MALIK CHAND Vs. ZUBEDA BEGUM

JUDGEMENT

(1.) This second Appeal under section 39 of She Delhi Rent Control Act, 1958, hereinafter called "the Act", rates' some interesting question as to the interpretation of the provisions of Section 85 of the Evidence Act and in particular the question whether the presumption provided under the said Section could be available where the document in question had been attested by aforeign authority and as to the interpretation of the provisions of the Enemy Property Act, 1968, hereinafter called "the Enemy Act", but, unfortunately for the appelant, must be dismissed on the ground that it is barred by time. It has been filed in the following circumstances.

(2.) On October 3, 1960. Smt. Zubeda Begum. Smt. Sugra Begum. Smt. Zohra Begum, Smt. Nasira Begum for self and on behalf of her minor sons Abid Ali, Wahid Ali and Liak All and her daughter Suraiya Begum filed an application for the eviction of respondent from property bearing No. 3705-6, Ward VII, Shah Ganj. Delhi under Section 14 of the Act, through their purported general attorney Dr. Amin-ul-haq. on the ground that the respondent, who was in occupation of the premises in dispute was a tenant at a monthly rental of Rs. 33.19. had made default in the payment of arrears of rent since December 1, 1955 in spite of notice of demand and, therefore, had become liable for ejectment from the said premises. The application was signed and verified by the said general attorney on behalf of all the petitioners. Besides the mention of the general attorney in the title of the application and on the foot of the application at the place under the signatures and under the verification, there was no averment in the petition itself that the general attorney had been duly authorised by all or any of the petitioners to file the present petition nor were any particulars set out of any instrument by which the appointment had been made. The petition was contested on behalf of the respondent, inter alia, on the alegations that (here was no relationship of landlord and tenant bei.wccn the partics: that the petitioners had no locus stand! to file the petition as they had "shifted" to Karachi in 1947 and had become evacuees; that the property in dispute was an evacuee property; that no notice under Section 14 of the Act. had been served on the respondent: that some of the petitioners were minors and there was no allegation that their next friend had no interest adverse to them; that the power of attorney in favour of the general attorney was not attested by the High Commissioner for India in Pakistan and was. therefore. defective; that the agreed rent was Rs. 32.19 p.m.: and that the rcspondent was entitled to certain adjustment on account of the amounts spent by them, details of which were given in the reply. On May 22. 1962, an application was made under Order XXII Rule 2 of the Code of Civil Procedure on behalf of Abid Ali, Wahid Ali, Liak Ali and Suraiya Begum to the effect that Smt. Nasira Begum had died and these applicants, who were already on the records of the proceedings be treated as her legal reprensentatives. On September 17, 1962, Abid All and Liak Ali made an application under order XXXII Rule 12 and Section 151 of the Code of Civil Procedure praying that. as they had become major and had elected to proceed with the petition, the cause title of the Petition be amended accordingly. This application was moved through Shri Ram Piara Lal, Advocate and a power of attorney executed by them in his favour was enclosed with the application. Similar application was also made by Wahid Ali through the said Advocate and the power of attorney in favour of the counsel was also attached with the application. By an order made on March 27, 1963, the Addl. Rent Controller, who was then seized of the matter, allowed all these applications and an amended petition was filed pursuant to this prder. In the cause list of the amended petition the petitioners were described as "Zubeda Begum and others" but the opening sheet attached to the petition described the petitioners as suing through the general attorney, Amin-ul-haq. The amended petition was, however, signed by Liak Ali and two other petitioners while Amil-ul-haq signed as general attorney of Zubeda Begum, Zohra Begum, Sugra Begum and as next friend and guardian of Suraiya Begum. The verification of the amended petition was, however, unsigned. The petition was also signed by Shri Ram Piara Lal Advocate. In his reply to the amended portion, various pleas raised in the earlier reply were reiterated by the respondent and it was further contended that there was no power of attorney in favour of Amin-ul-haq on behalf of Abid Aii, Wahid Aii and Liak Ah and that the power of attorney on behalt of Smt. Zubeda Begum, Sugra Begum and Zohra Begum was not valid and related only to property No. 3705, It was further alleged that the said power of attorney had not been attested by the High Commissioner of India in Pakistan and was therefore, defective. On October 25, 196". the respondent was allowed to amend his reply so as to enable the respondent to raise a plea that the petition was incompetent for want of notice under Section 106 of the Transfer of Property Act and in the amended reply, the respondent alleged, infer alia, that there was no power of attorney in favour of Amin-ul-haq on behalf of Abid Ali, Wahid Ali and Liak Aii and there was no valid power of attorney in favour of the attorney by the three ladies mentioned above and that the power of attorney related only to house No. 3705.

(3.) Before the Addl. Rent Controller, two preliminary objections were raised, namely, (1) power of attorney given in favour of Aminul-haq was not valid and that there was no proper petition (2) there were two separate tenancies: (a) in respect of property No. 3705 and (b) in respect of property No. 3706 == 3707 but the petition had been brought for the ejectment of the respondent from property No. 3705 and property No. 3706.