2000 PLP 3035 (YLR)

Representation

• Mian Shamsul Haq Ansari for Petitioner.
• Syed Muhammad Hussain Shah Qadri for Respondent.
• Evidence of the parties was recorded. The learned trial Court dismissed the suit vide judgment and decree, dated 12‑5‑1996. It may be stated here that Issues Nos. 1, 2, 3 and 5 were answered in negative. Issue No.7 was found in favour of the appellant. Issue No.6 was conceded by the appellant and it was found that a sum of Rs.3,00,00 was actually paid as sale price of the suit land. Issues. Nos.3 and 7‑A were taken up together. It was found as a fact by the learned trial Court that a valid Talb‑e‑Muathibat has been made by the appellant. However; it was held that the learned Advocate who had issued the notice of Talb‑e‑Ishhad had no authority to send the notice and as such there is no valid Talb‑e Ishhad. On the basis of the said finding issue No.3 was found against the appellant. The result was that the suit was dismissed.
• 3. Mian Shamasul Haq Ansari, learned counsel for the appellant contends that the learned trial Court has taken a hyper-technical view of the matter by holding that the learned Advocate who had acted as an agent of the appellant in the matter of issuance*of notice of Talb‑e‑Ishhad required an authority in writing to send the notice. According to the learned counsel no such authority was required under any law. Further argues that the bare statement of the appellant that he had authorised the learned Advocate to issue the notice was enough to constitute the Agency and even if there was some defect, the, same stood removed by subsequent rectification of the act of said agent by the appellant. Learned counsel for the respondent, on the other hand, insists that the learned Advocate required an authority in writing to issue the notice. The precise contention is that even for the purposes of issuance of notice an Advocate requires a Wakalatnama in writing from his client.
• We have examined the notice. So far as its contents are concerned it fully qualifies the requirements and conditions of a valid Talb‑e‑Ishhad. It refers to the making of Talb‑e‑Muathibat and confirms the same. It purports to be a notice on behalf of Muhammad Aslam appellant addressed to Ahmad Hassan, respondent. It narrates that Muhammad Aslam had appointed the addressor Ch. Muhammad Iqbal, Advocate as a Legal Adviser and has instructed him to issue the notice, contents whereof follow. The notice is duly signed by the said learned Advocate and is attested by two witnesses, namely; Muhammad Akram and Fazal Hussain who appeared respectively as P.W.2 and P.W.1 in the witness‑box and confirmed that the notice is attested by them. The appellant appeared as P.W.3. He states that one week after making of Talb‑e‑Muathibat he went to the Court and consulted Ch.Muhammad Iqbal, Advocate who asked him to bring the documents and he brought the documents to the Advocate and he drafted the notice in presence of the said two witnesses signed the notice (sic) examination he states that he did not sign Exh. P.1 as he had given a Wakalatnama to Ch. Muhammad Iqbal. In rebuttal the respondent appeared as D. W.1. In his examination‑in‑chief he did not utter a word about the said notice. In his cross‑examination in the first instance he denied that the appellant had issued a notice to him but then he was forced to admit that he had given a reply of the said notice through Ch. Muhammad Siddiq, Advocate. Apart from the said reference to the notice in the manner it is stated there is nothing in rebuttal and there is no allegation that the learned Advocate who issued the notice did so without any authorisation by the appellant.
• 5. The sole point that arises in this R.F.A. is as to whether an Advocate or for that matter any other person required an authority in writing to act for a pre‑emptor in the matter of sending of notice of Talb‑e- Ishhad. Learned counsel for the respondent relies on the provisions of Order III, Rule 4, C.P.C. However, a plain reading of the said provision of law would show that it prohibits a pleader from acting for any person in any "Court" unless he has been appointed for the purpose by such person by a document in writing signed by such person. Talb‑e‑Ishhad is not made in any Court. It is rather a prelude to filing of a suit which constitutes Talb‑e‑Khasmat under the new dispensation governing exercise of right of pre‑emption. This being so, the ordinary law of Agency would be applicable to the case in hand. Before proceeding further we may point out that as correctly noted by the learned trial Court section 14 of the Punjab Pre‑emption Act, 1991 does cater for making of the demands mentioned in section 13 by the agent of a person if he is unable to do so himself.
• 6. Law of Agency is contained in Chapter X of the Contract Act, 1872. There is no requirement under the said law that an agent in order to act on behalf of his principal has to be authorised in writing. On the other f hand, section 187 of the said Act provides that the authority may either be expressed or even implied; that is to say an authority may be given in writing or through words spoken or may even be inferred from the circumstances of the case or the ordinary course of dealing. Thus, to our mind there was no requirement under any law for giving of an authority in writing by the appellant to Ch. Muhammad Iqbal, Advocate to issue the notice Exh.Pl. What remains to be seen now is as to whether the appellant was unable within the meaning of section 14 of the said Act to give the notice himself. In our opinion he was so unable. Law prescribes certain mode of making a Talb‑e‑Ishhad as also contents thereof. The appellant is a layman. He states that he did make Talb‑e‑Muathibat when he acquired knowledge of the sale which does not require any particular word or a form. Thereafter, he went to consult the said Advocate who asked him to bring along the document and under ‑his instructions drafted the notice and signed it, and sent it to the respondent.
• 7. There is another aspect of the case as well. It stands proved as a fact that the notice contents whereof constitute a valid Talb‑e Ishhad by the appellant was duly sent under registered cover and was not only received by the respondent but replied by him. The only objection is that it does not bear the signatures of the appellant. To our mind even if it be deemed that the notice neither bears the signatures of the appellant nor of his said agent, namely, Ch.Muhammad Iqbal, Advocate, the same would not derogate from the validity of the notice. We rely on the case of Abdul Malik v. Muhammad Latif 1999 SCMR 717. In this case a notice narrating that Talb‑e‑Mauthibat has been made on 15‑2‑1993 and that Talb‑e‑Ishhad has been made in presence of two witnesses named in the notice on 115‑2‑1993 was sent to the vendee. However, the notice was not signed by the said witnesses. It was held by the Supreme Court of Pakistan that service of registered notice by pre‑emptor containing the names of two truthful witnesses before whom Talb‑e‑Ishhad was allegedly made amounted to substantial compliance of the provisions of section 13(3) of the Punjab Pre‑emption Act, 1991 and the pre‑emptor could not be non‑suited on the ground that the notice served on the vendee contending Talb‑e‑Ishhad was not attested by the two truthful witnesses whose names were disclosed in the notice. We, therefore, hold that the mere fact that the notice was not signed by the appellant could not be made a ground to non‑suit him. The learned trial Court has believed the testimony of the said two witnesses P.W.1 and P.W.2 in the matter of Talb‑e‑Muathibat as well as of Talb‑e‑Isshhad and has only proceeded to non‑suit the appellant on the ground that he had not signed the notice. This, to our mind, is making a fetish of technicality. Chief Justice Muhammad Afzal Zullah (as his Lordship then was) observed as follows while deciding the matter arising out of a pre -emption suit in the case of Syed Phul Shah v. Muhammad Hussain and 10 others (PLD 1991 SC 1051):‑‑

Judgment & Decree