IRSHAD ULLAH vs MUHAMMAD ARSHAD

' The petitioner/plaintiff impugns the concurrent decrees of the learned trial Court dated 11-1-2001 and of the learned Appellate Court, dated 11-7-2001, whereby a suit for possession through pre- emption filed by the respondent/plaintiff has been decreed.

2. The questions before me are as to whether the respondent/ plaintiff had competently filed the suit and as to whether the requisite Talbs had been properly made. These questions arise because the suit was filed by the respondent Muhammad Arshad through his father Fazal Karim, who was purportedly constituted general attorney of the respondent/plaintiff vide power of attorney (Exh.P.3) dated 14-10-1998.

3. The case of the petitioner/defendant is that the power of attorney (Exh.P.3) did not authorize the attorney Fazal Karim either to file a preemption suit or to make any Talbs in respect of the respondent's right of pre-emption. I have examined Exh.P.3, which has, in substantial part been reproduced in the appellate judgment. This document has been executed by the respondent/plaintiff in Saudi Arabia,. It has been attested by a Consular Officer of the Pakistan Embassy and has also been registered with the concerned Sub-Registrar.

4. In order to determine the powers delegated to the attorney by the IA respondent/plaintiff, it is necessary to see the language of the document. Firstly, it is relevant to note that the power of attorney has expressly been granted to authorize the attorney to perform acts, deeds and things in respect of the property owned by the respondent/plaintiff situated at Chah Pippalwala, Pathanwali, Tehsil Wazirabad. It is clear to me that the attorney was to have powers during the respondent's absence from Pakistan only in respect of the property owned by the respondent/ plaintiff. There is no authority granted to the attorney to file a suit for pre-empting a sale-of other property, which by definition is not owned by the respondent/plaintiff. The main thrust of the power of attorney (Exh.P.3) appears to be to enable the attorney to alienate the respondent's property and to manage and supervise the same.

5. The power of .Attorney does confer on the attorney a power to file, institute or defend suits. This power, however, is circumscribed by the clear wording that all powers granted to the attorney are in respect of the property owned by the respondent plaintiff. It cannot be disputed that the subject-matter of the present litigation is property other than the property owned by the respondent/plaintiff. Thus, I am not in any doubt that the pre-emption suit filed by the attorney on behalf of the respondent/plaintiff was beyond the scope of the authority vested in him.

6. Learned counsel for the respondent supported the impugned decrees and, firstly drew the attention of the Court to section 14 of the Punjab Pre-emption Act, 1991 to argue that the attorney of the respondent, being his agent, was entitled to make the requisite Talbs under section 13 of the said Act. In order to appreciate the argument of learned counsel for the respondent, section 14 is, reproduced as under:-- "14. Demand by guardian or agent.--- Where a person is unable to make demands under section 13, his guardian or agent may make the required demands on his behalf."

7. It is evident from section 14 aforesaid that an agent can make the required Talbs but only if the plaintiff is unable to do so. There is nothing on record to show that the respondent was suffering from any disability due to which he was unable to make the requisite Talbs. The mere fact that the respondent was residing in Saudi Arabia does not prove that he was unable to make Talbs.

Secondly, it is obvious to me that even an agent can only make the requisite Talbs if he has been authorized to do so. The word 'agent', used in section 14 above, presupposes that the D agency created by the principal authorizes the agent to make the Talbs under section 13.

8. Learned counsel for the respondent/plaintiff next adverted to sections 196, 197 and 199 of the Contract Act to argue that even where an act of an agent is done without the knowledge or authority of the principal, the principal may elect to ratify or to disown such act. The aforesaid provisions of the contract, however, have no application in the context of the provisions of the Pre- emption Act and section 14 thereof, discussed in the preceding paragraph. Nor can the provisions of a general law such as the Contract Act, override a special law such as the Preemption Act.

9. In addition to the above the general attorney of the respondent/ plaintiff, namely, Fazal Karim appeared as P.W.3 and deposed that he had made the requisite Talb-e-Muwaththat on 27-11-1998 when he was informed of the sale by one Tufail. There is nothing on record to show that the respondent/plaintiff himself had made Talb-e-Muwathibat when he became aware of the impugned sale. In this view of the matter and considering the contents of the power of attorney (Exh.P.3), noted above, I have no doubt that the Talbs, purportedly made by Fazal Karim as attorney of the respondent/plaintiff, did not fulfil the requirements of section 13 of the Punjab Pre-emption Act.

10. In the foregoing circumstances, I am not in any doubt that the pre-emption suit filed by the father of the respondent/plaintiff, purporting to be his general attorney, was beyond the 'scope of the authority delegated to him. Furthermore, the Talbs, which were made by the attorney, were also unauthorized.

11. In the light of the above discussion, I find that the impugned decrees proceed on an error of law and are, therefore, not legally sustainable. The same are, therefore, set aside. As a result, the suit filed by the respondent/plaintiff is dismissed.