2022 PLP 2013 (CLC)

MUHAMMAD IJAZ KHAN, J.

Through this single order, I intend to decide this petition as well as the connected W.P No.98-M / 2022 and W.P No. 99-M/2022 as common question of law and fact is involved in the same.

2. Precisely the case of the petitioner is that he filed a suit for possession through enforcement of the right of pre-emption as against a sale transaction, which was made in favour of respondent No.1/defendant/ vendee vide mutation No. 2090 attested on 27.11.2020.

3. The record would reveal that the aforesaid plaint was presented to the learned trial Court on 15.06.2021 and after registration of the suit in the relevant register, the learned trial Court vide order sheet No. 3 of even dated directed the petitioner to deposit 1/3rd of the preemption amount (Zar-e-Soim), however the sale consideration was neither mentioned in the plaint nor in the notice Talb-i-Ishhad nor the copy of the mutation was annexed with the plaint, therefore petitioner was directed to produce the copy of the mutation and the date was adjourned to 02.07.2021. On 02.07.2021, the present petitioner was represented by his counsel, however, since the Presiding Officer was busy in some recruitment process, therefore the case of the petitioner was adjourned to 17.07.2021. On 17.07.2021, the petitioner was again represented by his counsel and the case was adjourned for 05.08.2021. The order sheet dated 05.08.2021 and then 13.09.2021 would show that the present petitioner as well as his counsel remained absent and it was on 25.09.2021 i.e. the 100th day of filing the suit when the learned trial Court passed the impugned order, whereby the suit filed by the present petitioner was dismissed for non-deposit of 1/3rd of preemption amount (Zar-e-Soim) within 30 days of the filing of the suit. The petitioner challenged the aforesaid order before the learned District Judge/Zilla Qazi, Swat, however the same was also dismissed vide the impugned order dated 06.11.2021. Through the instant petition, the petitioner has challenged the aforesaid two orders respectively dated 25.09.2021 and 06.11.2021.

4. Arguments of learned counsel for the petitioner were heard in detail and the record perused with his able assistance.

5. Before dilating upon the legal aspect of this case, it would be relevant to mention here that petitioner/plaintiff has never appeared before the learned trial Court in person and throughout the proceedings he has been represented by his counsel. Since, the controversy involved in this petition revolves around the interpretation of Section 24 of The Khyber Pakhtunkhwa Preemption Act, 1987, therefore the same is reproduced below for ready reference; "

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 or in the mutation, the Court shall require the deposit of one-third of the probable value of the property, and a bank guarantee for the remaining two-third of such probable value: Provided also that the plaintiff may, in lieu of bank guarantee, deposit the required amount in cash. (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." The bare perusal of the aforesaid section would reveal that the Court is bound to require the pre-emptor to deposit 1/3rd of the sale of the property sought to be pre-empted within a period left to the discretion of the Court, however, the first proviso has restricted this discretion of the Court that same should not be beyond 30 days from the filing of the suit, which means that the same has to be required from the pre-emptor to be deposited from the date of filing the suit up to the 30th day but in no circumstances, the Court is left with any discretion to allow the pre-emptor to make deposit of the Zar-e-Soim beyond the period of 30th days.

6. The language of first proviso would reflect that the time for deposit of shall not extend beyond 30 days of the filing of the suit. As per Oxford English Dictionary twelfth edition, the word "beyond" means a degree where a specified action is impossible. The "filing of the suit" has not been defined under the Pre-emption Act, 1987, however the same would definitely mean "the day when the Presiding Officer after removal of all office objections direct formal registration of suit by entering it in the institution register." As per Black's Law Dictionary Tenth Edition, the word "file" means to deliver a legal document to the Court Clerk or record custodian for placement in the official record. Likewise, Order IV, Rule 1(1), C.P.C. provides that every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf and Rule 2 of the same Order IV, C.P.C., requires that every plaint presented to the Court shall be entered and numbered in every year according to the order in which the plaint is admitted in a book, which is called the register of civil suits. Similarly, as per the explanation of Section 3 of the Limitation Act, 1908, a suit is instituted, in ordinary cases, when the plaint is presented to the proper officer.

