P L D 1984 Peshawar 150 (PLP)

ABDUR REHMAN KHAN KAIF, J: We propose to dispose of Writ Petitions Nos. 177/83, 178/83 and 179/83 filed by Muhammad Ashiq and two others against Faqir Masoom Khan and others involving similar question of law and fact by this order.

2. The facts relevant to the petitions are as follows :‑ "The petitioners are plaintiffs in three pre‑emption suits relating to three different transactions of sale effected through Mutations Nos. 529, 527 and

528. All the mentioned sale mutations were attested in the name of Faqir Masoom Khan respondent No. 1 on the same date i.e. 30‑12‑1981. In sale Mutation No. 529 the sale consideration was shown as Rs. 9,9450 in Mutation No. 527 the price was shown as Rs. 2,00,000 while in mutation No. 528 the sale consideration was shown as Rs. 1,37,

400. Thus, according to the mentioned record the respondent No. 1 had purchased landed property per above‑men tioned three mutations attested on the same date involving the total amount of Rs. 13,31,750."

3. The learned civil Judge on whose diary the cases were pending vide his order, dated 2‑1‑1983 issued directions to the petitioners for the deposit of a tentative amount of Rs. 3,00,000 in pre‑emption Suit No. 3/1 of 1982. Out of the mentioned amount petitioners were required to deposit Rs. 2,50,000 in cash and to furnish security for the remaining amount of Rs. 50,000 to the satisfaction of the Court. In pre‑emption Suit No. 1/1 of 1982 the peti tioners were directed to deposit Rs, 50,000 as pre‑emption money out of which they were required to deposit Rs. 40,000 in cash and for the remain ing amount of Rs. 10,000 they were to furnish security. Similarly in pre emption Suit No. 2/1 of 1982 the petitioners had to deposit Rs, 40,000 in cash and to furnish security for the remaining amount of Rs. 20,000 to the satisfaction of the Court out of the tentative amount. There is no denying the fact that the petitioners in compliance with the directions so issued on 2‑1‑1983 deposited the aforementioned amount in cash and also furnished security to the satisfaction of the Court.

4. On 13‑3‑1983 Faqir Masoom Khan respondent No. 1 submitted an application in the lower Court with a request that the petitioners be directed to deposit the entire amount shown as sale consideration in cash for the reason that the payment of the entire amount had been made by him by means of bank cheques and the payment so made was duly received in the account of the vendor.

5. The learned civil Judge (respondent No. 2) vide his order, dated 14‑3‑1983 while accepting the request so made issued fresh directions to the petitioners to deposit the entire sale consideration in each case inform ing them that in case the amount is not deposited within the specified period the plaint in each case shall be rejected. This order dated 14‑3‑1983 of respondent No. 2 was challenged in revision petition before the District Judge, D. I. Khan (respondent No. 3) but for the reason recorded therein the petition so filed was rejected on 14‑5‑1983 wherein the orders of respon dent No. 2, (dated 14‑3‑1983 were upheld.

6. The petitioners have accordingly invoked the constitutional jurisdic tion of this Court by filing the present petitions wherein the orders of the two Courts below have been assailed on the grounds mentioned in each of the petitions.

7. All the three petitions were heard by us in motion today. The learned counsel contended that respondent No. 2 was not competent under the law to review his previous orders, dated 2‑1‑1983 in an arbitrary manner and submitted that the orders passed by respondent No. 2 on 14‑3‑1983 in super session of the previous orders were illegal, having been passed in excess of his authority and jurisdiction. He argued that the powers of review being a creation of statute were not available under section 23 of the Pre‑emption Act, 1950 and as such the learned trial Court bad no power to review his previous orders. He also assailed the orders dated 14‑5‑1983 of respon dent No. 3 for similar reason and stressed that the learned District Judge has also failed to exercise his jurisdiction properly by refusing to interfere with the order dated 14‑3‑1983 passed by respondent No.

2. He argued that having already fixed the tentative amount, accepted the tender of cash amount as well as the security furnished, the learned civil Judge had no justification for revising his previous order after a period of about three months and was, therefore, not competent to change or vary his previous order.

