2012 PLP 1371 (MLD)

MAZHAR ALAM KHAN MIANKHEL, J.

The petitioner herein, being a plaintiff of a pre-emption suit with regard to a house, situated in Bunrr, Mingora Swat, was non-suited by the Courts below only on the question of non-performance of Talbs in accordance with law and non-deposit of 1/3rd of pre-emption amount after filing of suit under section 24 of the N.-W.F.P. Pre-emption Act, 1987, when the learned Civil Judge/Illaqa Qazi, Swat, dismissed his suit, vide his judgment and decree dated 18-12-2009 and his appeal thereagainst also met the same fate when Additional District Judge-IV/Izafi Zila Qazi, Swat dismissed his appeal, vide his judgment and decree dated 8-4-2010. Hence, present revision petition.

2. The learned counsel for the respondents, at the very outset, raised a preliminary objection regarding the maintainability of the instant revision petition by submitting that instead of this revision petition, it should have been the regular first appeal by keeping in view the valuation of the suit. The learned counsel besides his submissions in main revision petition, also replied to the preliminary objection raised by the learned counsel for respondents by submitting that valuation of the suit rightly or wrongly fixed by the plaintiff/petitioner for the purposes of court fee and jurisdiction was not objected to by the defendant/ respondents at the time of filing of their written statement and the trial Court neither framed any issue nor rendered any finding in this regard, so the valuation so fixed by the plaintiff/petitioner was not altered. So, in this view of the matter, the forum of appeal to be the District Judge was rightly determined by him instead of this court. He further submitted that the learned Appellate Court has dealt with the matter quite in accordance with law which has never been challenged by the respondents, so they are estopped to raise said objection once again. As far as his submission on merits is concerned, he submitted that the findings on the question of performance of Talbs and deposit of pre-emption amount are incorrect and against the law which requires reversal. As against that, the learned counsel for vendee/respondent submitted that the plaintiff/petitioner failed to prove the factum of Talbs strictly in accordance with law and in spite of the fact that he was in the knowledge of actual sale consideration embodied in the registered deed, he failed to deposit the 1/3rd of the sale consideration as required under section 24 of the N.-W.F.P. Pre-emption Act, 1987, so, his suit was rightly dismissed by the Courts below.

3. Learned counsel for the parties were heard and record of the case was perused.

4. Perusal of the record would reveal that no doubt, the plaintiff/ petitioner had fixed the valuation of the suit as Rs.200 for the purposes of court fee and jurisdiction in spite of the fact that the sale in question was with regard to a house and it should have been in accordance with section 7(vi) of the Court Fee Act, 1870 but on the other hand, the defendant replied to Para-9 of the plaint in general by submitting that the suit of the plaintiff is liable to dismissal on account of non-affixation of court fee. Similarly no issue in this regard was framed by the trial Court and accordingly this suit was dismissed on merits without touching this aspect of the case. Similarly, objection was raised before the Appellate Court by the vendee/respondent by also questioning the pecuniary jurisdiction of the Appellate Court but the Appellate Court by considering the legal position of the case, held it to be within its jurisdiction, as the valuation fixed by the plaintiff in his plaint was never altered by the trial Court. Though, computation of the court fee and valuation of the suit for the purposes of jurisdiction with regard to the suit property, which is a residential house, should must have been according to its market value as provided in section 7(v)(e) and (vi) of the Court Fee Act, ibid, but since the same was not altered by the trial Court, so appeal before the District Judge, in the circumstances, could be said to be within his jurisdiction as pecuniary jurisdiction of District Judge is always derived from the valuation made in the plaint under section 18 of the West Pakistan Civil Courts Ordinance, 1962. No doubt, the question of determination of valuation for the purposes of court fees under the Act, 1870, ibid, and valuation of the suit under the Suits Valuation Act, 1887 is the job of the Court whether pointed out by the party or not but at such a situation, when the two courts have decided the case on merits, remand of the case for this purpose would not be justifiable. So, to correct the record, the valuation is determined by this court. Hence, by keeping in view the actual market value of the subject matter, the valuation of the suit for the purposes of court fee and jurisdiction is hereby altered to Rs. Twelve lac and under section 7 of the Act, ibid, the petitioner is directed to deposit the court fee in accordance with law against this valuation within thirty days and in case of his failure, his suit shall be deemed to have been dismissed. Reliance in this regard can be placed on the cases of "Munawar Hussain and 2 others v. Sultan Ahmad 2005 SCMR 1388 , Ilahi Bakhsh and others v. Mst. Bilqees Begum PLD 1985 SC 393 and Gul Zaman v. Muhammad Shafique, PLD 1989 Peshawar 247.

