ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Const. Petition No.S-735 of 2009
Const. Petition No.S-736 of 2009 &
Const. Petition No.S-737 of 2009
Date Order with signature of the Judge
Mr. Mian Mushtaq Ahmed, Advocate for Petitioners in all Petitions.
Mr. Monawwer Ghani, Advocate for Respondent No.1 in all Petitions.
Mr. Ghulam Abbas Pishori, Advocate for Respondent No.2 in Const. Petitions No.735 & 737/2009.
Mr. Abdul Qayyum Abbasi, Advocate for Respondent No.2 in Const. Petition No.736/2009.
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Through these petitions the petitioners have called in question Judgments dated 28.09.2009 passed by Vth Additional District Judge, Karachi South, in F.R.A. Nos.228 of 2008, 72 & 143 of 2009 whereby the learned Additional District while setting aside the orders of the Rent Controller dated 25.02.2009, 11.05.2009 and 29.10.2008 allowing subsequent Attorneys, namely, Qazi Syed Qaiser Noor and Syed Shah Ameen-ur-Rehman, to withdraw rent directed previous and subsequent attorneys to get the legality and proprietary of their Power of Attorneys determined from the competent Court of law.
Mr. Mian Mushtaq Ahmed, Advocate appearing for the petitioners has contended that upon the death of one Syed Muhammad Asim his properties devolved upon his following legal heirs i.e. (1) Mst. Humaira Khatoon, (2) Mst.Hasina Khatoon, (3) Mst. Sakina Khatoon, (4) Dr. Reyaz Hassan, (5) Neyaz Hussain, (6) Ejaz Hussain and (7) Syed Muhammad Aslam.
Except Ejaz Hussain all the legal heirs executed Power of Attorney in favour of the respondent No.1, who was looking after the affairs and realizing the rent of the properties left by the deceased S.M. Asim. It appears to be an admitted position that that legal heirs cited at Sr. Nos.1&2 died on 14.02.2006 and 30.06.2006 respectively, whereas legal heirs cited at Sr. Nos.3&4 revoked General Power of Attorney granted in favour of the respondent No.1 vide Revocation Deed dated 21.07.2006 placed on record. Likewise, legal heirs cited at Sr. Nos.5&7 also revoked General Power of Attorney granted in favour of the respondent No.1 by cancellation notice dated 10.10.2007 and 24.10.2007 respectively. Legal heir cited at Sr. No.6 has never granted any General Power of Attorney in favour of the respondent No.1.
It is the case of the petitioner that after revoking General Power of Attorney granted in favour of the respondent No.1 all the legal heirs of Late S.M. Asim including descendant of the deceased legal heirs cited at Sr. Nos.1&2 above, had executed General Power of Attorney in favour of the petitioner No.7(i)&(ii) viz. Qazi Syed Qaiser Noor and Syed Shah Ammen-ur-Rehman. Mr. Mushtaq has placed on record a notice dated 24.05.2008 issued by Mr. Monawwer Ghani on behalf of Petitioners affirming this position and demanding rent from the Respondent No.2. In the circumstances, it was contended by the learned counsel that the impugned order whereby order in Rent Case No.01/2008, 1391/2006 and 499/2008 (allowing the newly appointed Attorneys of the petitioners to withdraw the rent and dismissing one of the ejectment applications filed by the previous attorney against one of the tenants on the ground to have been filed on behalf of a dead person) were set aside by directing to get their Attorneys adjudicated from the competent Court of Law cannot sustain.
On the other hand, Mr. Monawwer Ghani, Advocate appearing on behalf of the Respondent No.1 has contended that no doubt, the Power of Attorney granted by the legal heirs of Late S.M. Asim in favour of the respondent No.1 stands revoked, but the respondent No.1 being son of one of the legal heir is entitled to share in the properties of late deceased S.M. Asim.
In rebuttal, Mr. Mian Mushtaq Ahmed has contended that since the respondent No.1 is the son of Mst. Zubaida Khatoon, predeceased sister of Late S.M. Asim, he falls in the class of Distant Kindred and such Kindred only inherits if there be no sharer or Residuaries and since the petitioners being the legal heirs/sharers, therefore, the respondent No.1 does not have any entitlement over the properties of Late S.M. Asim.
Mr. Ghulam Abbas Pishori, Advocate appearing for the respondent No.2 in Const. Petitions No.735 and 737 of 2009 and Mr. Abdul Qayyum Abbasi, Advocate appearing on behalf of the respondent No.2 in Const. Petition No.736/2009 have contended that the respondent No.2 being tenants are depositing rent with the Rent Controller which can be withdrawn in accordance with the directions of this Court.
I have heard the learned counsel for respective parties and perused the record.
Since it appears to be an admitted position that the Power of Attorney granted in favour of the respondent No.1 by the legal heirs of Late S.M. Asim stands revoked and the issue as to whether the Respondent No.1 can be held a legal heir of deceased S.M. Asim or not, is pending adjudication before the Court of competent jurisdiction, therefore, neither there is any dispute that the petitioner No.7(i)&(ii) are not the Attorneys of the Petitioners nor there is any need for them to get Power of Attorney adjudicated from the competent Court of law. As to the contention of Mr. Monawwer Ghani to the effect that the respondent No.1 has claimed as legal heir, in my opinion such claim cannot be adjudicated from the proceedings emanating from the order of the Rent Controller.
In the circumstances, these petitions are allowed. The impugned Judgments are set aside and the orders of VIth Rent Controller, Karachi South in M.R.C. No.01/2008 dated 25.02.2009, MRC No. 1391/2006 dated 11.05.2009 and Rent Case No. 499/2008 dated 29.10.2008 are restored.
JUDGE