2001 PLP 543 (SCMR)

ABDUR REHMAN KHAN, J.

Appellants/defendants purchased the disputed land by registered sale-deed, dated 10-1-1996 where the sale price has been shown as Rs.66,95,

000. Plaintiff/respondent instituted suit for possession through pre-emption to respect of the Land in question and in the plaint recorded Rs.13,01,400 as sale consideration and the date of registered sale-deed was correctly shown as 10-1-1996. It is intriguing to note that it was not averred in the plaint that the sale price shown as Rs.66,95,000 in the plaint was wrong and collusive and that actually the price was the one as shown in the plaint. It is obvious that if the price to the sale-deed had been given in the plaint, then under the requirement of section 24 of the N.-W.F.P. Pre-emption Act, the Court was bound to have directed the plaintiff to deposit 1/3rd of the sale consideration as entered in the registered deed. In any case the learned trial Court by order, dated 11-2-1996 directed to deposit Rs.4,33,800 which is equal to 1/3rd of the price mentioned in the plaint. The appellants/vendees/defendants when appeared in Court in pursuance of the summons made an application for directing the plaintiff to deposit additional amount according to price given in the sale-deed in terms of section 24 of the N.-W.F.P. Pre-emption Act in order to make the deposit equal to Rs.22,31,666.34 as 1/3rd of Rs.66,95,000 the sale price as given in the deed. Accordingly, on 8-4-1996, the learned trial Judge ordered the plaintiff to deposit the remaining amount of Rs.17,97,866.65 before 6-5-1998 so that the deposit should come up to Rs.22,31,.666.34 being 1/3rd of the sale price shown in the sale-deed. This order of 8-4-1996, was challenged by the plaintiff in appeal before the learned District Judge. The appeal was dismissed on 5-5-1996 but at the same time the period of deposit of pre-emption amount was extended up to 13-5-1996. Plaintiff impugned this order, dated 5-9-1996, in Revision in the High Court which was dismissed in limine on 5-5-1996, but in spite of this dismissal the period for deposit was further extended up to 10-7-1996. The appellant applied for the review of the said order of the High Court to the extent of extending the time for deposit of pre-emption amount which was dismissed by the impugned judgment, dated 17-9-1997. Leave to appeal was granted to consider these points:-- (a) That in the plaint, the respondent deliberately with mala fide intention did not disclose that the sale consideration was A Rs.66,95,000 whereas a dis-statement was made that the sale consideration was Rs.13,01,400 in order to avoid deposit of 1/3rd of Rs.66,95,000, therefore, he approached the Court with unclean hands. (b) That the deposit of 1/3rd of the pre-emption money as required by law was intended to ascertain that the respondent/plaintiff in a pre emption suit had money to pre-empt the sale and he was prosecuting the suit bona fidely and the act of concealment of the real amount of consideration in the plaint would detract from the bona fides of the plaintiff. (c) That no appeal against the order of the trial Court, dated 8-4-1996 requiring the respondent to make up deficiency in the pre-emption money was maintainable as it was not an appealable order and the Lower Appellate Court while dismissing the appeal extended the time without giving any reason or justification without considering the conduct of the respondent who instead of complying with the order of the Court to make up deficiency in the pre-emption money, filed appeal which established that he was not prosecuting the pre emption suit bonafidely. (d) That on 9-5-1996 when the High Court dismissed the revision petition in limine of the Appellate Court granting him further time to make up deficiency in the pre-emption money, the time already allowed by the said Court had not yet expired who should have directed to comply with it but without application of judicial mind to the abovementioned facts and circumstances about mala fides of the respondent the time was further extended without notice to the petitioners whose rights were adversely affected as to get rejection of the plaint. (e) That since the High Court passed order by dismissing a revision petition in limine without notice tore petitioner, therefore, the only remedy available to them was to file a review application to get adjudication about the contentions raised by them as noted above on which there is no finding of the said High Court. (f) That no appeal was maintainable against the order, dated 8-4-1996 of the trial Court, therefore, the Lower Appellate Court in view of this shall be deemed to have passed order, dated 5-5-1996 under section 115, C.P.C. as if the said appeal was a revision petition as there is no other provision of law under which the said Appellate Court could exercise power in the matter, therefore, the second revision before the High Court barred under section 115(4), C.P.C. and this point was specifically raised not only in the review application but also in the argument which though was duly noted but no adjudication made in respect thereof., (g) That the question of exercise of inherent power by a Court as held by the High Court will arise only in the proceedings in which the same was passed were' maintainable under the law and since in this case, second revision petition was not maintainable in the High Court as such it was not vested with the jurisdiction to entertain the same, therefore, question of exercise of inherent power does not arise."

