IJAZ ANWAR, J.- Through the instant and the connected CR 97-P/2024 "Mst. Haseena vs. Mst. Noor Jehan", the petitioner has challenged the validity of the impugned judgments & decrees of both the learned Courts below, whereby her plaints for possession through Pre-emption were rejected under VII rule 11 CPC on the ground that she was not authorized to exercise/perform the demand of Talb-i-Ishhad through attorney.
2. Since a common question of law & facts is involved in both the petitions, the same are intended to be decided through this single judgment.
3. Briefly narrated facts are that the petitioner instituted two separate suits for possession through Pre-emption. She averred in her plaints to have performed all the requisite three talbs according to law. According to her, one Rafiullah informed her about the sale of the properties in question via telephone, as such, she there and then performed Talb-i-Muwathibat on 17.02.2014, in the evening, in presence of two witnesses Khair Muhammad and Imran; and for exercising the rest of the Talabs, she appointed Rafiullah, as her attorney. Accordingly, he issued notice of Talb-i-Ishhad to the respondents within the stipulated time, and thereafter, exercised Talb-i-Khusumat.
4. In response to notice(s), the respondents appeared and filed their respective applications under Order VII Rule 11 CPC for the rejection of plaint(s). The petitioner filed her written replies to the applications, and after hearing the parties, the learned trial Court vide impugned judgment & decree dated 31.3.2023 rejected the plaints, which were challenged in appeal, but the learned Additional District Judge-V, Peshawar, too dismissed the appeals vide impugned judgments & decrees dated 22.01.2024. Hence, the instant and the connected revision petitions.
5. Learned counsel for the respondents appeared in response to pre-filing notices and was ready to argue the petitions; as such, both the learned counsel for the parties were heard, and the record was perused.
6. In both the petitions, the petitioner has challenged the impugned judgments & decrees of both the learned Courts below, whereby her plaints for possession through Pre-emption were rejected under VII Rule 11 CPC on the ground that she was not authorized to exercise/ perform the talbs, particularly Talb-i-Ishhad, through her attorney.
7. Admittedly, the petitioner is residing at United Kingdom and she alleges to have got the knowledge of the sale mutations through her mobile phone and that she exercised Talb-i- Muwathibat herself there and then; and referred to two witnesses who heard her voice while performing Talb-i-Muwathibat; however, for the remaining talbs i.e. Talb-i-Ishhad and Talb-i- Khusumat, she authorized her attorney namely Rafiullah son of Haji Muhammad Qamar.
8. The wording of S. 13 of the Pre-emption Act, 1987, is clear enough to suggest that the talbs mentioned must be exercised personally by the pre-emptor; however, for any reason where such pre-emptor is unable to perform the talbs, then there must be specific authorization in the power of attorney. The power of attorney placed on file merely has a general authorization, the relevant para of the same is reproduced as under; "to do all the other acts, deeds and things which are not specifically mentioned here but which shall be needed to be done legally and in legal faith in accordance with the circumstances of the cases."
However, the special power of attorney is silent about authorizing the attorney to exercise Talb-i- Ishhad. The superior Courts are consistent on this point that the power of attorney should be construed strictly, and until such powers, which are expressly and specifically mentioned in the power of attorney, must be exercised by the agent as considered to have been delegated to him.
1. Under provisions of S. 14 of the Pre-emption Act, 1987, a validly appointed "agent" could make the requisite talbs on behalf of the "principal". Attorney who did not have express authority of the "principal"/pre-emptor to institute or exercise the "talbs", could not proceed to do so on his behalf-- -If such attorney would proceed, all actions taken by him, within the express authority of the "principal", would be a nullity in the eyes of law[2]. No authority was vested in the attorney to exercise right under S. 13 of Khyber Pakhtunkhwa Pre-emption Act, 1987---Only validly appointed agent could exercise right of requisite talbs on behalf of pre-emptor---Mere holding a general power of attorney would not empower attorney to exercise power of talbs rather he would be bound to perform his duties within four corners of said power of attorney---Performance of talbs was mandatory requirement and person exercising such right should be equipped with specific authority as provided under S. 14 of the Act---Attorney was not given express power to exercise rights of talbs---Suit filed on the basis of such talbs was rightly dismissed by the Trial Court.[3] Talb-i-Ishhad can be done by an agent, as provided in section 14 of the Khyber Pakhtunkhwa Pre- emption Act, 1987, but this is only an exception in the case of person who is unable to make the demand personally---Such exception cannot supersede the general rule---In the present case the pre-emptors/plaintiff could not be allowed to avail themselves of this exception as it required them to prove two things: first, what was the disability which prevented them from making the demand themselves?; and second, was the agent specifically authorized to do so in explicit terms before making the demand[4]
9. Thus, where the power of attorney has not specifically authorized the attorney to perform the requisite talbs in connection with the exercise of a right of pre-emption by the petitioner, the requirements of S. 14 of the ibid Act have not been fulfilled, as such, the pre-emption suit cannot proceed further on this score alone. Therefore, the judgments & decrees of both the learned Courts below are legally & factually correct and need to be interfered with by this Court under its Revisional jurisdiction, which is otherwise very narrow.
10. In view thereof, the instant and the connected revision petition having no merit stand dismissed in limine.
[1]Muhammad Yasin and another vs. Dost Muhammad through Legal Heirs and another [PLD 2002 SC 71]
2. Imam Din and 4 others vs. Bashir Ahmed and 10 others [PLD 2005 SC 418], Muhammad Raees vs. Sabz Ali and others [2011 CLC 1054]
3. Humayun Khan vs. Zareen Khan 12015 CLC 628]
4. Kashmali Khan and others vs. Mst. Malala 12023 SCMR 1176]