2004 PLP 418 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.‑‑‑This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been filed seeking leave to appeal against the judgment dated 25‑2‑2002 passed by a learned Single Judge of Peshawar High Court, Peshawar, in a suit for pre‑emption. The petitioners purchased a piece of land measuring 1 Kanal, 11 Marlas bearing Khasra No. 194 situated in Chalgai Tehsil Bari Kot District Swat for a consideration of Rs.2,55,

000. Sahibzada Jehanzeb respondent herein filed a suit tier pre‑emption on 6‑12‑1992 in the Court of E.A.C. Swat. It was pleaded in the suit that stand was sold for a sum of Rs.1,50,000 but its price was shown Rs.2,55,000 in the mutation of sale to defeat the right to pre‑emption. The learned trial Judge directed the respondent pre‑emptor for depositing of 1/3rd of pre‑emption money within 10 day vide order dated. 22‑12‑1992 and on failure of the respondent to d‑posit the pre‑emption money, dismissed the suit vide order dated 17‑10‑1996. The order of dismissal of suit was challenged by the respondent through an appeal before the District Judge/Qazi Swat and the Appellate Court vide judgment dated 10‑3‑1997 while setting aside the order impugned in appeal, allowed the pre‑emptor to deposit the pre‑emption money amounting to Rs.50,000 within one month.. The petitioners challenged the order of Appellate Court by way of filing, of a civil revision in the Peshawar High Court, Peshawar, and a learned Single Judge vide' impugned judgment dismissed the re ion petition with the following observations:‑‑ "7.' In the instant case, an amount of Rs.50,000 has already been deposited by the respondent‑pre‑emptor in Court as 1/3rd of the pre‑emption money, in compliance with the order of learned District Judge, Swat. The main grievance of learned counsel for the petitioners is that suit‑land is alleged to have been purchased in consideration of Rs.2,55,000 and as such the respondent‑pre‑emptor was required to deposit Rs.85,000 in Court as 1 /3rd of the pre-emption amount but instead an amount of Rs.50,000 was deposited in Court which fact alone is sufficient to demonstrate that Court order has not been complied with in letter and spirit, within the meaning of section 24 of the N.‑W.F.P. Pre‑emption Act, 1987. The submission is of tenable firstly for the reason that an amount of Rs.50,000 has already been deposited in Court on 26‑12‑1992 in obedience to the order of the Court of District Judge Swat and secondly, the objection regarding deficiency in deposit. of 1/3rd of pre‑a emption money,, if any, has not been raised at any stage of proceedings. The objection having been taken for the first 'time before this Court cannot be considered as contended by learned counsel for respondent with justification." Learned counsel for the petitioners has contended that the legal consequence of the non‑deposit of pre‑emption money would be the dismissal of suit and that the Appellate Court without taking into consideration the negligence and default of pre‑emptor, extended the time for deposit of pre‑emption money. The learned counsel argued that the explanation offered by the pre‑emptor for non‑deposit of 1/3rd pre emption money that the default was due to an act of an official of the Court which would provide a valid reason for extension of time, was not a sufficient ground to take away the valuable right accrued in favour of the petitioner. The learned counsel added that learned District Judge has committed gross illegality while granting further time to the pre‑emptor for deposit of the pre‑emption money after the lapse of a period of about five years and that amount of 1/3rd of the pre‑emption money was also unjustifiably reduced. Learned counsel appearing on behalf of the respondent, on the other hand, contended that the default in question was not intentional rather it was the result of fraudulent act of the clerk of the concerned Court who having placed on record a fake deposit slip misappropriated the amount of pre‑emption money given to him for deposit in the treasury. The learned counsel submitted that a criminal case was also registered against the said clerk and that in the given circumstances, the suit of the petitioner was wrongly dismissed Therefore, the Appellate Court had rightly in exercise of discretionary jurisdiction granted further time to the petitioner for deposit of the pre emption money. The learned counsel next contended ‑that .the sale consideration mentioned in the mutation was Rs.2,55,000 but he in the written statement pleaded that it was an inflated price and only a sum of Rs.1,50,000 was paid as sale price; therefore, the Court was empowered to fix probable price for the purpose of deposit of 1/3rd pre‑emption money under section 24 of N.‑W.F.P. Pre‑emption Act, 1987. The main stress of the learned counsel was that the default was due to an act of clerk of Court which would be deemed to be an act of Court and in the light of principle that no one should be caused prejudiced by an act of the Court, the dismissal of suit was not legal. We have heard the learned counsel for the parties at length and considered the contentions raised by them in support of their respective stance. The trial Court on an application moved by the petitioners for dismissal of the suit for non‑compliance of the order dated 22‑12‑1992 by virtue of which the pre‑emptor was required to deposit the pre emption money, dismissed the suit. The Appellate Court in view of the plea taken by the respondent "that to comply with order of the Court, 1/3rd pre‑emption money was given to the clerk of the Court for deposit within the prescribed time but the said clerk instead of depositing the pre‑emption money in treasury, misappropriated the same and that this fact was immediately brought to the notice of the trial Court but no fresh order for deposit of the pre‑emption money was passed by the trial Court", while exercising powers under section 148, C.P.C. allowed the pre‑emptor to deposit pre‑emption money to the tune of Rs.50,000 and remanded the case for disposal on merits. The order for deposit of 1/3rd pre‑emption money is passed under section 24 of North West Frontier Province Pre‑emption Act, 1987 which reads under:‑‑ "Section 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 and for the remaining two‑third furnish bank guarantee to the satisfaction of the Court within such period as the Court may fix‑ Provided that such period shall not extend beyond thirty days of the filing of the suit: Provided further that if no sale price is