of default has not been seriously challenged by Mr. Arshad Noor Khan learned counsel for the appellant.

6. Main emphasis of Mr. Arshad Noor Khan has been on the plea that the power of attorney produced by the respondent is not in order and that it does not authorise the attorney to file and verify ejectment application. A photostat copy of special power of attorney has been produced by Niaz Ahmed Elmi as Exh.32/A. By this document the landlord Maqbool Ahmed has authorised Niaz Ahmed Elmi, inter alia, (1) to obtain rent of the shop from tenants on my behalf, and (2) to take legal action regarding any proceedings in connection with the above shop on my behalf. The power of attorney clearly authorises the atttorney Niaz Ahmed Elami to take legal action against the tenant in respect of the shop in question. Filing of ejectment application and verification of the same would also fail within the authority of the attorney in pursuance of clause (2) quoted above.

Hence no fault can be found with the power of attorney or with the entitlement of the attorney to file ejectment application on behalf of the landlord Maqbool Ahmed.

7. It is also argued by Mr. Arshad Noor Khan that in spite of specific plea having been taken in the written statement regarding non-maintainability of the ejectment application, neither any issue was framed by the court on this point nor the appellant was afforded opportunity of hearing on this plea. This argument is without any substance. The maintainability of the ejectment application was challenged on the basis of alleged defect in the power of attorney. As shown above the power of attorney was quite in order and therefore, the plea of non-maintainability of ejectment application was on the face of it not available to the appellant. It is not necessary for the Rent Controller to frame issue in respect of each and every plea raised in the pleadings. Issues are to be framed in respect of pleas which appear from the pleadings to have some substance. If a frivolous plea is raised by a defendant in his written statement, the Court shall not be bound to frame any issue in respect of it.

8. It may be stated that an application was also moved by the appellant to frame an issue on the point that the ejectment application was not maintainable because the attorney was not properly authorised by the power of attorney to file such an application. The learned Rent Controller had heard the appellant's counsel on the above application and by an elaborate order dismissed the application holding that the power of attorney properly authorised Niaz Ahmed Elmi to file ejectment Application. It, therefore, cannot be argued that the appellant was not afforded an opportunity of hearing on the legal issue as to non- maintainability of the ejectment application.

' For the above reasons the appeal is dismissed with cost. The appellant is, however, granted four months time to vacate the shop provided he continues to pay or deposit rent during this period.