2009 PLP 837 (MLD)

ZIA-UD-DIN KHATTAK, J.

Jan Muhammad, plaintiff (respondent herein) filed Suit No.901 of 2005 on 12-7-2005 for possession through pre-emption of land detailed in the plaint. Vide order sheet, dated 12-7-2005, learned Civil Judge-VI, Mansehra directed the plaintiff/pre-emptor to deposit Rs.61,670 as 1/3rd of the pre-emption amount in the Court before 26-7-2005. On this date, the learned Presiding Officer was busy in connection with election duties and, therefore, the case was posted to 5-9-2005. The pre-emption amount (as directed) was not deposited. However, the plaintiff/pre-emptor on 28-7-2005 submitted an application to learned Senior Civil Judge, Mansehra seeking permission for deposit of the pre-emption amount. The learned Senior Civil Judge after obtaining report of the Moharrir concerned through his order, dated 28-7-2005 observed that since the plaintiff/pre-emptor had not deposited the pre-emption amount within the time fixed, therefore, the matter was left for the disposal of the trial Court. On 19-9-2005, on resuming the charge, the learned Civil Juge-VI, Mansehra vide order of even date dismissed the suit of the plaintiff pre-emptor on the ground of default in depositing the pre-emption amount within the stipulated period.

2. Against this, the plaintiff/pre-emptor filed Appeal No.177/13 of 2005. The learned Additional District, Judge-II, Mansehra, who seized of the case, after hearing the parties/their counsel vide judgment, dated 26-1-2006 extended the time for deposit of pre-emption amount and remanded the suit to the learned trial Court for decision on merits. Feeling aggrieved, Jehanzeb defendant/vendee (petitioner herein) has filed this revision petition under section 115, C.P.C.

3. Syed Sajjad Hassan Shah Advocate learned counsel representing the petitioner' contended that the learned appellate Court had no jurisdiction to extend time for deposit of the pre-emption amount in terms of section 24 of the N.-W.F.P. Pre-emption Act, 1987 as amended in 1992 and, as such, the impugned judgment, dated 26-1-2006 has materially prejudiced the interests of the petitioner/vendee.

4. Mr. Ahmed Farooq Khan Advocate learned counsel for the respondent/pre-emptor in reply supported the impugned judgment and maintained that the pre-emption amount was deposited within the prescribed time and even" otherwise the appellate Court below had the power to extend time for deposit of the pre-emption amount under section 148 C.P.C.

5. After hearing the learned counsel for the parties and on perusal of the record I find myself in agreement with the submission of learned counsel for the petitioner that the learned appellate Court could not have legally extended the time in view of subsection (2) of section 24 of the N.-W.F.P. Pre-emption Act, 1987 as amended in 1992. It makes obligatory for the Courts to dismiss the suit on the failure of the pre-emptor to deposit 1/3rd of the sale price within the period fixed by the Court. Section 24 of the N.-W.F.P. Pre-emption Act is reproduced below for convenience sake. "

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 within such period as the Court may fix: Provided that if no 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. (3) .. (4) .. (5) ..

6. Before amendment of section 24 by Act X of 1992, the Court had the power to extend the period not beyond 30 days of filing of the suit but under the amended section 24, there is no statutory limit within which the deposit has to be made and matter has been left to the discretion of the Court to fix time within which the deposit has to be made and its failure must result in the dismissal of the suit. By amending section 24 of the Act, only the words `thirty days' have been omitted and rest of the provision has been kept intact, which means that once a time is fixed the pre-emptor shall be bound to comply with, within the time so fixed, and neither the pre-emptor would be allowed to apply for further extension nor the Court will be competent to allow extension. It is not denied that the pre-emption right, being a feeble right, pre-emptor seeking to exercise such right was bound to perform and fulfil its requirements meticulously and any failure in that behalf would deprive him of success in getting a pre-emption decree.

7. Adverting to the question regarding application of section 148, C.P.C., I find that the submission made by learned counsel for the respondent is misconceived. It is not denied that the N.-W.F.P. Pre-emption Act is a special law vis-a-vis C.P.C. which provides procedure for adjudication of civil disputes generally, but Pre-emption Act, 1987 by itself provides procedure for certain matters. It is a recognized principle of law that special law shall prevail upon general law. The respondent cannot be allowed to take refuge under the provisions of section 148, C.P.C.

8. In the result, this civil revision is accepted, the impugned judgment, dated 26-1-2006 of learned Additional District Judge-II, Mansehra is set aside and the judgment and decree, dated 19-9-2005 stands restored. Parties to bear their on costs. H.B.T./69/P Petition accepted.