2004 PLP 437 (YLR)

3. I have heard the arguments and perused the record.

4. The case of petitioners is that they had purchased suit-land through decree' of Civil Court dated 18-1-2000 (in suit for specific performance) for a consideration of Rs.12,00,000, therefore it was necessary for the respondent/plaintiff to deposit Rs.4,00,000 as 1/3rd of the sale price, but he failed to deposit the same, therefore, his case was liable to be dismissed. On the other hand the case of respondent/plaintiff is that actually petitioners/defendants had purchased suit-land for Rs.4,00,000 but the agreement to sell was for Rs.6,00,000, therefore, he had rightly deposited Rs.2,00,000 as 1/3rd of sale price. Learned trial Court observed that plaintiff had pleaded that actual amount of consideration was Rs.6,00,000 and defendants/petitioners had wrongly mentioned the same as Rs.12,00,000 and that it appeared that suit brought by Muhammad Yousaf etc. (petitioners/defendants) against Latif Khan (vendor) had been decreed for a consideration of Rs.6,00,

000. Also that defendants had not produced copy of sale deed which was registered as a result of decree dated 1-10-1999 and that plaintiff had already deposited 1/3rd of the sale price (Rs.6,00,000), therefore, application brought by petitioners/defendants had no force. So it is clear that learned trial Court considered the deposit of Rs.2,00,000 as 1/3rd of sale price to be proper. Even otherwise it was necessary for the learned trial Court to pass order for depositing a specific amount as 1/3rd of the sale price. Learned counsel for the petitioner admits that learned trial Court had not specified the amount to be deposited as 1/3rd of the sale price in the impugned order. It is well-settled that act of Court shall not prejudice 1A any party. Reliance can be placed on Ladha Khan and others v. Mst. Bhiranwan 2001 SCMR

533. As stated earlier Court had not specified amount and considered Rs.2,00,000 to be proper compliance of its order, therefore, there was no reason to reject the plaint.

5. It is pertinent to note that, if sale price appears to be inflated, the Court can in that case competently require deposit of 1/3rd of the probable value of property. Section 24 of Punjab Pre-emption Act reads as under:-- "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 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 or in the mutation, or the price so mentioned appears to be inflated, the Court shall require deposit of one-third of .the probable value of the property. (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. (3) Every sum deposited under subsection (1) shall be available for the discharge of costs. (4) The probable value fixed under subsection (1)' shall not affect the final determination of the price payable by the pre-emptor." So impugned orders are proper. Even otherwise when parties do not agree to the sale price, the Court has to determine the same. Section 27 of Punjab Pre-emption Act reads as under:-- "Where the parties do not agree to the price at which the pre-emptor shall exercise his right of pre emption, the Court shall determine whether the price at which the sale purports to have taken place was fixed in good faith or paid, and if it finds that the price was not so fixed or paid, it shall fix the market value of the property as the price to be paid by the pre emptor. (2) If the Court finds that the price was fixed in good faith or paid, it shall fix such price to be paid by the pre-emptor. " As such actual payment (sale price) is still to be determined by the trial Court after recording evidence of the parties, therefore, in the circumstances or the case plaint could not be rejected. The perusal of judgment dated 11-2-2002 shows that learned Additional District Judge decided the revision petition after appraisal of entire material available on record and the said order is just and proper. There is no, illegality or infirmity in the impugned judgments, so as to warrant interference by this Court in writ jurisdiction.

6. The upshot of the above discussion is that this writ petition has no force and the same is accordingly dismissed. No order as to costs. M.H./M-2320/L Petition dismissed.