PLJ 2011 Peshawar 134
Present:
Hamid Farooq Durrani, J.
Haji UMAR
ZAMAN--Petitioner
versus
KABIR
KHAN--Respondent
C.R. No. 729
of 2005, decided on 6.10.2009.
NWFP
Pre-emption Act, 1987 (X of 1987)--
----S.
14--Civil Procedure Code, (V of 1908), S. 115--Civil revision--Right of
pre-emption--Power of attorney--Requisite power of agent--Instrument did not
authorize the agent to institute a pre-emption suit which essentially was
founded on personal rights of petitioner--Talb-i-muwathibat as well as
talb-i-ishhad provided foundation for suit for pre-emption talb-i-khusumat to
pre-emptor--Contentions--Validity--Contents did not authorize the attorney to
perform requisite talbs in connection with exercise of right of pre-emption nor
to file a suit for the purpose--Performance of talb-i-muwathibat and
talb-i-ishhad was a personal obligation of petitioner while he could have done
so through an agent under provisions of S. 14 of Act, 1987--albeit after
properly and specifically constituting--Revision was dismissed. [P. 137] A
NWFP
Pre-emption Act, 1987 (X of 1987)--
----S.
13--Performance of talb muwathibat--Superior right of pre-emption--Wherein
explanation described talb-i-muwathibat as immediate demand by pre-emptor in
the meeting in which he had come to know of sale, declaring his intention to
exercise the right of pre-emption--No such declaration appears to have been
made by petitioner--Petitioner remains meritless in order to attract
superintending jurisdiction of High Court for interference in finding of Court of
appeal--Petition was dismissed. [Pp.
137 & 138] B
Mr.
Hidayatullah Khan, Advocate for Petitioner.
Haji
Muhammad Zahir Shah, Advocate for Respondents Nos. 1 & 3.
Ex-parte
for Respondents No. 2 & 4.
Date of
hearing: 6.10.2009.
Judgment
The
petitioner herein, brought a suit with prayer of grant of decree for possession
of the suit house upon exercise of his right of pre-emption. Learned trial
Court was pleased to grant the requisite decree in favour of petitioner on 30.04.2004, however, it was reversed by learned Court of
appeal on 03.05.2005. Consequently, the suit of petitioner stood dismissed.
Aggrieved from the findings of the learned Appellate Court the petitioner has
preferred the instant revision petition under Section 115 of Civil Procedure
Code, 1908.
2. The facts emanating from the record suggest
that the defendants-respondents transacted the sale of suit property on
16.06.1998, of which the knowledge was acquired by plaintiff, purportedly, on
13.06.2000. Subsequently, the suit was filed on 4.7.2000. It was the claim of
petitioner-plaintiff that the suit property was contiguous to his residential
house, and was sold away by the sons of one Jalandar in favour of
defendants/respondents for a consideration of Rs. 100000/- (one lac), however,
no notice for the sale was aver given to the petitioner. That, on coming to
know regarding the factum of sale, the petitioner-plaintiff performed
Talb-i-Muwathibat on 13.06.2000 being present at his house and in the company
of Zaheer Khan son of Gujar Khan as well as Bakht
Zaman the son of the former. The other requisite Talbs were also performed by
him in due course of time.
3. Learned Court of appeal, while dislodging the
claim of petitioner-plaintiff and non-suiting him, had inter alia held that
Talb-i-Ishhad was performed by him through his son Bakht Zaman who was
constituted as a general attorney in the year 1988. The said Agent/attorney was
not conferred with the powers to create Talbs in accordance with the provisions
contained in NWFP Pre-emption Act, 1987, therefore,
the plaintiff remained at loss in carrying out his obligation as required by
the special statute. It was further observed that despite the claim of
petitioner qua having personally performed Talb-i-Muwathibat, he held himself
back from appearing before the learned trial Court and making a statement to
the said effect. The suit of petitioner was, therefore, dismissed on acceptance
of appeal.
4. I have heard learned counsel for petitioner
who argued in terms that the findings of learned Court of appeal were not
recorded in compliance with Order-XLI, Rules 31 of CPC as it failed to attend
the entire points of controversy between the parties. The said judgment was
therefore, liable for setting aside. In this regard he referred to PLD 1993 Peshawar 131. Learned counsel next contended that
in view of valuation contained in the suit the petitioner was obligated to have
deposited Court-fee along with memorandum of his appeal but he squarely failed
to do so. No relief in the appeal was, therefore, allowable in favour of the
petitioner. He was also of the view that in the light of provisions contained
in Contract Act, 1872, the attorney of petitioner could be considered to have
been impliedly authorized for performance of requisite acts under the NWFP
Pre-emption Act, 1987. He referred to 2004 MLD 650, 2004 CLC 359 in the said
context.
