PLJ 2004 Peshawar 266 (DB)
Present:
shahzad akbar khan and fazlur rehman
khan, JJ.
MUHAMMAD
YAQOOB-Petitioner
versus
I
SADAQAT and 2 others-Respondents W.P. No. 118 of
2004, decided on 10.6.2004. •NWFP Pre-emption
Act, 1987 (X of 1987)--
—S. 14-Constitution
of Pakistan,
Art. 199-Constitutional Petition-Suit for enforcement of Pre-emptive
right through attorney was filed—Application was filed by respondent for dismissal of suit on
ground requisite talabs being sine qua none-Jurisdiction of attorney
application was rejected-Revision petition was allowed-Petition's suit was
dismissed-Assailed-Ample power of attorney-Provision giving an authority to
attorney for making Talabs--Documents
on basis of which demands were made by attorney was meant for management of
property which was ownership of petitioner and to cany out allied purposes of
course-Authority was restricted
to the property of petitioner and not for enforcement of preemption rights-Power
of attorney had to be constructed strictly in
accordance with contents and
nothing can be read into it which did not expressly provide-Held: Talabs
are not made in accordance with requirements of S. 13 it would entail
necessary consequences of extinguishment of rights of pre-emptor-Petition dismissed.
[P. 267 & 268] A
' Mr. Muhammad Ayub, Advocate for
Petitioner. Date of hearing : 10.6.2004.
judgment
Shahzad Akbar Khan, J.--Mu«ammad Yaqoob has by way of this
Constitutional petition called
in question the judgment and decree dated 24.4.2004 passed by ;he
learned Addl. District Judge-II, Haripur (Respondent Xo. 3>.
2. The breviate of
the matter is that the petitioner filed a suit for the enforcement of his pre-emptive right with regard to
the suit land through his attorney namely Abdul Latif. During the pendency of the
suit an application twas filed by the respondents for the dismissal
of the suit on the ground that the requisite talabs being sine qua
none for bringing a suit of pre-emption were not made in accordance
with law as the same were made by the attorney who was having no power for making the said
talabs. The application of the respondents was rejected by the learned
trial Court on 21.9.2002. The respondents felt aggrieved on the rejection of their application and filed a revision
petition which came up for hearing before the learned Addl. District
Judge-II, Haripur who .after hearing the parties allowed the application of the respondents and set
aside the order of the trial Court. Thus the suit of the petitioner was
dismissed.
. 3. The learned
counsel appearing on behalf of the petitioner has raised and argued the
contention that the judgment and decree of the learned Revisional Court is
contrary to law and facts as Section 14 of the NWFP Pre-emption Act (X of
1987) gives ample powers to the attorney or for that matter to a guardian
to make the demands where the pre-emptor himself is not capable of
doing so.
4. We have
considered the submissions of the learned counsel for the petitioner but do not
find any force therein. We have avidly read the power of" attorney. It
does not contain any provision giving an authority to the attorney for making either talb-i-muwathibat
or talb-i-ishhad. The said document on the basis of which the demands were made
by the attorney is .meant
only for the management of the property which is in the ownership of the petitioner and
to carry out the allied purposes of course which included the filing and
defending the suits and other proceedings in the Court but such authority is
restricted only to the property of the petitioner and not for the enforcement
of any pre-emptive rights. The power of attorney has to be construed strictly
in accordance with its contents and nothing can be read
into it which it does not expressly provide. Thus
by no stretch of imagination it can be deduced that the power of attorney relied
upon by Abdul Latif •would include, into its fold the functions of making the
requisite talabs in terms
of Section 13 of the NWFP Pre-emption Act. It is also settled law that if the talabs
are not made in accordance with the requirements of Section 13 referred
above it would entail the necessary consequences of extinguishment of rights of the
pre-emptor. We have gone through the judgment of the learned Addl. District Judge, the same is based on
sound- reasons and correct appreciation of legal position.
5. Resultantly, this writ petition is dismissed in limine.
(R.A.) Petition dismissed
(R.A.) Petition dismissed
