1988 PLP 1152 (CLC)

(b) Civil Procedure Code (V of 1908)‑‑ ‑‑‑S. 115‑‑Exercise of revisional jurisdiction‑‑Courts below in exercise of their jurisdiction having not committed any illegality or irregularity‑‑Concurrent findings thereof, held, could not be interfered with in exercise of revisional jurisdiction. Mirza Manzoor Ahmad for Appellant. The revisional jurisdiction of this Court has been invoked to set aside the order dated 27‑11‑1985 pronounced by Ch. Muhammad Ali the learned Additional District Judge, Khanewal who had confirmed that of Ch. Riaz Mahmood, the learned Civil Judge, Khanewal dated 5‑5‑1985.

2. The brief facts of this case are that Sultan, the respondent, who is the pre‑emptor decree holder, obtained a decree for possession by pre‑emption of the land in dispute measuring 124 kanals and 2 marlas situate in Chak No.92/10‑R, Tehsil Khanewal on payment of Rs.2,83,500 with costs on 24‑11‑1984. It was ordered by the learned trial Court that the sale price of Rs.2,84,300 including one‑fifth of the pre‑emption money should be deposited by 31‑1‑1985, failing which his suit shall stand dismissed. The respondent had deposited Rs.54,000 by way of one fifth of the pre‑emption money on 9‑3‑1985. He deposited a further sum of Rs. 2,26,500 by the due date. In a way, he deposits Rs.3000 less than the amount ordered to be deposited within time. The respondent filed an execution application and the petitioners objected that the suit of the respondent should have been dismissed as the entire amount had not been deposited in accordance with the directions of the learned trial Court.

3. The respondent took the plea that he had deducted a sum of Rs.3,000 towards the costs awarded in his favour. It may be noted that the costs awarded in his favour were about Rs.18,

000. The question arose whether he could adjust the amount of costs towards the payment of the pre‑emption money. Both the learned lower courts found that the amount of costs was adjustable and they dismissed the objection petition filed by the petitioners.

4. In Muhammad Afzal and 8 others v. Haji Fazal‑ul‑Haq and another (P L D 1971 Supreme Court 162), a similar question arose wherein it has been held that there was a unanimous view of the Court that where a pre‑emptor is directed to pay into a Court a specific sum of money and is awarded costs, he is entitled to deduct the amount so awarded from the sum he is directed to pay in Court and there is nothing in the C.P.C nor is there any equitable consideration which would prohibit a pre‑emptor decree holder from availing himself of the doctrine of set off by deducting the costs allowed to him from the purchase money which he is to deposit under the very decree which awards him costs. The same principle was enunciated in Alam Din v. Muhammad Rehman and another (PLD 1980 Azad Jammu and Kashmir 34) . His Lordship Mr. Justice Muhammad Ilyas in Mst. Rehmatey and 7 others v. Khanan (1980 C L C 1765) adjudicated that the costs could be adjusted towards the pre‑emption money and the permission of the Court for the said purpose was not necessary. The said authority has been based on a Division Bench judgment known as Kapuria Mal and another v. Wali Muhammad and others (I L R 1921 Lah.294 fol).

5. It has been contended on behalf of the petitioner that in the decree sheet framed by the learned trial Court, the amount of costs was not entered and in this manner the costs could not be adjusted towards the pre‑emption money. This argument is devoid of any force because the pre‑emptor knew that he had paid the court fee stamps worth Rs.15,000 and the amount of costs could not be less than A Rs.3000. The pre‑emptor cannot be made to suffer on account of the omission of the official of the Civil Court who framed the decree sheet and did not enter the amount of costs therein.

6. In view of the above quoted authorities, the learned lower Courts have not committed any illegality or material irregularity in B the exercise of their jurisdiction as envisaged under section 115,1 C . P. C . I, therefore, dismiss this revision petition in limine. H.B.T./M‑579/L Revision dismissed: