2002 PLP 2801 (YLR)

The examination of above reproduced text of the section shows that under subsection (1) Court is under an obligation in a pre emption suit, to require the plaintiff to deposit one‑third of the sale price in cash in such Court, "within such period as the Court may fix." This subsection does confer power upon the Court to, in its discretion fix a period for such deposit. The scope of this discretion is, however, neither un‑limited nor infinite in view of the restriction in the first proviso to the said section which places an embargo upon the powers of the Court regarding the fixation of such period. The intent of the said statutory rider has been expressed in imperative and mandatory terms stating that "Such period shall not extent beyond 30 days of the filing of the suit." The terms thereof are prohibitory and in negative. Under subsection (1), the Court is obliged to require a plaintiff/pre‑emptor to make deposit of "Zar‑e‑Soem" and to fix a period there to which under proviso cannot be beyond the 30 days of the filing of the suit. The only possible interpretation that can be made in terms of the said subsection and proviso thereto is that, the Court may fix any period for deposit of "Zar‑e‑Soem" but such period shall not be beyond 30 days of the filing of the suit.

6. Cummulative reading of the said subsection and proviso shows that the Court's power to fix and thereafter extend the period for such deposit, is exercisable within the outer limit of 30 days. The Court, therefore has no jurisdiction to enlarge the prescribed period of 30 days to allow extensions in excess of the said time.

7. Judgment of learned Full Bench of this Court in the case of "Mian Muhammad Lutfi v. Mian Muhammad Talha Adil (NLR 2000 Civil 422) relied upon by the learned counsel for the respondents infact fortified my above expressed opinion. The learned Full Bench elaborately discussing the law laid down by the Honourable Supreme Court in the cases of " Awal Noor v. District Judge, Karak and 8 others (1992 SCMR 746). "Haji Rana Muhammad Shabbir Ahmad Khan v: Government of Punjab Province Lahore" (PLD 1994 SC.1) and "Haji Janat Gul Khan v. Haji Faqir Muhammad Khan and 4 others" (PLD 1993 SC 204 and also the judgments in the cases of "Haji Abdul Qadir v. Zafar Shaheen (PLD 1997 Lahore 549), Wafa Jan v. Mahrammad" (1995 CLC 2002), "Muhammad Ismail v. Jamil‑ur‑Rehman" (1995 MLD 1011) and "Jamshed Ali and 2 others v. Ghulam Hassan (1995 CLC 957) held as under:‑‑ "It is clear from the above provision that:--‑firstly the Trial Court has to pass an order for deposit of 1/3rd of the pre‑emption amount: secondly, it has power to extend the time but such period shall not be beyond 30 days of the filing of the suit; and Lastly, in case the sale price was not mentioned in the sale‑deed then it shall require deposit of 1/3rd of the probable value of the property.

7. It is clear from the main subsection that the plaintiff was to deposit 1/3rd of the sale price in compliance with the order of the Court. It excludes the possibility of the deposit of amount by the plaintiff of his own. The provision is harsh, therefore, it has to be interpreted strictly. The first proviso empowered Court to grant extension in the time for deposit of 1/3rd but at the same time curtailed its powers by prescribing the total period of 30 days from the date of institution of the suit.

8. It therefore, followed that the Trial Court could extend time if in the first order the time allowed to the plaintiff for deposit of 1/3rd of the sale price was less than 30 days from the date of the suit and not otherwise because that would militate against the proviso and the same will become a dead letter. Redundancy cannot be attributed to the Legislature. Now the question was whether violation of the two provisions could in the circumstances of the case, entail penal consequence of the dismissal of the, suit by invoking subsection (2) of section 24 of Act, which read as under:‑ "(2) Where the plaintiff fails to make a deposit under subsection (1) within the period fixed by the Court, or withdraws the sum .so deposited by him, his suit shall be dismissed." (Emphasis supplied.)