mentioned in the sale deed in the mutation, the Court shall require the deposit of one third of the probable value of the property, and a bank guarantee for remaining two‑third of such probable value: (2) Where the plaintiff fails to deposit one‑third of the sale price or the probable value of the property and the required bank guarantee under subsection (1) within the period fixed by the Court; his suit shall be dismissed. (3) Where the plaintiff withdraws the sum deposited by him or the bank‑guarantee furnished by him under subsection (1), his suit shall be dismissed. (4) Every sum deposited under subsection (1) shall be available for the discharge of costs. . (5) The probable value fixed under subsection (1) shall not affect the final determination of the price payable by the pre‑emptor" This is mandatory for the Court to direct for deposit of 1/3rd of pre‑emption money as provided in section 24(1) ibid and under subsection (2) of the said section if plaintiff fails to deposit one third of the sale price, the suit shall be dismissed. The learned trial Judge passed the following order under section 24(1) of N.‑W.F.P. Pre‑emption Act, 1987:‑‑ It is the requirement of the law that if the pre‑emptor satisfies the condition with regard to deposit of 1/3rd of pre‑emption money, the suit will proceed and in case of committing any default in deposit of the pre‑emption money, the suit shall be dismissed. If pre‑emptor is not vigilant in exercising the right of pre‑emption, no discretion can be exercised in his favour and he must face the consequence of dismissal of suit as the Court in such cases is not supposed to condone the default while exercising power under section 148, C.P.C. by taking away the valuable right of opposite party. The perusal of the order by virtue of which suit was dismissed, would show that the failure of respondent to deposit 1/3rd of pre‑emption money was not due to an act of the Court rather it was the result of his gross negligence. The order in question is read as under:‑‑ Learned counsel representing the respondent has attempted to argue that the pre‑emptor was prejudiced by the act of an official of the Court who without depositing the pre‑emption money in the bank placed on record fake receipt of deposit, therefore, it was a fit case for extension of time for deposit of pre‑emption money. We may point out that the pre‑emptor was required to deposit the amount in the treasury and place on record the receipt of deposit which was neither the responsibility of the concerned official nor there was any such arrangement of the Court. The respondent for his own convenience handed over the amount to the clerk of the Court for deposit without any order of the Court, therefore, it would be incorrect to say that respondent was made to suffer due to an act of Court We may observe that, if an act of an official of Court is not related to his official duty, it is not an act of Court. There is nothing on record to show that either the learned trial Judge directed the respondent for deposit of money through the official of Court or it was the official function of the clerk of the Court. The record shows that order relating to deposit of 1/3rd pre emption money was passed on 27‑12‑1992 and a bank receipt of deposit was placed on record within the target date but later it transpired that without depositing the pre‑emption money a fake receipt was placed on record and in consequence thereto, the suit was dismissed under subsection (2) of section 24 of the N.‑W.F.P. Pre‑emption Act 1987. The plea of vigilance was not available to the respondent as he knowingly handed over the amount to the clerk for deposit and was negligent in verifying from the record about the deposit and thus the respondent by his conduct would be estopped to plead his vigilance. There is no denial to the principle that no party should be made to suffer on account of an act of Court but if such act is not describable as an act of the Court, it would not be a valid ground for exercise of discretionary power in favour of defaulting party. The failure of the respondent for seeking permission to deposit 1/3rd pre‑emption money in the intervening period, would be another negligent act on his part. The Court was not supposed to pass a fresh order for deposit of 1/3rd of pre‑emption money and on expiry of the period given for deposit of 1/3rd pre‑emption money, the suit would automatically stand dismissed without a formal order. The grant of further time to deposit 1/3rd of pre‑emption money after dismissal of suit under subsection (2) of section 24 of the Act in the given facts and the explanation offered by the respondent was not legal. There is no cavil to the proposition that the Appellate Court was competent to extend time for deposit of the pre‑emption money under section 148; C. P. C. but such, discretion could not be exercised to defeat the very purpose of law rather such discretion can only be exercised in exceptional circumstances and cases. The failure of a plaintiff to deposit 1/3rd of pre‑emption money within the time, if given by the Court, is found due to an error or act of the Court and is not intentional, the plaintiff will definitely be entitled for extension of time under section 148, C.P.C. but if the default in deposit was due to fault of the plaintiff himself, there would be no justification to exercise discretion in his favour. The necessary element to judge the diligence of a litigant is the degree of care taken by him and manner in which he conducted himself and thus the question whether or not a person acted diligently and was not negligent, would depend on the circumstances of each case and cannot be determined on the basis of any settled principle. Having considered the case of respondent in the light of principle of reasonable care, we find him negligent as he was not vigilant in the matter, therefore, the enlargement of the time in exercise of the discretionary jurisdiction under section 148, C.P.C. for deposit of 1/3rd of preemption money after dismissal of suit by condoning the fault of pre emptor who failed to deposit the 1/3rd of pre‑emption money in compliance of the order of Court in absence of a good reason will amount to defeat the law and cause injustice to the opposite party. For the foregoing reasons; we while converting this petition into an appeal set aside the judgment of the High Court as well as the Appellate Court and restore the order of dismissal of suit passed by the trial Court. This appeal is allowed with no order as to costs. M.H./R‑56/S Appeal allowed.