MUHAMMAD FAZAL PARACHA vs Mst. FAUZIA BEGUM

Mst. Fauzia Begum respondent/plaintiff filed Suit No,351/1 against Muhammad Fazal Paracha petitioner/defendant in the Court of learned Senior Civil Judge, Kohat seeking possession through pre-emption of the property mentioned in the heading of the plaint. The said suit was resisted by the petitioner/defendant by filing written statement. The learned trial Court after framing issues and recording pro and contra evidence of the parties decreed the suit in favour of the respondent/plaintiff vide judgment and decree, dated 3-10-1995. Feeling aggrieved with the said judgment and decree, the petitioner/defendant filed Appeal No,78/13 in the Court of learned District, Judge, Kohat. The said appeal was dismissed vide judgment and decree dated 2-10-1996.

Being not content with the judgments and dicrees of the learned Courts below, the petitioner/defendant has filed the revision petition in hand.

2. Syed Safdar Hussain, the learned counsel representing the petitioner, argued that the purchase was allegedly made through registered sale-deed, Exh.P.W.1/1 on 12-6-1991. The respondent/plaintiff claimed to have gained knowledge on 8-9/11/1991 and the notice of Talb-i-Ishhad Exh.P.W.2/2 was sent on 10-11-1991 by the attorney of the respondent/plaintiff. The power of attorney Exh.P.W.2/1 was allegedly executed on 25-11-1991 but was attested on 7-12-1991 by the Notary Public, Kohat and the same was produced before the Court for the first time on 7-6-1994 and it is not clear as to whether the same was executed at Peshawar or at Kohat. One of the P.Ws. Produced by the respondent/plaintiff, namely, Wasiucidin stated in his statement before the Court that the plaintiff used to reside in University Town, Peshawar and the power of attorney was executed at Peshawar in his presence, therefore, the same was doubtful. The suit in fact was filed by Jalaluddin who was interested in the suit house but not by the plaintiff/respondent, Mst. Fauzia Begum.

3. It was also argued that Talb-i-Muwathibat was not proved in accordance with law because the date, time and place had not been mentioned in the notice Talb-i-Ishhad Exh.P.W.2/2.

4. It was further argued that the respondent/plaintiff Mst. Fauzia Begum had no superior right of pre-emption. She was not owner of the adjacent/contiguous property and this fact was admitted by Mushtaq Ahmad (P.W.1) in his statement before the Court. In support of the arguments reliance is placed on 1995 SCMR 1510 and PLD 1989 SC 314.

5. On the other hand, Mr. Muhammad Latif, the learned counsel representing the respondent/plaintiff, argued that the suit filed by the respondent/plaintiff was within time because the amendment in section 31 of the N.-W.F.P. Pre-emption Act, 1987 was brought with effect from 31- 12-1991 and the suit in the case in hand had been filed by the respondent/plaintiff on 7-12-1991 i,e, much before the said amendment. The period of limitation, even if to be computed from the date of registered sale-deed Exh.P.W.1/1, the suit of the respondent/plaintiff was within time.

6. It was further argued that not only notice of Talb-i-Ishhad but also the suit had been filed by the attorney of the respondent/plaintiff and she had not disowned him as attorney till date, therefore, his act/action would be deemed to be in accordance with law. Even if the plaint was not signed/verified, it was argued, by the respondent/plaintiff, the same would amount to an irregularity which could be rectified under the law by putting her signature. Reliance in this regard is placed on M/s. Saudi Arabian Airlines v. Miss Hira Khan (2002 CLC 204).

7. It was also argued that it was not sine qua non for the respondent/plaintiff to have mentioned the date, time and place on gaining her knowledge in the plaint. The same could be explained in evidence as enunciated in (2000 CLC 252).

8. It was also argued that the learned Courts below have properly appreciated the law applicable to the case in hand: hence the impugned judgments and decrees need no interference by this Court in its revisional jurisdiction.

9. I have heard the learned counsel for the parties and perused the record.

10. The argument of the learned counsel for the petitioner that the suit filed by the respondent/plaintiff was barred by time, hence deserved dismissal has no force at all. Perusal of the record shows that the suit in hand was filed by respondent/plaintiff on 9-12-1991. The amendment in section 31 of the N.-W.F.P. Pre-emption Act, 1987 was made effective from 31-12-1991.

Since the suit had been filed before the above mentioned amendment, therefore, the same was in time. Wisdom in this regard has been gained from Muhammad Hussain and others v. Muhammad and others (2000 SCMR 367).

11. The argument of the learned counsel for the petitioner that not only notice of Talb-e-Ishhad Exh.P.W.2/2 was sent by a person who was not lawfully constituted attorney/agent of plaintiff, therefore, the Talb-e-Ishhad and Talb-e-Muwathibat made by him were not in accordance with law. This argument of the learned counsel for the petitioner has a force in it. Perusal of the case file reveals that notice of Talb-e-Ishhad Exh.P.W.2/2 was issued by the attorney of the respondent/plaintiff. Likewise suit was also filed by the attorney of the respondent/plaintiff on 17-12- 1991. The power of attorney Exh.P.W.2/1 shows that the same was allegedly executed on 25-11-1991, attested on 7-12-1991 and same was for the first time placed on record of the Court on 7-6-1994.

Qazi Jalaluddin the attorney of the respondent/plaintiff had not been delegated with, any powers on 10-11-1991 by the respondent/plaintiff when notice of Talb-e-Ishhad Exh.P.W.2/2 was allegedly issued. Similarly no power of attorney was annexed with the plaint when the same was filed on 7- 12-1991. The respondent/plaintiff even did not bother to place the same before the Court for good three years. It was eventually on 7-6-1994 that the same was for the first time produced by Jalaluddin, when his statement was to be recorded, therefore, he was not authorised to institute the same on behalf of the respondent/plaintiff if an attorney was not authorised in clear words to do a particular act, then the same cannot be performed by the attorney. It is by now settled law that power of attorney must be construed strictly while certain authority conferring on attorney. In this regard reliance is placed on Muhammad Mehrban v. Sadar-ud-Din and another (1995 CLC 1541), Muhammad Aslam and another v. Mst: Inayat Bibi and 4 others (1995 CLC 1572), Eagle Star Insurance Co. Ltd. v. Usman Sons Ltd. (PLD 1969 Karachi 123) and Murid Hussain and others v.

Muhammad Sharif through his Legal Heirs (1996 CLC 161).

12. Another factor which goes against the respondent/plaintiff is that she failed to prove that she was owner of the adiacent/contiguous property. Her own witness had stated that she was not owner of the contiguous property, therefore, she could not claim her superior rights over the pi party in dispute.

13. The Courts below have failed to appreciate the evidence available on record and law applicable to the case in hand. I, therefore, allow the revision petition, set aside the impugned judgments and decrees of the Courts below and dismiss the suit filed by the respondent/plaintiff with no order as to costs.