9. In our considered view the reply is in negative for the following reasons:‑ (i) If the time fixed by the Court over runs the period prescribed by the statute, it will not entail dismissal of the suit under section 24(2) of the Act. It was never the intention of the Legislature. If the matter is taken to its logical end then such an order would not be sustainable in an appeal or revision and fresh order will have to be passed strictly in accordance with the Statute; (ii) The plaintiff could only make the deposit of 1/3rd of the sale price under the orders of the Court and not of his own; (iii) The penalty of dismissal of the suit follows when the plaintiff failed to make deposit within the period fixed by the Court as was clear from subsection (2) of section 24 of the Act." It is also beneficial to reproduce the most relevant lines from the case of "Awal Noor v. District Judge, Karak and 8 others" (1992 SCMR 746) wherein it was held that:‑ "It was held that no amount can be ordered to be deposited beyond 30 days. Therefore, the direction for further deposit was not lawful. The period could not be extended suo motu or on the asking of the party. " On the basis of above, in another case i.e. "Ijaz Ahmad Khan v. Muhammad Asif" (2000 CLC 808), this Court observed as under:‑ "It has been held in case of 'Awal Noor v. District Judge, Katak and 8 others (1992 SCMR 746) that time for the deposit of 1/3rd of pre‑emption money has been fixed by the statute itself and it cannot be extended by the Court. This principle was followed by the Lahore High Court in case of Muhammad Ismaeel v. Jameel‑ur Rehman and 6 others (1995 MLD 1011). It is the judicial dignity to follow the principle laid down by the apex Court of the country and I am in the agreement with the dictum laid down in case of 'Awal Noor v. District Judge, Karad and 8 others (supra) which is fully applicable to the facts of the instant case. Since the time for the deposit of 1/3rd of the pre‑emption money has been fixed by the statute, so the trial Court has rightly dismissed the suit of the petitioner for non‑compliance of the order of depositing of Zar‑e‑Soem." Reliance of the learned counsel for respondents on the cases of "Muhammad Yousaf v. Additional District Judge. Narowal and another" (1999 SCMR 1999), Riaz Hussain v. Allah Ditta and 3 others" (2000 CLC 1337), and "Nazir Ahmad and another v. Abdullah" (1999 SCMR 342) is misplaced as these judgments relate to law laid down under Punjab Pre‑emption Act, 1913 and not on Punjab Pre‑Emption Act, 1991. The case of "Abdul Wahid and others v. Sardar Ali and others" (2000 SCMR 650) though decided by the Honourable Supreme Court of Pakistan under Punjab Pre‑emption Act, 1991 is not a precedent as no principle of law has been discussed or laid down therein. Further, it was a case where civil Courts remained closed during the month of August on account of summer vacations and there was no duty Judge available at Chunian. Similarly the case of "Muhammad Sarwar and another v. Khan Muhammad and another" (2000 YLR 1793) is mainly a case upon probable price upon which additional deposit of "Zar‑e‑Soem" was allowed to be made. Though judgment of Full Bench of this Court in the case of "Mian Muhammad Lutfi v. Mian Muhammad Talha' (NLR 2000 Civil 422) was referred to in the context that no one could be allowed to suffer on account of an act of Court yet the other principle laid down in the said judgment regarding deposit of "Zar‑e‑Soem" and absence of Court's power to extend the time thereof, were not adverted to in the said judgment. The respondents, therefore, cannot be allowed to draw any benefit from this judgment as well.

8. As a result of above, I have no hesitation in holding that learned Additional District Judge, Shorkot exceeded his jurisdiction in extending the time of deposit of "Zar‑e‑Soem" beyond 30 days provided in proviso to subsection (1) of section 24 or Punjab Pre‑emption Act, 1991. As such, judgment and decree dated 17‑7‑1995' passed by him is set aside.

9. As a result, both the revision petitions are accepted and judgment and decree dated 9‑3‑1994 passed by the learned Civil Judge, Shorkot dismissing respondents suit for possession through pre‑emption is restored. There shall however, be no order as to costs. Q.M.H./M.A.K./M‑976/L Revisions allowed.