Monday, 27 July 2015

Power of Attorney must be valid for filing Ejectment Petition

PLJ 2015 Lahore 800
Present: Ibad-ur-RehmanLodhi, J.
versus
A.D.J., FAISALABAD & 2 others--Respondents
W.P. No. 1338 of 2014, decided on 27.4.2015.
----Compulsory registered--Legal significance--It is also by now a settled position that contents of power of attorney shall strictly be construed and no power or authorization is to be read into same, which is not expressly set out therein.                                                                                            [P. 802] A
Ejectment Petition--
----Unauthorized person, who was not duly and specifically authorized to file, sign verify proceed ejectment petition--Power of attorney annexed with petition as valid document--Validity--Document annexed with ejectment petition empowering a law officer of Bank, does not conform to requirements of relevant law, providing a valid document of power of attorney--Bank, if required to initiate a legal proceeding, is under legal obligation to execute a separate and distinct power of attorney authorizing any of its officer in view of resolution of Board of Directors and every such power is to be distinctly provided--While construing present document strictly that does not make it a valid document, which can be called a power of attorney.                            [P. 803] B
M/s. Malik Ali Imran and Hassan Iqbal Warraich, Advocates for Petitioner.
Mian Nisar MahmoodAdvocate for Respondent No. 3.
Date of hearing: 27.4.2015.
Order
This judgment shall dispose of the following writ petitions:--
(i)      Writ Petition No. 1338 of 2014 (Crescent Jute Products vs. A.D.J., Faisalabad & 2 others)
(ii)     Writ Petition No. 2125 of 2014 (M/s. Ittehad Chemical vs. A.D.J., Faisalabad & 2 others)
(iii)    Writ Petition No. 4211 of 2014 (Shamas Textile Mills vs. A.D.J., Faisalabad & 2 others)
as all these petitions have been filed against judgment dated 26.11.2013, passed by a learned Additional District Judge, Faisalabad.
2.  In all these matters, the ejectment petition was filed by the Habib Bank Limited, Respondent No. 3 herein.
3.  The tenant, present petitioner, in addition to other objections, objected to the maintainability of the ejectment petition on the ground that, it was filed by an unauthorized person, who was not duly and specifically authorized to file, sign, verify, proceed the ejectment petition and to appear in such particular ejectment matter on behalf of the Bank.
4.  Issue No. 2 was specifically framed reflecting such controversy, and the learned Special Judge (Rent), while giving findings on said issue, decided in favour of the tenant and held the ejectmentpetition as not competent by means of order dated 30.09.2011.
5.  The Bank preferred an appeal, which came up for hearing before a learned Additional District Judge, Faisalabad, on 26.11.2013, who by reversing the findings of the learned Special Judge (Rent), allowed the appeal and termed the power of attorney annexed with the petition as a valid document and, thus, the eviction of the tenant was ordered.
6.  The learned counsel for the petitioner, while referring the document, shown as Officer’s power of attorney submits that perusal thereof reveals that it is a cyclostyled proforma prepared at Central Office Karachi of the Bank and then circulated in all its regions and wherever it is required, the same is being used, after filling in the blanks by inserting the name of the Officer of the relevant Region, shown to have been appointed as attorney and in general terms, the powers were shown to have been extended in favour of such Officer of the Bank.
7.  The Bank in the ejectment petition has introduced itself as a company incorporated under the Companies Ordinance, 1984, but the document styled as Officer’s power of attorney has been filed without any resolution of the Board of Directors of the Bank, specifically authorizing such nominated person to represent the Bank and to use such power on behalf of the Bank. In absence of such resolution, which is a condition precedent for initiating any legal process on behalf of any legal person, the document calls Officer’s power of attorney would not meet the requirement to initiate a valid proceeding.
8.  The learned counsel for Respondent No. 3-Bank has mainly argued by highlighting the administrative problems of the Bank, to the effect that if the Bank, in every case, is required to execute a separate power of attorney providing specific powers in favour of the appointed attorney to initiate the legal proceedings, it would cause numerous difficulties and incur huge expenses.
This may be the administrative problem of the Bank, but without that, the legal requirements cannot be fulfilled. If the law requires to perform an act in a particular manner, that particular act is to be performed in that manner alone. The Bank keeping in view its stated administrative problems cannot be absolved from its legal duty.
9.  The law of the power of attorney has developed to such extent that the Hon’ble Supreme Court of Pakistan in case of Habib Bank Limited vs. Zelins Limited and another (2000 SCMR 472) has held in clear terms that, if objection was raised about the competence of the Officer of the Bank instituting the ejectment proceedings against the tenants of the Bank, burden lies upon the Bank to establish that the person instituting the ejectment proceedings was authorized by the Bank in that behalf. In case of Messrs A.M. Industrial Corporation Limited vs. Aijaz Mehmood and others (2006 SCMR 437), it was the authoritative view of the Hon’ble apex Court that the ejectment petition of petitioner-company was rightly dismissed on the sole ground that the person, who signed the ejectment petition, was not authorized by the petitioner-company through a resolution of Board of Directors nor any power of attorney was executed in his favour for institution of ejectment proceedings.
10.  Viewing from another angle, the document introduced as power of attorney is not of any legal significance, as the same lacks its registration under the Registration Act, 1908, and Stamp Act, 1899. Such power of attorney is compulsorily registerable.
11.  It is also by now a settled position that the contents of power of attorney shall strictly be construed and no power or authorization is to be read into the same, which is not expressly set out therein.

12.  The document annexed with the ejectment petition empowering a law officer of the Bank, does not conform to the requirements of relevant law, providing a valid document of power of attorney. The Bank, if required to initiate a legal proceeding, is under legal obligation to execute a separate and distinct power of attorney authorizing any of its officer in view of the resolution of the Board of Directors and every such power is to be distinctly provided. While construing the present document strictly that does not make it a valid document, which can be called a power of attorney.
13.  The findings on Issue No. 2 arrived at by the learned Special Judge (Rent) on 30.09.2011 were, thus, justified and having legal backing, which were erroneously reversed by the learned first appellate authority. The findings of the learned first appellate authority arrived at on 26.11.2013 are not sustainable, thus, the same are set-aside by restoring the findings and final order passed by the learned Special Judge (Rent).
14.  The result of above peroration is that, all these petitions are allowed, and the ejectment petitions filed by the Bank are held as filed by an incompetent person on behalf of the Bank and, thus, were not proceedable.

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