P L D 2006 Lahore 658 (PLP)

JAWWAD S. KHAWAJA, J.

Muhammad Jamil appellant-plaintiff impugns the appellate judgment and decree dated 31-7-1997, whereby the decree of the learned trial Court dated 29-5-1994 has been reversed and as a result, the suit filed by the appellant seeking possession of the suit property through pre-emption has been dismissed. The dismissal has been effected, firstly on the ground that Muhammad Jamil's attorney did not have authority to make the talbs and, secondly, that even otherwise, the requirements of talbs, as set out in section 13 of the Punjab Pre-emption Act, have not been fulfilled.

2. However, at the very outset learned counsel for the respondent-defendant has submitted that the suit of the appellant is liable to be dismissed because he has withdrawn the pre-emption money amounting to Rs.6,25,557 on 31-10-1997. Learned counsel for the appellant does not dispute this fact. He has, however, advanced the argument that the amount was withdrawn during the pendency of the present appeal after the dismissal of the appellant's suit by the Court of first appeal. It was his case that, in these circumstances, the second appeal could not be dismissed.

3. To substantiate his argument, learned counsel for the appellant made reference to the language of section 22 of the Punjab Pre-emption Act, 1913 and the wording of section 24 of the Punjab Pre-emption Act, 1991. In subsection (5)(a) of section 22 of the earlier Act it was provided that the suit of the pre-emptor or an appeal preferred by him would stand dismissed upon withdrawal of the amount deposited in Court. Under section 24(2) of the current Pre-emption Act, it has been stipulated that where a plaintiff withdraws the sum deposited under subsection (1) his suit shall be dismissed.

4. Learned counsel for the appellant argued that in the present statute the word "appeal" had been omitted and, therefore, section 24 should be interpreted to mean that withdrawal of an amount at the appellate stage will not result in the dismissal of a pre-emption suit. This submission, however, ignores the basic underlying aspect of both statutory provisions, i.e. section 22 of the previous Act and section 24 of the current Act. Both sections, it may be noted, deal only with the amount required to be deposited on or before the settlement of issue under the previous Act and within thirty days from the filing of the suit in the latter statute. These provisions have no application in cases where the pre-emption money adjudicated by a trial or appellate Court has been deposited by a pre-emptor in accordance with the provisions of Order XX, rule 14(1), C.P.C. For ease of reference Rule 14(1) is reproduced as under:

"

14. Decree in pre-emption suit.--(1) Where the court decrees a claim to pre-emption in respect of a particular sale of property and the purchase-money has not been paid into court, the decree shall--specify a day on or before which the purchase money shall be so paid, and direct that on payment into Court of such purchase money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with costs."

5. It will be apparent from a bare perusal of the above rule that it relates to an obligation imposed on a successful pre-emptor after a decree has been passed in his favour, as opposed to the deposit of Zar-e-Punjum under the previous Pre-emption Act and Zar-e-Soyem under the Act now in force.

6. In the present case, consistent with the provisions of Rule 14(1) of Order XX, C.P.C., the learned trial Court directed the appellant "to deposit the decretal amount less Zar-e-Soyem failing which his suit shall stand dismissed." In my opinion the dismissal of the suit must follow either if the Zar-e-Soyem is not deposited within the time allowed by the court or, if deposited, is withdrawn because the essence of the deposit is to ensure that the purchase-money is and remains available for payment to the vendee-defendant. It is possible that situations may arise where a Court may permit a pre-emptor to withdraw the purchase-money deposited by him, without effecting his right of pre-emption. This, however, is not an issue requiring adjudication in the present case because the petitioner has not produced before me any document to show that he had retained his right of pre-emption by virtue of a Court order in spite of the withdrawal of the purchase-money.

7. Learned counsel for the appellant also referred to the case titled Abdul Aziz and 2 others v. Abdul Majid and another 1990 MLD 102 in support of his argument that the provisions of section 24(2) of the current Pre-emption Act are materially different from those of section 22(5) of the Pre-emption Act, 1913. The cited precedent, however, relates to Zar-i-Punjam deposited under section 22 of the previous Act and not to the amount of purchase-money deposited under a decree passed in terms of Order XX, rule 14, C.P.C.

8. In the above circumstances, I find that withdrawal of the purchase-money by the appellant must result in the dismissal of his suit. This appeal is, therefore, dismissed and the impugned dismissal of the appellant's suit by the learned first appellate Court is affirmed. M.B.A./M 352/L????????????????????????????????????????????????????????????????????????????????? Appeal dismisse