PLJ
2011 Peshawar 27
Present:
Zia-ur-Rehman Khan, J.
NADIR
KHAN--Petitioner
versus
IMAM
GUL--Respondent
C.R.
No. 901 of 2005, decided on 9.8.2010.
N.W.F.P.
Pre-emption Act, 1987 (X of 1987)--
----S.
13--Superior rights of pre-emption was entitled to its possession through
exercise of his valid right of pre-emption--Got knowledge about sale on
telephone--Declared his intention to pre-empt the suit land--Notice of Talb-e-Ishhad through counsel was scribed, attested by
witnesses--Question of--Whether first formality of Talb-e-Muwathibat
had been observed in accordance with the requirements of S. 13, of Act,
1987--Determination--Respondent had totally omitted to mention in his
examination in chief the necessary details of time, date, place and witnesses
of Talb-e-Muwathibat--Simply mentioned the name of
informer--Attested witnesses of the notice of Talb-e-Ishhad
were totally silent about their presence with the informer at PCO from where
respondent was telephonically informed about the sale--Not a uttered single
word about observance of the formality of Talb-e-Muwathibat
nor had given the requisite details in their examination-in-chief--Held: Mere
mention of these details in the notice Talb-e-Ishhad
and plaint were highly insufficient and pre-emptor had to prove in evidence the
requisite details of making Talb-e-Muwathibat,
mentioned in plaint--High Court was left with no alternative but to accept the
instant revision petition. [Pp.
31, 32 & 33] A, B & I
Right
of Pre-emption--
----Question
of--Whether respondent had succeeded to observe the formality of first talb, which was serving as a foundation for a suit for
pre-emption--Validity--In absence of non-observance of first talab, the factum and performance
of Talb-e-Ishhad was inconsequential--Right of
pre-emption was feeble and piratical right. [P.
32] C
N.W.F.P.
Pre-emption Act, 1987 (X of 1987)--
----S.
13--Superior right of pre-emption--In absence of any wakalat
nama and power of attorney at time of scribing the
notice--No legal value was also not without force--Notice of talbs--Validity--Notice Talb-e-Ishhad
was scribed which was purportedly given by counsel on behalf of the pre-emptor
but at that time there was no wakalat nama on his behalf in favour of
the counsel--Neither the counsel was authorized to scribe the notice on his
behalf nor the attorney was delegated with any power to instruct the counsel
for doing so. [P. 32] D & E
Wakalat Nama--
----Contents
of wakalat nama
and special power of attorney--Acts of counsel and attorney holder were not
ratified retrospectively--Validity--Acts of counsel and attorney holder were
not ratified subsequently either orally in his examination-in-chief or in
writing by him at any stage--For the purpose the contents of wakalat nama and power of
attorney had to be strictly construed. [P.
33] F & G
PLD 2003 Pesh. 40.
N.W.F.P.
Pre-emption Act, 1987 (X of 1987)--
----Scope
of--Right of pre-emption--Talb-e-Muwathibat and Talb-e-Ishhad--Validity--Pre-emptor was required to first
perform two other formalities namely Talb-e-Muwathibat
and Talb-e-Ishhad--If two formalities were not
fulfilled and observed in accordance with the provisions of Pre-emption Act by
pre-emptor--Third demand through khusumat was
immaterial--In ordinary civil cases no such act is required to be performed
before institution of suit--No need to dilate upon further disputed questions. [P. 33] H
Mr.
Abdul Sattar Khan, Advocate for Petitioner.
Mr.
Abdul Samad Khan Zaida,
Advocate for Respondent.
Date
of hearing: 28.4.2010.
Judgment
Through
the instant revision petition the petitioner has called in question the
validity of a judgment and decree dated 11.6.2005 recorded by the learned
appellate Court, whereby while accepting the appeal of the respondent the
judgment and decree dated 15.1.2004 rendered by the learned Civil Judge
dismissing the suit of the respondent, has been set aside and his suit decreed
as prayed for in a pre-emption suit with regard to the disputed property
against the petitioner on payment of 4,70,945/- as sale consideration.
