2011 PLP 466 (MLD)

MAZHAR ALAM KHAN MIANKHEL, J.

The impugned herein is a judgment/order dated 26-6-2006 passed by respondent No.6, the Additional Sessions Judge-III/Izafi Zilla Qazi, Swat whereby he allowed a civil revision against a judgment/order dated 29-10-2005 of respondent No.5, the Civil Judge-V/Illaqa Qazi, Swat and thereby dismissed the suit of petitioner. A sale Mutation No.643 dated 25-3-2005 against a sale consideration of R.24,67,500 was pre-empted by the present petitioner who in his plaint alleged the sale consideration to be an inflated one and actually sale took place against a sale consideration of Rs.14,00,000.

2. After filing of the pre-emption suit, the plaintiff/petitioner was directed by the trial Court vide its order dated 19-4-2005 to deposit 1/3rd of the pre-emption amount within one month. The plaintiff accordingly applied for the deposit of 1/3rd of the amount of Rs.14,00,000 as was alleged by him as the actual sale consideration instead of Rs.24,67,500 which was clearly mentioned in the sale mutation and accordingly the said 1/3rd was deposited in the Court.

3. The defendant/respondents after putting appearance, instead of filing written statement applied for dismissal of the pre-emption suit as 1/3rd of the sale consideration mentioned in the sale mutation was not deposited by the plaintiff. The said application was contested by the petitioner by submitting the reply and the learned trial Court vide its order dated 29-10-2005 dismissed the same and further directed the petitioner to deposit, the balance of 1/3rd amount mentioned in the sale mutation i.e. Rs.3,55,800 within seven days and the same as per record of instant petition was also deposited by the plaintiff/petitioner.

4. The order dated 29-10-2005 which in substance amounts to extension of time for deposit of pre-emption money, was impugned by the defendant/respondents before the District Court through a revision petition. Said revision was allowed by the Additional District Judge/Izafi Zilla Qazi-III Swat vide his judgment/order dated 26-6-2006. Hence, instant writ petition against the same. 5.? Learned counsel for the petitioner in support of his petition by referring to the order sheet dated 19-4-2005 of the trial Court submitted that there was no specific order regarding the actual amount by the trial Court to be deposited as 1/3rd and he on his presumption deposited the 1/3rd of the amount which he alleged to be the actual and genuine sale consideration. So, in absence of specific order by the Court, no one should suffer because of such an ambiguous order of the Court and submitted that there was no mala fide on the part of the petitioner as he had deposited the amount within the stipulated period and then again complied with the directions of the Court and deposited the balance amount of Rs.3,55,800 which reflects the bona fide intention of the petitioner and in support of his submissions, he placed reliance on Muhammad Din v. Mehboob Khan and 3 others (1993 SCMR 2325) and Haji Gul Nabi v. Mst. Sahib Jamala and 8 others (1994 SCMR 845).

6. As against that, the learned counsel for respondent No.1 submitted that the judgment/order passed by the learned District Court in exercise of its revisional jurisdiction is quite in accordance with the law as no further extension of time can be made by the Court and being aware of the law and actual sale price mentioned in the mutation, petitioner has to suffer. He further submitted that there was no ambiguity in the initial order of the trial Court dated 19-4-2005 and the provisions of section 24 of the N.-W.F.P. Pre-emption Act, 1987 are itself clear in this regard and requested for dismissal of instant writ petition by placing reliance on Jehanzeb Khan v. Muhammad Iqbal (2000 SCMR 365), Muhammad Ayub and others v. Mst. Nusrat Begum (2003 YLR 793), Malik Nasrullah v. Mst. Mumlikat Begum (2003 CLD 235) and. Mst. Bararn Posh Bibi v. Pir Muhammad Khan and 7 others (PLD 1999 Peshawar 47).

7. The learned counsel for the parties were heard and record of the case was perused. The same would reveal that the sale mutation under pre-emption was well within the knowledge of the petitioner and on the strength of that knowledge, the petitioner made `talb-i-muwathibat' on 2-4-2005 and as per version of the petitioner in para-4 of his plaint, he was also aware of the fact that a sale consideration of Rs.24,67,500 was shown in the sale mutation though he has alleged the same to be an inflated amount. The contention of the learned counsel for the petitioner that the inflated amount was incorporated in the mutation and he categorically alleged the actual sale consideration to be Rs.14,00,000 in his plaint and on this analogy, he deposited the 1/3rd of the same as pre-emption amount could not be accepted as almost in all the pre-emption cases such like assertions are made by the pre-emptors and the actual sale consideration and the market value is determined by the Courts at the time of conclusion of the case under sections 27 and 28 of Pre-emption Act. As far as deposit of 1/3rd of the sale price is concerned, that is undisputedly is the price which is reflected in the sale deed/sale mutation and the provisions of section 24 of N.-W.F.P. Pre-emption Act, 1987 in this regard are very much clear which require the plaintiff to deposit 1/3rd of the sale price of the property reflected in the mutation or registered sale-deed, in cash within a period fixed by the Court and it is the sale price of the property mentioned in the mutation or sale-deed and not the price alleged by the pre-emptor in his plaint. There is an exception to this legal aspect and that is when no sale price is mentioned in mutation or sale deed, then in that case, Court can ask for the deposit of 1/3rd of 'the probable value of the property. The relevant portion and title of section 24 is reproduced for convenience:-- "

24. Plaintiff to deposit sale price of the property.

(1) In every suit for pre-emption the Court shall require the plaintiff to deposit in such Court one-third of the sale price of the property in cash within such period as the Court may fix: Provided that if no sale price is mentioned in the sale-deed or in the mutation, the Court shall require the deposit of one-third of the probable value of the property." So, we are clear in our mind that the order of the trial Court dated 19-4-2005 itself in the light of above discussion was an unambiguous order which is reproduced as below:

Which means that not any other amount as was alleged by the plaintiff but only and only the sale price mentioned in the sale mutation. The case-laws relied upon by the learned counsel for the petitioner in this regard would not be of any help to him as the facts of both the cases are distinguishable from the facts of the case in hand. In both the cases, there were some misstatements and fraudulent acts on the part of those pre-emptors. So, both the judgments of the august Court would not come to rescue of the petitioner.

7. The findings of the district court in exercise of its revisional jurisdiction appears to be well within the framework of law and in absence of any illegality or unlawful exercise of jurisdiction by the Courts below, the same cannot be interfered with by this Court while exercising jurisdiction under Article 199 of the Islamic Republic of Pakistan. Hence, being meritless, this writ petition is dismissed as such. H.B.T,/353/P?????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.