5. On the other hand learned counsel appearing
on behalf of respondents referred to PLJ 2003 Peshawar 324, 1995 CLC 1541-1572,
1996 CLC 161, PLD 1969 Karachi 123, 2007 SCMR 1956, 2005 CLC 325 and contended
that the instrument of power-of-attorney, executed by the petitioner, did not
specifically provide for the requisite powers in favour of Agent. Beside, the
said instrument also did not authorize that Agent to institute a pre-emption
suit which essentially was founded on the personal rights of petitioner. He
further referred to dates of execution of impugned sale deed and that of filing
of suit by petitioner in order to substantiate his arguments regarding the
latter having been brought after expiry of period prescribed for the purpose.
He was also of the argument that by not producing the original notice of
Talb-i-Ishhad or a copy thereof through secondary evidence, the same could not
be proved.
6. I have carefully perused the available record
and have also considered the arguments by learned counsel for the parties. It
emerges that the contention of petitioner before this Court is devoid of any
substance firstly, for the reason that he was compulsorily non-suited by
learned Court of appeal mainly on the ground that he remained unsuccessful in
performing the requisite Talbs in accordance with law. Having taken such view
of the matter it was, therefore, not obligatory upon the learned Court to have
expressed its opinion qua the other limbs of controversy between the parties.
It is added that Talb-i-Muwathibat as well as Talb-i-Ishhad provide foundation
for a suit for pre-emption/Talb-i-Khusumat to a pre-emptor and in case the
former are found not to have been performed in accordance with law or not
having been performed at all, the entire edifice raised thereupon is bound to
collapse. The findings of learned Court of appeal to the said extent,
therefore, are not exposed to exceptions.
7. The second limb of submissions regarding non-affixation
of Court-fee to the memorandum of appeal by the respondent also does not merit
a favouarble decision. In the said context it shall be beneficial to refer to
the findings of learned trial Court on Issue No. 5, which determined the
dispute regarding non-affixation of Court-fee by the petitioner along with the
plaint. The issue was decided in negative, which was originally struck due to a
preliminarily objection by the respondent through his written statement. At
this stage it, therefore, does not lie in the mouth of petitioner to raise the
said objection qua appeal of respondent.
8. The contents of General Power-of-Attorney
(EX-PW-1/1), which was executed by the petitioner in favour of his son, reveal
that it was completed on 24.5.1988 and was registered on 25.5.1988 at the
office of Sub-Registrar Dargai, wherein, Bakhti Zaman was appointed and
constituted as Agent of the petitioner with the investment of powers to appear
on his behalf in multiple cases and proceedings already pending or to be instituted
against the petitioner or on his behalf. The said contents did not, at all,
authorize the attorney to perform the requisite Talbs in connection with
exercise of right of pre-emption by the petitioner nor to file a suit for the
purpose. It shall be important to note here that the performance of
Talb-i-Muwathibat and Talab-i-Ishhad was a personal obligation of the
petitioner while he could have done so through an Agent under the provisions of
Section 14 of the Act ibid, albeit after properly and specifically constituting
the latter in the said respect. In the case in hand, there was no such
authorization in favour of Attorney appointed through EX-PW-1/1.
9. There is yet an-other aspect of the dispute
between the parties before this Court which relates to the defect in
performance of Talb-i-Muwathibat by the petitioner. A perusal of para-5 of the
plaint together with the statement of PW-1, the attorney of
petitioner-plaintiff, would unequivocally disclose that at the relevant time of
gaining of knowledge of suit transaction the petitioner only declared his
superior right of pre-emption to the suit property when he was present in his
house. Declaration by the petitioner was, therefore, not in accordance with
provisions contained in Section 13 of the Act ibid, wherein, explanation (I)
describes Talb-i-Muwathibat as immediate demand by a pre-emptor in
the sitting or
meeting (Majlis) in which he has
come to know of the sale, declaring his intention to exercise the right of
pre-emption. Admittedly, no such declaration appears to have been made by the
petitioner.
10. In view of the above, the petition in hand
remains meritless in order to attract the superintending jurisdiction of this
Court for interference in the resultant findings of learned Court of appeal. It
is, therefore, hereby dismissed while the parties are left to bear their
respective cost.
(R.A.) Petition
dismissed.