2. The summarized facts forming the background
of the instant litigation are that the petitioner purchased the disputed
property measuring 27 Kanals 8 Marla Mauza Bilitung Kohat on the basis of Mutation No. 4386 dated 31.1.2001 for
a sum of Rs. 8,22,000/- as sale consideration. This
transaction was pre-empted by the respondent in the capacity of plaintiff by
filing a suit on 26.5.2001 before the Court of Civil Judge on the ground that
he being possessed of superior rights of pre-emption is entitled to its
possession through exercise of his valid right of pre-emption. It is averred in
the plaint that the respondent pre-emptor got knowledge about the sale on
24.3.2001 at about 12.00 noon telephonically by his
friend Haji Mameer Khan at
his residence at Abu Dhabi. At that time Munawar Khan and Hamayun Khan
were also present at the PCO with the informer and as soon as he got knowledge
about the sale on the telephone, he there and then declared his intention to
pre-empt the suit land. It is further averred in the plaint that after three
days i.e. on 27.3.2001 notice Talb-e-Ishhad through
counsel was scribed, attested by the said witnesses and was dispatched in the
name of the petitioner vendee.
3. The petitioner on being summoned opted to
contest the suit of the respondent by filing written statement, wherein he
raised many legal and factual objections including the non-performance of the
formalities of Talb-e-Muwathibat and Talb-e-Ishhad. The learned trial Court after framing of
necessary issues put the parties on trial and on the conclusion of the same
dismissed the suit of the respondent due to his failure to prove the formality
of Talb-e-Ishhad on the ground that at the time of
scribing the notice neither the counsel had any Wakalat
Nama in his favour on
behalf of the respondent pre-emptor nor he had yet empowered the informer Haji Mameer through any power of
attorney However, the appeal of the respondent found favour
with the learned appellate Court who while accepting the same passed a decree
in favour of the respondent for possession through
pre-emption. Thus the instant revision petition.
4. The learned counsel for the petitioner
vehemently contended that although the respondent in the notice Talb-e-Ishhad and in his plaint has disclosed the place,
date, time and the informer, for observing the first formality of Talb-e-Muwathibat but subsequently during the course of
trial neither he himself nor any of his witnesses has referred to such details
in their depositions and in this way the basic formality which is serving as a
foundation for the exercise of valid right of pre-emption is missing and stands
unproved. He next contended that the respondent although at the time of sale
was at Abu Dhabi, but at the time of scribing the notice neither he had
executed any Wakalat Nama
in favour of his counsel nor he had executed any
power of attorney in favour of Haji
Mameer the informer, nor the said acts having been
performed and done on his behalf, were ratified by the respondent with
retrospective effect either verbally or in writing. He also contended that the
evidence of the respondent regarding the proof of the formalities of Talbat is highly discrepant in nature and is also beyond
the purview of the pleadings, but all these facts
according to him have escaped the notice of the appellate Court. He lastly
contended that the amount entered in the sale mutation being genuine price of
the suit land was fixed in good faith, but the same has wrongly been
disbelieved. He also contended that right of pre-emption being a feeble and
piratical right, formalities required for its exercise and enforcement must be
strictly observed and there must a clear proof on record. In support of his
contentions he referred to many recent judgments of the High Court and the
August Supreme Court as well.
5. On the contrary the learned counsel for the
respondent while opposing the contentions of the learned counsel for the
petitioner maintained that the learned appellate Court has committed no
illegality while recording the impugned judgment and he sought the dismissal of
the instant petition.
6. I have heard the respective contentions of
the learned counsel for the parties and perused the record with their valuable
assistance.