7. Keeping in view the aforesaid interpretation of first proviso to Section 24(1) of The Pre-emption Act when the present plaint was presented on 15.06.2021, the deposit of the pre-emption amount was required to be made within 30 days i.e. up to 15.07.2021, if not earlier, as directed by the trial Court. The record of the present case however would reveal that when the instant suit was filed on 15.06.2021, the petitioner/pre-emptor was directed by the learned trial Court to deposit 1/3rd of the pre-emption amount in the following words:- The aforesaid order sheet shows the clear intention of the learned trial Court that keeping in view the statutory restriction that it has to direct the pre-emptor to deposit 1/3rd of the pre-emption amount within 30 days from the filing of the suit, therefore on the very first day, he directed the pre-emptor to deposit the pre-emption amount and simultaneously directed to provide copy of the mutation and the date was adjourned to 02.07.2021, which obviously means that within 30 days of filing the suit and under the assumption that if on 02.07.2021, the petitioner produced the mutation then it would be in a position to direct the pre-emptor to deposit 1/3rd of the pre-emption specific amount mentioned in the mutation, however the response and conduct of the pre-emptor was indolent, lethargic, oblique and regrettable as on one hand he has never bothered to attend the Court in person right from the date of filing the suit and on the other hand he regularly remained absent on 02.07.2021, 17.07.2021, 05.08.2021, 13.09.2021 and 25.09.2021 and as such the learned trial Court was having no other option but to press into service subsection (2) of Section 24 of the Pre-emption Act by dismissing the suit of the petitioner/ plaintiff for non-deposit of the 1/3rd pre-emption amount, on the 100th day of the filing of the suit.

8. The attitude and conduct of the petitioner / pre-emptor would show that he has never been serious to comply with the mandatory requirement of the law as though he was required under the law to deposit 1/3rd of the pre-emption money within 30 days of the filing of the suit, however, the order sheets of the learned trial Court would reveal that he has never turned up to the Court what to speak of his readiness to deposit of 1/3rd of the pre-emption money for more than 100 days, when ultimately on 25.09.2021 the learned trial Court passed the impugned order.

9. The purpose behind the first proviso of Section 24 of the Pre-emption Act (where the pre-emptor is required to deposit 1/3rd of the pre-emption money not beyond 30 days) is to protect the vendee from frivolous litigation and also to ascertain the financial capacity of the intending pre-emptor to purchase the property sought to be pre-empted at the time when the property was being sold, keeping in mind the period of such deposit which would commence from the date of filing of the suit. Definitely it is all-around to keep a check on the pre-emptor so that he may not prolong the deposit of 1/3rd pre-emption amount and as such any relaxation in the same would amount to frustrate the very purpose of the first proviso to Section 24 (1) of the Act of 1987. In the case in hand, the conduct of the petitioner/plaintiff appears to be that he has just posted/filed the pre-emption suit without caring for his corresponding statutory obligations which are to be performed within the period.

10. During the course of arguments, the main plea of the petitioner was that since the Court has not directed him to deposit a fixed amount, therefore the penal consequences of subsection (2) of Section 24 of the Pre-emption Act, 1987 could not be pressed against him, appears to be misconceived as this fault too could not be attributed to the Court as it was the duty of the pre-emptor to produce the mutation, which he has pre-empted or at least he should have been disclosed a probable amount of the suit property, so that the Court may be in a position to order for deposit of a fixed amount. The record appended with this petition would reveal that though the petitioner/plaintiff has pre-empted Mutation No.2090 attested on 27.11.2020 but copy of the same was not annexed with the plaint and the same has now appended for the first time before this Court with his petition. The aforesaid conduct of the petitioner/pre-emptor would show that he has never been vigilant in pursing of his case and to comply with the mandatory provision of law.

