P L D 1980 Lahore 104 (PLP)

Two suits for pre-emption were filed in respect of the land involved in this regular second appeal-one by respondent No. 1, Muhammad Aslam and the other by the appellants, Ismail and another. The suit of the said respondent was dismissed by the trial Court but the rival suit brought by the appellants was decreed on payment of Rs. 12,

000. This amount was deposited by the appellants in terms of the decree passed in their favour.

2. Feeling aggrieved by the dismissal of his suit, the respondent No. 1 went in appeal before an Additional District Judge. The vendees in the sale in dispute, namely, Din Muhammad and Khan Muhammad, who are respondents Nos. 2 and 3 in the present appeal, also filed an appeal against the judgment and decree passed in favour of the appellants. Both these appeals were decided together. The appeal filed by respondents Nos. 2 and 3 was dismissed but the appeal of respondent No. I was accepted and his suit was decreed on the payment of the said amount. The learned Additional District Judge directed that respondent No. I shall deposit the pre-emption money before a stipulated date and if he failed to do so, the decree in favour of the appellants herein shall remain operative. Respondent No. 1, however, deposited the pre-emption money within the time allowed by the first appellate Court.

3. Being dissatisfied with the judgment and decree of the learned Additional District Judge in favour of respondent No. 1, the appellants preferred the appeal in hand. After the filing of this appeal, on 3rd -May 1966, the appellants made a petition (C. M. No. l.-C/66) for permission to withdraw the amount, of Rs. 12,000 deposited by them with the trial Court. They, however, actually, withdrew the said amount on 1st June 1966, before the passing of any order on their said petition. Subsequently, they made another petition (C. M. No. 4124-C/72) for permission to redeposit the pre-emption money which they were allowed to do, vide order of 4th December 1972, at their own risk and responsibility without prejudice to the right of the respondents. Thereafter, Respondent No. 1 made C. M. No. 1159-C/79 praying that since the appellants had withdrawn the pre-emption money without the permission of the Court their appeal may be dismissed under subsection 5(a) of section 22 of the Punjab Pre-emption Act, 1913, as the same was incompetent.

4. I have heard the learned counsel for the parties, at considerable length on the question as to whether the instant appeal is liable to be dismissed on account of the withdrawal of the pre-emption money by the appellants without the leave of this Court.

5. Learned counsel for respondent No. 1, hereinafter referred to as the respondent, contended that on account of the withdrawal of the preemption money, including one-fifth of the sale price deposited under subsection (1) of section 22 of the Punjab Pre-emption Act, by the appellants without the permission of the Court, their appeal could not proceed and was liable to be dismissed under clause (a) of subsection 5 of section 22 of the said Act. According to him the provisions of clause (a) of section 5 are mandatory and this Court is, therefore, bound to dismiss the suit or appeal in the event of the withdrawal of one-fifth of the sale price deposited under subsection (1) of section

22. He relied on Paras Ram v. Dalpat Rai (1), Prem Singh v. Lakha Singh and others (2) and Abdul Ghafoor and another v. Mst. Iqbal Begum and another (3) to support his plea.

6. In the case of Paras Ram the suit was dismissed as the plaintiff preemptor had withdrawn the money deposited under section 22 of the Punjab Pre-emption Act. In Prem Singh's case it was ruled that where money ordered to be deposited by the trial Court is withdrawn op the dismissal of the suit, the appeal shall be dismissed although the appellate Court itself had not ordered such deposit. In the case of Abdul Ghafoor and another it was observed (at page 588 of the report) that when the pre-emptor withdraws the pre-emption money, his suit or appeal, as the case may be, has to be dismissed.