7. At the very outset I would like to observe
that there is no dispute between the parties with regard to the superior right
of pre-emption being possessed by the respondent, limitation, estoppel etc. The main thrust of the arguments of the
learned counsel for the petitioner circles around two grounds, firstly that the
respondent has failed to observe the formalities of Talb-e-Muwathibat
and Talb-e-Ishhad in accordance with the settled
principles of law and secondly that at the time of scribing the notice of Talb-e-Ishhad neither the counsel had any Wakalat Nama on behalf of the
Respondent Nor the attorney was vested with any power of attorney to scribe and
send the said notice to the petitioner coupled with the fact that the said acts
were never ratified subsequently with retrospective effect. I would like to
pick up for discussion the first ground pertaining to the observance of the
legal formality of Talb-e-Muwathibat which is serving
as a foundation for the exercise of a valid right of pre-emption. It is
manifest from the notice Talb-e-Ishhad Ex.P. W. 4/1 dated 27.3.2001 and the plaint that the
respondent telephonically on 24.3.2001 got knowledge at his residence at Abu Dhabi through Haji Mameer Khan in presence of Munwar Khan and Hamayun Khan
regarding the sale in question and he allegedly there and then declared his
intention to pre-empt the said sale in favour of the
petitioner. It is also evident from the record that the power of attorney in favour of Mameer Khan was scribed
on 23.4.2001 and was attested by the Embassy of Pakistan on 19.5.2001. Wakalat Nama was also scribed by
the respondent on 23.4.2001 and was attested on 19.5.2001 and was accepted and
attested by the counsel on 26.5.2001. First
of all it
has to be
seen in the
light of evidence produced by the respondent as to whether the first
formality of Talb-e-Muwathibat has been observed in
accordance with the requirements of Section 13 of erstwhile NWFP Pre-emption
Act, 1987. In this regard the
relevant statement is that of the respondent himself as P.W.4, statement of Munar Khan and Hamayun Khan as P.Ws. 5 and 6, who are the attesting witnesses of notice Talb-e-Ishhad and that of Haji Mameer Khan P.W.7 as informer and attorney holder at whose
behest not only the notice Talb-e-Ishhad was scribed
but through him the suit was also instituted. A bare reading of the statement
of the respondent clearly indicates that he has totally omitted to mention in
his examination-in-chief the necessary details of time, date, place and
witnesses of Talb-e-Muwathibat. He has simply
mentioned the name of Haji Mameer
as an informer. Likewise the attesting witnesses of the notice of Talb-e-Ishhad are totally silent about their presence with
the informer at the PCO from where the respondent was telephonically informed
about the sale in question by Haji Mameer Khan. These two witnesses have also not uttered a
single word about the observance of first formality of Talb-e-Muwathibat
by the respondent pre-emptor nor they have given the
requisite details in their examination-in-chief. For convenience sake the
statement of P.W. 5 comprising three lines is reproduced as under:--
`I
have seen notice Ex. P.W. 4/1 which is duly signed by me as marginal witness.
The notice was regarding pre-emption from Imam Gul
plaintiff against Nadir Khan defendant.'
Likewise
the statement of Hamayun Khan son
of Haji Mameer Khan as P.W.
6 is as under:
`I
have seen Ex.P.W.4/1 which correctly bears my signature as marginal witness.'
8. The respondent has tried to exercise his
right of pre-emption for acquiring the suit land on the basis of the above
mentioned evidence in order to prove the factum of Talb-e-Muwathibat and Talb-e-Ishhad.
The moot question crops up for consideration at this juncture is as to whether
the above testimonies are sufficient for conferring valid right of pre-emption
upon the respondent pre-emptor? The answer is definitely in negative. The valid
reason is that not only the pre-emptor is required to give the requisite
details in his plaint but he is also required to substantiate the said details
through his evidence as well. In the instant case the respondent pre-emptor has
disclosed the exact date, time, place and the names of the informer and the
witnesses in whose presence the first formality of Talb-e-Muwathibat
was observed. But later on during the course of evidence not only the
respondent as a plaintiff, but his witnesses of Talb-e-Muwathibat
badly failed to mention the said details in their
evidence. Mere mention of
these details in the notice Talb-e-Ishhad
and plaint are highly insufficient and the pre-emptor has to prove in evidence
the requisite details of making Talb-e-Muwathibat
mentioned by him in plaint. Reliance in this regard can validly be placed upon
a judgment of the August Supreme Court of Pakistan reported as 2007 SCMR 962.