11. The mandatory nature of Section 24 of the Pre-emption Act, 1987 qua the deposit of 1/3rd pre-emption amount, the strict observance of 30 days period and calculation of this period, discretion of the trial Court in extension of this period and its fatal nature in case of its non-compliance has been remained a favourite subject of the Hon'ble Apex Court. In the case of Hamza Sheraz and another v. Riaz Mehmood (deceased) through L.Rs. reported as PLD 2022 Supreme Court 3, the pre-emptor was required to deposit 1/3rd pre-emption amount, which came to 5,33,334.35/-, however he deposited an amount of Rs.5,33,000/- and thus there was a shortfall of Rs. 334.35/- only but his suit was dismissed for such a deficiency. Similarly, in the case of Malik Tariq Mehmood and others v. Ghulam Ahmad and others reported as PLD 2017 Supreme Court 674, a suit was presented by the pre-emptor for enforcement of pre-emptory rights to the trial Court on 11.08.2006, which was adjourned to 02.09.2006. On 02.09.2006, the Court issued summons to the other side and directed the pre-emptor to deposit 1/3rd pre-emption amount zar-e-soim and the case was adjourned to 11.09.2006. On 07.09.2006, an application was moved by the pre-emptor for extension of time for deposit of the 1/3rd pre-emption amount, which came up before the trial Court on 11.09.2006, and the Court extended the time to the pre-emptor till 16.09.2006. This extension in time beyond the period of 30 days from the date of institution of the suit led the vendee to file an application under Order VII, Rule 11, C.P.C, which application was dismissed by the trial Court but appeal filed there-against was accepted, whereby the suit of pre-emptor was dismissed, however, the pre-emptor filed a writ petition before the Lahore High Court, which was allowed and thereafter, the vendee reached the Hon'ble apex Court and the Hon'ble apex Court after interpreting Section 24 of the Pre-emption Act held in categorical terms that no extension in time beyond the period of 30 days from the date of filing the suit could be granted to the pre-emptor and accordingly the suit filed by the pre-emptor was dismissed. In the case of Raja v. Tanveer Riaz and others reported as PLD 2014 Supreme Court 466, the pre-emptor filed the suit on 10.07.1994 and on the same day he was directed to deposit the 1/3rd pre-emption amount within 30 days, however, the pre-emptor deposited the said amount on 09.08.1994 i.e. just one day beyond 30 days. The vendee agitated that the deposit has been made beyond 30 days, therefore the suit may be dismissed. His this plea did not find favour before the trial Court, however on appeal, he succeeded and the suit of pre-emptor was dismissed. In revision before the High Court, the order of appellate Court was maintained, however when this controversy landed before the Hon'ble Apex Court, where it was held that though the day on which the Courts direct the pre-emptor to deposit 1/3rd pre-emption amount is to be excluded from 30 days, however, by exclusion of such day, the period of 30 days should not exceed of the same. In the case of Hasnain Nawaz Khan v. Ghulam Akbar and another reported as PLD 2013 Supreme Court 489, the pre-emptor after filing the suit challenged the sale price of the suit property by saying that an inflated and exaggerated amount of Rs. 8,00,000/- has been shown in the mutation, as per his estimate the same is Rs. 95,000/-. This plea of the pre-emptor was not acceded by the trial Court and he was directed to deposit Rs. 2,66,667/- within 30 days. This order was challenged by the pre-emptor through a revision petition, which was accepted by the revisional Court on the ground that sufficient material was available on file to show that the vendee has shown an inflated sale consideration. This order was challenged by the vendee before the High Court in a writ petition, which was accepted and the order of revisional Court was set aside and that of the trial Court was restored. This order of the High Court was challenged by the pre-emptor before the Hon'ble Apex Court in the instant case, where it was held that the trial Court is obliged and duty bound to require the plaintiff-pre-emptor to deposit with the Court 1/3rd of the sale price of the property pre-empted, the period, however, is left to the discretion of the Court but this is not unbridled rather the same is discretion circumscribed by a span of 30 days from the date of institution of the suit, and the Court under no circumstances has any discretion to allow the plaintiff or require him to make the deposit beyond the period of 30 days from the filing of the suit, as a clog in this behalf has been placed by the first proviso to the section, and thirty days time, for all intents and purposes" is the upper and the maximum limit.

