' ABDUL RASOOL MEMON, J.--The applicant being aggrieved' and dis-satisfied with the order dated 17-5-2008 passed by 1st Judge and J.M. Pano Akil, whereby the plaint of the applicant was rejected under Order VII, Rule 11 sub-clause (d), C.P.C. And the said order was upheld vide order dated 16-12- 2009 passed by the 1st Additional District Judge, Sukkur, has filed this civil revision application on the ground that both the courts have exercised their discretion not vested with them and have committed material illegality/irregularity while rejecting the plaint of the applicant.
2. The facts of the case are that the applicant Hout Khan claiming himself to be co-sharer in S.No,489 and 490 of Deh Pano. Akil, District Sukkur had filed a suit for pre-emption and possession against the respondents claiming that the Applicant is Shaf-i-Sharik, participant in amenities and appendages and so also owner of adjoining immovable property has a right of pre-emption. It is a case of the applicant that respondents Nek Muhammad and Noor Muhammad sold out above survey numbers to Ghulam Yaseen and Mumtaz Ali the respondents Nos.4 and 5, therefore, without any delay of even a single moment he made a jumping demand showing his intention as pre- emptor of the suit property and thereafter also made a Talb-i-Ishhad in presence of two witnesses but they denied thus he has filed a suit through his attorney Hazaro Khan.
3. It appears that trial Court come to the conclusion that the power of attorney executed in favour of attorney Hazaro Khan by applicant Hout Khan, undoubtedly authorized attorney to launch all sort of proceedings including filing suit in respect of the suit land bearing S. Nos. 289, 290 of Deh Pano Akil but same do not authorize the said attorney either to purchase property on behalf of the principal or to exercise any right of pre-emption in respect of any property of third persons including, one purchased by respondents No,4 and 5, therefore, holding that the suit has not been filed by a competent person and also does not permit subsequent rectification by a principal which is supposed to terminate the rights of a third person. It is also observed by the trial Court that the cause of action accrued to the applicant in 2006 while the right of pre-emption can be exercised within a period of one year of the date of knowledge and even if under the law, subsequent rectification was permissible the applicant could not have done so because period of limitation in this suit stands terminated in the year of 2007.
4. The appellate Court vide its order dated 16-12-2009 by relying on the case of Gultaj Begum v. Lal Hussain Jabal Hussain PLD 1980 SC (AJ&K) 60 come to the conclusion that the order of trial Court does not suffer from any illegality or irregularity and holding that the suit is incompetent dismissed the appeal.
5. The learned counsel for the applicant was called upon to satisfy this Court on the point, whether the attorney can institute or maintain a suit on behalf of principal for seeking relief of pre-emption, if not specifically authorize in this regard? The learned counsel for the applicant contends that the applicant Hout Khan has authorized to his attorney Hazaro Khan to institute a suit in respect of suit land and it is not necessary that nature of suit specifically be mentioned in the mukhtiarnama/power of attorney. He further contends that plaint was signed, verified and presented by the general attorney of the applicant/ plaintiff, therefore, attorney can maintain the suit for the right of preemption on behalf of principal. He further contends that the order passed by the trial and appellate Court are against the principle laid down in Rule 11 of Order VII, C.P.C.
Therefore, both Courts have acted illegally and this Court being revisional Court may rectify the illegality committed by them.
6. I have given careful consideration to the contents of plaint, power of attorney annexed with plaint (the contents thereof are reproduced in the order of appellate Court). Nowhere in the said power of attorney the applicant has authorized to his attorney either to purchase A suit property on his/principal behalf or exercise right of pre-emption in respect of any property purchase by the respondent Nos.4 and 5 (the subject matter of this suit). I have also given my consideration to the case of Gultaj Begum v. Lal Hussain lqbal Hussain, wherein it has been held that general power of attorney authorizing donee to launch all sort of proceedings including a civil suit relating to the property does not empower donee to file pre-emption suit, it was further held that provisions of Rule 2 of Order III, C.P.C. Cannot be invoked for allowing donee to rectify the mistake. In the present suit there was no prayer on the part of the applicant before the trial or appellate Court for rectifying this mistake as conceded by learned counsel during arguments, thus said mistake cannot be rectified before this Court at revisional stage.
7. In view of above circumstances, I have come to the conclusion that the general power of attorney mentioned above clearly indicate that it is in respect of immovable property alone, had been bestowed on the attorney authorizing him to initiate all sorts of proceedings giving him C also power to mortgage, sale, gift, exchange and file suit claims application, appeal, revision, review etc. Of the said property. The said general power of attorney executed by Hout Khan in favour of Hazaro Khan did not authorize him to institute a pre-emption suit on behalf of the plaintiff for specific authority to do so in respect of the property in question. The plaintiff/applicant had not even cared to rectify the said wrong at early stage, admittedly the cause of action is said to have accrued in the year 2006 and the application under Order VII Rule 11, C.P.C. Was decided on 7-5-2008, therefore, even if under the law subsequent rectification was permissible the applicant could not have done so as a period of limitation has already expired in the year 2007.
8. Reverting to the contention of learned counsel for the applicant that as there was no any specific bar, therefore, the plaint would not have been rejected under Order VII Rule 11, C.P.C. It is the duty of Court to reject the plaint if, on perusal thereof, it appears that the suit is incompetent, also the party to suit can draw the Court's attention. It is settled law that still-born suit should be buried at its inception so that no further time will be consumed on a fruitless litigation. Reliance is placed on a case of Burmah Eastern Ltd. v. Burmah Eastern Employees' Union and others (PLD 1967 Dacca 190). It is further held in the aforesaid case that an incompetent suit should be laid at rest at the earliest moment so that no further time is wasted over what is bound to collapse as not being permitted by law. In view of the facts discussed above the suit has been filed by an incompetent person, if permitted to proceed it shall definitely collapse, therefore, where a suit was merit less and ultimately it was not possible to grant relief sought and no fruitful result was expected to come out then the provisions of Order VII Rule 11, C.P.C. Would come into play.
9. In view of above circumstances, I am of the opinion that no case for issuance of notice to the respondents has been made out and the orders passed by Senior Civil Judge and learned Additional District Judge referred above does not call for any interference by exercising revisional jurisdiction of by this Court. Accordingly this revision application is dismissed in limine.