In
this case although the date of Talb-e-Muwathibat was
given in the plaint, but during the course of trial none of the witnesses
including the pre-emptor deposed about the same in evidence, resultantly the
suit of the pre-emptor was dismissed. Likewise in two other recent judgments of
the August Supreme Court reported as 2009 SCMR 488 and 2008 SCMR 934 the August
Supreme Court has held that the presence of the said particulars in the plaint
and evidence is must. Since in the instant case these details are totally
missing in the evidence, therefore, the first formality of Talb-e-Muwathibat
stands unfulfilled and the suit of the respondent pre-emptor could not be
decreed. Although the learned trial Court while recording its findings on the
relevant issue of Talbat has held that the respondent
has succeeded in the proof of the first formality of Talb-e-Muwathibat
but on the factum of Talb-e-Ishhad
the suit was dismissed. The said approach of the trial Court in the light of
deficient evidence of the respondent was totally unwarranted and misconceived.
Similarly the learned appellate Court instead of adverting to this material
aspect of the case has stuck to technicalities while allowing the appeal of the
respondent. In other words both the Courts below have miserably failed to
appreciate as to whether the respondent has succeeded to observe the formality
of first Talb, which is serving as a foundation for a
suit for pre-emption. Needless to observe that in the absence of non-observance
of the first Talab, the factum
and performance of Talb-e-Ishhad is inconsequential.
Moreover, by now it is settled that right of pre-emption is feeble and
piratical right.
9. As far as the second contention of the
learned counsel for the petitioner that in the absence of any Wakalat Nama and power of
attorney at the time of scribing the notice, the same is of no legal value is
also not without force. The reason is that the notice Talb-e-Ishhad
was scribed on 27.3.2001, which was purportedly given by the counsel on behalf
of the respondent pre-emptor but at that time there was no Wakalat
Nama on his behalf in favour
of the said counsel. The Wakalat Nama
was scribed on 27.4.2001 and was attested by the Embassy on 19.5.2001 and was
accepted by the counsel on 26.5.2001. Likewise the special power of attorney
executed by the respondent in favour of Haji Mameer Khan was also scribed
on 23.4.2001 and was attested by the Embassy on 19.5.2001. Meaning thereby that
on 27.3.2001 neither the counsel was authorized to scribe the notice on his
behalf nor the said attorney was delegated with any power to instruct the said
counsel for doing so. It is
further evident from the contents
of Wakalat Nama and special
power of attorney that the acts of the counsel and attorney holder were not
ratified retrospectively. Likewise the said acts of the counsel and attorney
holder were also not ratified subsequently either orally in his
examination-in-chief by the respondent or in writing by him at any stage. The
simple inference that can be inferred from the above facts is that whatever was
done on behalf of the respondent pre-emptor was without any authority and the
same in the absence of any proof cannot be given ratification retrospectively.
For this purpose the contents of Wakalat Nama and the power of attorney have to be strictly
construed. Reliance in this regard is placed upon a judgment reported as PLD
2003 Peshawar 40 tilted as Muhammad Fazal Paracha Vs.
Mst. Fauzia Begum. The
facts of the reported case amply fulfill the requirements of the instant case.
Relevant citation for convenience is reproduced as under:
`If
an attorney was not authorized in clear words to do particular act, then the
same could not be performed by the attorney-Law requires that power of attorney
must be construed strictly, while certain authority conferring on the
attorney.'
10. In the said judgment reference has been given
to many other judgments of the apex Court.
11. The observation of the learned appellate
Court that Agent or counsel can even be appointed orally is also not available
in the instant case. Because all the judgments referred to by the learned
appellate Court are not proving helpful in the instant case, which is a case of
pre-emption in which before the institution i.e. demand through Khusumat, the pre-emptor is required to first perform two
other formalities namely Talb-e-Muwathibat and Talb-e-Ishhad. If the first two formalities are not
fulfilled and observed in accordance with the provisions of the Pre-emption Act
by the pre-emptor, the third demand through Khusumat
is immaterial. On the contrary in ordinary civil cases no such act is required
to be performed before the institution of the suit. In view of the aforesaid
observations there is no need to dilate upon further disputed questions.
In
this view of the matter this Court is left with no alternative but to accept
the instant revision petition. Consequently the impugned judgment and decree
recorded by the learned appellate Court being perverse in nature and based on
surmises and conjectures, is hereby set aside, the decision of the trial Court
is restored and the suit of the respondent is accordingly dismissed leaving the
parties to bear their own costs.
(R.A.) Petition accepted.