12. During the course of arguments, learned counsel for the petitioner was also confronted that through the subject suit, he has pre-empted a sale transaction which was executed through a sale Mutation No. 2090 attested on 27.11.2020, whereas the instant suit was filed on 15.06.2021 i.e. after 199 days and thus apparently as per Section 31 of the Pre-emption Act, his suit is time barred, he was unable to wriggle out of the same specially when judgments of the Hon'ble apex Court reported as 2000 SCMR 1305 and PLD 2014 Supreme Court 428 were brought into his notice, where a pre-emption plaint filed beyond the period of limitation was rejected by the trial Court and those orders were upheld by the Hon'ble Apex Court. In the former referred judgment, it was held by the Hon'ble Apex Court that:- "The explicit and mandatory provisions of section 31 of the Act leave no room for doubt that in case of a sale effected through a registered sale deed the period of one hundred and twenty days shall be computed from the date of registration of the sale deed. The contention that if the Registrar falls to issue public notice envisaged by the mandatory provisions of section 32 of the Act the period of limitation is to be computed from the date of knowledge by the pre-emptor is misconceived. Such a provision is neither contained in section 31 of the Act nor can be read into it in view of settled law that Court cannot supply 'casus omissus'."

13. It is always the duty of the Court to apply correct law to the lis of which it is seized of. In this regard, judgment of the Hon'ble apex Court rendered in the case of Chairman, NAB v. Muhammad Usman and others reported as PLD 2018 Supreme Court 28 would be relevant, which is reproduced below:- "In our considered view, the learned Division Bench of the Peshawar High Court through the impugned judgment has certainly overstepped its jurisdiction vested in it under Article 199, probably due to lack of proper assistance at the bar, however, one cannot ignore the fundamental principle relating to administration of justice that law is written on the sleeves of the Judges and it is the primary duty of a Judge to apply the correct law to a case before it and even the party is not bound to engage a counsel for telling the Court how a particular law is to be applied and how the jurisdiction is to be exercised thus, the impugned judgment being not sustainable in law, is set at naught." Similarly, in the case of Government of N.-W.F.P. and others v. Akbar Shah and others reported as 2010 SCMR 1408, the Hon'ble apex Court has held that it is primarily the duty of the Court and other adjudicating forums to decide the lis before them in accordance with law. Further reliance in this regard may also be placed on the following judgments:- i. Land Acquisition Officer and Assistant Commissioner, Hyderabad v. Gul Muhammad through Legal Heirs (PLD 2005 Supreme Court 311); ii. Ali Raza v. Muhammad Shoaib and 2 others (2014 CLC 1343).

14. Through the instant writ petition, the petitioner has challenged the order of the learned Civil Judge/Illaqa Qazi-VI, Swat and that of revisional Court and this Court in its writ jurisdiction could only intervene if the orders passed by the Courts below suffer from any jurisdictional defect or any patent illegality, however, learned counsel for the petitioner could neither allege nor bring into the notice of this Court any jurisdictional defect or other illegality in the impugned orders and thus the impugned orders could not be disturbed in the instant constitutional petition.

15. In view of the above legal and factual position, this and the connected W.P. No. 98-M/2022 and W.P. 99-M/2022 being bereft of any legal substance and thus the same are hereby dismissed in limine. ZH/129/P Petitions dismissed.