2005 PLP 325 (CLC)

MALIK HAMID SAEED, J.‑‑‑The point for determination raised in this Constitutional Petition filed by Amir Badshah, petitioner, against Amin‑ul‑Haq and others, respondents/defendants, is to the effect that the learned Civil Judge/Illaqa Qazi Chakdara did allow the petitioner/plaintiff to record his evidence in his pre‑emption suit, but the learned Additional District Judge/Izafi Zilla Qazi, Timargara, Dir Payeen Camp. Court, Chakdara vide impugned judgment, dated 20‑4‑2004 accepted the revision petition filed by the respondent/ defendants and thus, precluded the petitioner/plaintiff from recording of his statement on the ground that the case was at such a stage where both the, parties had already recorded their respective evidence, hence according to the petitioner the order of the revisional Court is against law and facts of the case.

2. We have heard the learned counsel for the parties and also gone through the material placed on file.

3. The petitioner/plaintiff has brought a pre‑emption suit against the respondents/defendants in respect of landed property situated at Barand Buchakay known as Barand Pattay, wherein issues have been framed and evidence of the parties recorded, however, on behalf of the petitioner/plaintiff, his son Raham Badshah appeared as P.W.1 and deposed about the various `Talbs' made by his father. When the evidence of the parties completed, the counsel for the petitioner made an application to the trial Court, that plaintiff/petitioner himself be allowed to give evidence in respect of the `Talbs' made by him. The objection of the respondent/defendants is that the plaintiff/petitioner had duly authorized his son Raham Badshah through a valid special power of attorney to give statement at the trial on his behalf, hence there is no need or requirement of law to allow the plaintiff/petitioner to re correct the facts which he has already deposed through his duly appointed attorney. The contention of the learned counsel for the petitioner is however, that no power of attorney was given by the plaintiff to his son.

4. Without going into the controversy as to whether the son of the plaintiff/petitioner was duly authorized through a special power of attorney to depose on behalf of the plaintiff or not, despite the fact that there is no mention of this fact in the statement of the son of the plaintiff nor any power of attorney has been exhibited on record through him, but suffice it to say, that if the said attorney is treated to have been executed, the same would however, be treated as useful to the extent of Talb‑i‑Khasuinat only and not to the extent of raising other `Talbs i.e. Talb‑i‑Muwathibat' or `Talb‑i‑Ishhad.', ,as `Talb i‑Muwathibat' is purely an act of personal nature, which could only be described amicably by the party itself and not by the person holding power of attorney on his behalf, hence the attorney of the plaintiff could not at least raise Talb‑i‑Muwathibat on behalf of his father/plaintiff. Similar view has been taken by this Court in the case of Falak Sher Khan and another v. Mir Qalam Khan and another 1995 CLC 1077 wherein it is held that:‑‑ "Talb‑i‑Muwathibat being pure act of personal nature could be described amicably by the party itself and not by the person holding power of attorney on his behalf." The position being so, in our view, the technical effect of examination of the plaintiff at a latest stage of the proceedings, if any, being a procedural matter, should not be so seriously pressed into service, as has been done by the learned revisional Court, so as to result to defeating the material right of a plaintiff and that too in the case of right of pre‑emption, concerning with the performance of "Talb‑i‑Muawathibat".

5. For the aforesaid reasons, we find the impugned order of the learned revisional Court as not sustainable in the eye of law and therefore, would accept this writ petition as prayed for. Accordingly the impugned order, dated 20‑4‑2004 of the learned revisional Court is set aside and that of the learned trial Court dated 13‑2‑2004 is restored whereby the petitioner was allowed to appear and record statement in support of his case. However, keeping in view the peculiar circumstances of the case, acceptance of the writ petition is subject to payment of a cost worth Rs.5,000 payable by the petitioner/plaintiff to the contesting defendants/ respondents. Order accordingly. H.B.T./298/P Petition accepted.