7. In reply to the arguments advanced by the learned counsel for the respondent, it was contended by the learned counsel for the appellants that the withdrawal of the pre-emption money by the appellants did not affect the maintainability of their present appeal: In this connection he placed reliance on Gokal Chand v, Sanwal Das, Sohan Lal and others (4), Qudrat-un-Nissa Bibi v. Abdul Rashid and others (5), Sanwal Das v. Joigo Mal and others (6), Mt. Bibi Aisha v. Shadi Khan (7), Kisan Diwaloo Mali v. Ganga Bat (8) and Muhammad Ramzan v, Muhammad Khan and another (9). The cases of Qudrat-un-Ntssa and Muhammad Ramzan are of no avail to the appellants because in those cases the pre-emption money was withdrawn by the vendees and not by the pre-emptors as done in the cases of Gokal Chand and Sanwal Das, the Court bad permitted the pre-emptors, to withdraw the pre-emption money which the appellants before me did not care to obtain 'before withdrawing that money. In the case of Mt. Bibi Aisha also the preemptor had withdrawn the pre-emption money with the permission of the Court but their Lordships of the Judicial Commissioners' Court observed that even if it had been withdrawn without the permission of the Court, the appellant was not debarred from prosecuting the appeal. In the case of Kisan Dewaloo Mali the holder of a pre-emption decree deposited the pre-emption money within the prescribed period but withdrew it on reversal of decree in appeal. In second appeal, the decree of the trial Court was restored. It was ruled by the Nagpur High Court that on the restoration of the decree of the trial Court the pre-emptor was entitled to re-deposit the pre-emption money. (1) 54 1 C 268????????????????????????????????????????????? (2) A I R 1929 Lab. 387 (3) P L D 1975 Lab. 524 ????????????????????????????? (4) I L R 5 Lab. 109 (5) 1 L R 48 All. 616???????????????????????????????????? (6) 79 1 C 448 (7) A I R 1935 Pesh. 148 ???????????????????????????? (8) A I R 1939 Nag. 229 (9) 1972 S C M R 442

8. The position therefore, boils down to this that the contention of the learned counsel for the appellants that if a pre-emptor-appellant withdraws the pre-emption money without the permission of the Court it would not entail the dismissal of his appeal derives support from the case of Mt. Bibi Aisha, decided by the Judicial Commissioner's Court at Peshawar, and the case of Kisan Diwaloo Mali, decided by the Nagpur High Court. As against this, according to the cases of Paras Ram, Prem Singh and Abdul Ghafoor and another, all decided by the Chief Court/High Court of Lahore, the suit or appeal will be liable to be dismissed if the pre-emption money is withdrawn by the pre-emptor without the leave of the Court. Surely, the Lahore view is in consonance with the letter and spirit of the provisions of clause (a) of subsection (4) of section 22 of the Punjab Pre-emption Act, which are of mandatory nature. I, therefore, with respect, follow the Lahore view and including hold that since the appellants withdrew the pre-emption money, one-fifth of the sale price, without the permission of this Court, their appeal, deserves to be dismissed.

9. It was urged by the learned counsel for the appellants that the respondent had taken exception to the withdrawal of the pre-emption money after a long time and, therefore, the said objection was not entertainable. The a objection raised by him involves a question of law and therefore, it could be raised at any stage of the proceedings. In this view of the matter, I cannot brush aside the- said objection on the ground of delay. `

10. Lastly, it was submitted by the learned counsel for the appellants that since, under subsections (1) and (2) of section 22 of the Punjab Pre emption Act, the Court has the discretion to extend time for deposit of one-fifth of sale price, and the appellants have already re-deposited the preemption money, this Court may condone the lapse on their part, namely, the earlier withdrawal of pre-emption money without the permission of the Court. I have no quarrel with the proposition that, under subsections (1) and (2) o section 22, the Court can extend time for deposit of one-fifth of the sale price but it is doubtful that if the aforesaid amount is deposited and then withdrawn by the pre-emptor without ,the permission of the Court this lap can also be overlooked by the Court. As indicated earlier, in the present case, the appellants applied for permission to withdraw the pre-emption money but without awaiting the orders of the Court thereon, they withdrew the money from the trial Court. Thus, they took a calculated risk and also gave an affront to the Court. Why the Court should, therefore, protect them when the are threatened with the legal consequences of what they did especially when a valuable right has accrued to the opposite-party, due to them conduct in question. In the circumstances, even if this Court has the discretion to condone the above shortcoming of the appellants, I would not like to exercise the discretion in their favour.

11. In result, I hold that the appeal cannot proceed on account of the withdrawal of pre-emption money, including one-fifth of the sale price, by the appellants, without the permission of the Court. It is, therefore, dismissed with costs. U. Y. M. ???????????????????????????????????????????????????? Petition dismissed.