2. It was argued by the learned counsel appearing for the appellant that the order of the learned trial Court directing the plaintiff to make up the deficiency in the deposit of pre-emption amount was not appealable and, therefore, the order of the learned District Judge passed in appeal would be considered as an order in Revision and from this order no second revision was competent before the High Court and as such the order of the High Court extending time in exercise of its revisional power was without jurisdiction. In this context it was further submitted that the plaintiff in the High Court was not entitled to any discretionary relief. It was pointed out that the time fixed for deposit by the learned District Judge was to expire on 13-5-1996 while the High Court dismissed appeal/revision on 9-5-1996, therefore, the plaintiff had still five days to deposit the pre-emption amount and as such the High Court was not competent to extend this time. This extension of time by the High Court was also criticised on the ground that it was passed in absence of the appellant who had by then acquired vested right. The learned counsel relied on the following decided cases to support his view point:-- (i) Qadir Bux and others v. Kh. Nasim-ud-Din and others (1997 SCMR 1267) (ii) Muhammad Nawaz and others v. Muhammad Sadiq and another (1995 SCMR 105). (iii) Wahid Bakhsh v. Abdul Qayum and another.(1997 MLD 2945).

3. The learned counsel representing the respondent submitted that the appeal in this Court is not competent as it has not been filed against the order extending time for deposit. He also referred to Order 47 of the C.P.C. but was unable as to which clause of this Order supports his argument. It appears that the learned counsel was oblivious of the fact that in the matter of appeal this Court is not governed by Civil Procedure Code. He was unable to show how initially the petition and for that matter the present appeal was not competent under Article 185 of the Constitution which governs the petition for leave to appeal and appeal to this Court. He was of the view that the order passed in Revision had obtained finality. It was further argued that the Appellate Court and the High Court have correctly exercised the power of extending period under section 151, C.P.C. He relied on "Ch. Muhammad Yaqoob v. Nazim Hussain and 'others" (1995 CLC 1271).

4. We have considered the above submissions in the light of the relevant law, cited cases and the material on record. The provision of N.-W.F.P. Pre-emption Act which governs the present controversy between the parties is section 24 and the relevant portion of which reads:-- "(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 the 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. (2) Where the plaintiff fails to deposit one-third of the sale price or the probable value of the property within the period fixed by the Court, his suit shall be dismissed. " It could not be denied that the plaintiff knew about the sale price entered in the registered sale deed as he had mentioned the date of the sale deed by which the sale transaction was brought about, but he while acting fraudulently neither annexed the copy of the sale-deed with the plaint nor mentioned the sale price shown in the sale deed. There could be no doubt about it that the plaintiff being conscious of section 24 of the N.-W.F.P. ,Pre-emption Act, purposely and with mala fide intention did so, because in case he had disclosed the actual price mentioned in the sale-deed .then the trial Court in terms of the said section would have directed him to deposit one-third of Rs.66,95,

000. It is also interesting to note that when the sale price mentioned in the deed was brought to the notice of the Court by the defendants/vendees, and when he appeared in pursuance of the summons, the trial Court directed the plaintiff to make up the deficiency then instead of obeying the order he filed appeal against the said order. It could not be controverted that the said order was not appealable, but still the learned District Judge exercised appellate power and also extended time. As no appeal was competent against the deposit order of the trial Court, the order of the Appellate Court will be deemed to have been passed in the exercise of revisional power, if it was otherwise, competent to do so. In such a case no second revision could lie before the High Court. However, the High Court heard the revision and at the same time while rejecting it extended further period of deposit of pre-emption amount. It is important to note here that the High Court dismissed the revision petition on 9-5-1996 and the date fixed by the learned District Judge for deposit was to expire on 13-5-1996, meaning thereby that still five days were available to the plaintiff for deposit of pre emption amount. But without having taken into consideration this fact that High Court while dismissing the revision petition again extended this time up to 10-7-1996. It is thus obvious that the plaintiff in a mala fide and motivated way intentionally floated the mandatory provision of law and the District Judge as a revisional Court, by exercising the discretion extended period rather placed premium on the fraudulent conduct of the plaintiff while the High Court was not competent to exercise such jurisdiction as second revision was not competent before it. Even if it was competent to exercise jurisdiction in the matter, then it should have taken all the circumstances into consideration before using discretionary power. Discretion should be exercised in a manner to advance justice and not to violate statutory provision. The learned counsel appearing for the respondent could not controvert the arguments that the, conduct of his client has throughout remained objectionable as he purposely concealed the relevant document from the Court and did not narrate true facts in his plaint so as to achieve his object. It was held in Muhammad Nawaz v. Muhammad Siddique and others (1995 SCMR 105):-- "If the sole object of a pre-emptor in filing of an appeal is to delay deposit of the pre-emption money, about the correctness of which there cannot be any reasonable doubt, to a reasonable man, in such a case an Appellate Court may decline to extend the time." Consequently, we accept this appeal, set aside all the orders impugned in the appeal and dismiss the suit of the plaintiff for his failure to deposit, the pre emption amount in accordance with law. Costs of litigation will be borne by the respondent. Q.M.H./M.A.K./S-86/S Appeal allowed.