8. We have examined the points raised by the learned counsel for the petitioners in the light of the relevant law and the material avail able on the record. Under section 23(1) of the N.‑W. F. P. Pre‑emption Act, 1950 it is obligatory on the Court entertaining such a suit to require the plaintiff to deposit in Court the probable value of the property in cash or require the plaintiff to furnish security to the satisfaction of the Court for payment of a sum not exceeding such probable value within such time as the Court may fix in such order. It is to be mentioned that such an order is to be made before the settlement of issues in the case.

9. The main question which requires determination in the instant case is whether the trial Court was competent to vary its original order and to replace it by order requiring the plaintiff to deposit the entire amount in cash. It is thus to be seen whether on 14‑3‑1983 circumstances existed for bringing about the change and whether it was open to the Court to exercise fresh option by issuing fresh directions in supersession of the previous orders dated 2‑1‑198 s for the deposit of the entire sale consideration as mentioned in each of the mutations in cash. The admitted position as it stands on the record is that issues had not then been settled when the impugned orders were passed. In support of his argument the learned counsel for the petitioners made reference to Zaman Mehdi Khan v. Hayat Khan (A I R 1938 Lah. 452) and stressed that the option as regards choice between cash and security having already been exercised by the trial Court, it was not competent to revise the previous orders.

10. We have gone through the contents of the case cited above and have found that the facts of that case were quite different and distinguishable. In that case the plaintiff was directed to furnish security but the surety withdrew subsequently and the plaintiff was asked to deposit the amount in cash within the specified period. On his failure to comply with such direction his suit was dismissed. On appeal the learned appellate Court held that as the security bond had become void, the Court should have asked for fresh security and not cash. He accordingly remanded the case. The mentioned orders were challenged in appeal and in that case the learned single Judge observed "In my opinion the interpretation placed on section 22 (5) (b) by the learned District Judge is correct. Section 22(1) was no longer applicable as issues had been framed and the option as regards choice between cash and. security had already been exercised."

11. It is thus evident that the mentioned observations were made for the reason that issue had already been settled in that case and the option as regard the choice between the cash and security having already been exercised could not be interfered with In the present case the position is quite different firstly for the reason that the original orders for the deposit of pre‑emption money partly in cash and partly furnishing security was replaced by one requiring the plaintiff to deposit the entire amount in cash. The other point of distinction is that in the case cited above the under for deposit of cash was passed after the framing of issues whereas in the instant case that stage had not been reached and it was still open to the Court to exercise the option as regards the choice between cash and security before the settle ment of issues.

12. A somewhat similar question came up for consideration before their Lordships of the Supreme Court in case Chaudhary Zulfiqar Ali v. Mian Akhtar Aslam and another (P L D 1967 S C 418). In the cited authority their Lordships observed that the powers of passing fresh order under the relevant provision does exist but such powers are to be exercised in express terms before the settlement of issues. To a similar effect is the Peshawar decision reported as Murad Ali Khan v. Milan Abdullah Shah and others (P L D 1965 (W. P.) Pesh. 90) wherein it was held that such powers are exercsseable up to the stage before the settlement of issues and can be exercised as such.

13. From the discussion made above it becomes clear that the time for making a choice in the instant case had not expired then and as such could not be said that the option was no longer alterable.

14. In the circumstances we are, therefore, of the well‑considered vie that respondent No. 2 in the instant case was competent to vary the original orders for good reasons at that stage when the issues in the case were ye to be settled. It is well‑known that the requirements of cash deposit o security mentioned in subsection (1) of section 23 of the N.‑W_ F. P. Pre emption Act is intended to guard against vexatious and not mala fide litigatio and its main purpose is to provide a guarantee to the vendee against such litigation and that object can be properly attained by the deposit of cash amount if it is proved that the sale consideration mentioned in the mutation was actually paid to the vendor.

15. In the instant case the civil Judge while passing the fresh orders was shown the bank cheques and was further informed that the amount so paid had been deposited in the account of the vendor. There being no evidence of the return or refund of the amount so paid at the mentioned stage, the learned trial Court was justified in passing the impugned fresh orders for the deposit in cash.

16. For the above reasons we find no valid ground for interference in the impugned orders in the exercise of our constitutional jurisdiction.

17. The petitions being without merit are accordingly dismissed in limine. Status quo order, dated 28‑6‑1963 is vacated. M. Y. H. Petition dismissed.