5. As far as performance of Talbs is concerned the plaintiff/petitioner, in his plaint, has alleged that he got the knowledge of the impugned sale through one Muhammad Zubair son of Muhammad Hussain Khan on 24-5-2006 at 8-00 a.m., on Wednesday at his house, situated in Bunrr, Mingora, so, he there and then declared his intention to pre-empt the sale in question in presence of said Muhammad Zubair, and, thereafter, he served the vendees with registered AD notices, attested by two truthful witnesses, on 25-5-2006. Copy of the notices and postal receipt along with AD cards were also brought on the record. The plaintiff then filed the pre-emption suit and led his evidence in this regard by appearing himself as P.W.4, the informer Muhammad Zubair, as P.W. 5 and Sher Ahmad Khan and Amanuddin Khan, as P.Ws. 6 and 7, the marginal witnesses of the said notices. Besides the above, the plaintiff also produced the post office clerk and proved the factum of sending registered notice along with AD card and also the Notary Public, as P.W.3, who had attested the notices of Talb-e-Ishhad sent by the plaintiff. The perusal of entire evidence on the record would establish the fact that the plaintiff/petitioner has fully established the performance of factum of Talbs strictly in accordance with law and the learned counsel for the vendee/respondent failed to point out any material piece of evidence which could suggest that whatever alleged by the plaintiff/ petitioner was incorrect. No material contradiction in the evidence was pointed out. The trial Court held it to be not performed in accordance with law only for the reason that how the pre-emptor came to know that sale was effected through registered sale deed and the contradiction in the statements of attesting witnesses regarding the actual place of writing of notice. Even if this aspect is considered material but that would not be sufficient to discard the entire evidence of the pre-emptor for performance of Talbs. So, I have no hesitation to hold that the plaintiff/ petitioner has duly proved the performance of Talbs in accordance with law and the Courts below have failed to exercise their jurisdiction in accordance with the law which has resulted into misreading and non-reading of the evidence on the record. So, the findings of the two courts below to the extent of issue No. 4 are hereby set aside.

6. Now comes the deposit of 1/3rd of pre-emption amount under section 24 of the N.-W.F.P. Pre-emption Act, 1987. Before further dilating upon the merits of the case, it would be significant to reproduce section 24 of the Act, ibid. "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) Where the plaintiff withdraws the sum deposited 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 pre-emptor". A look at the above-quoted provision of law would confirm the fact that the pre-emptor is required to deposit 1/3rd of the sale consideration embodied in the sale deed and failure in this regard would result in dismissal of suit for pre-emption but while going through the record of the case, the very first order of the Court i.e., order Sheet No.3 dated 12-6-2006 would reveal that the pre-emptor shall deposit 1/3rd of pre-emption amount till date fixed. Order dated 12-6-2006 is reproduced below:-- The subsequent order of 10-7-2006 would further reveal that the Court observed that plaintiff has deposited 1/3rd of the pre-emption amount and receipts/challan of the Bank was also available on the file. The order dated 10-7-2006 is also reproduced below:-- The Court as well as the vendee/defendant, thereafter, did not raise any objection in this regard. The above said order of the trial Court would reveal that the court had only asked the deposit of 1/3rd of pre-emption amount and no specified amount was mentioned by the Court. The pre-emptor deposited 1/3rd of Rs.10,00,000 (Ten lac) which is the amount alleged by the pre-emptor. Had it been so, that the trial court had given a specified amount, then non-compliance by the pre-emptor would have been fatal for him. In such like situation, the pre-emptor alone cannot be held responsible and he cannot be left to suffer because of act of Court. The maxim "actus curiae neminem gravabit" that act of Court shall prejudice no man, would come to his rescue. The question for determination would be that when a person can deposit 1/3rd of Rs. ten lac, he could easily deposit 1/3rd of Rs.12,00,000 (Rs. Twelve lac). The law itself though is clear that it should be 1/3rd of the sale price but on the other side, order of the Court is silent in this regard. Besides, the vendee/respondent also failed to raise any objection in this regard. Had there been any objection then the court would have extended time to make up the deficiency. When court and the vendee failed to raise objection at proper time then the pre-emptor cannot be held to suffer on account of act of Court especially when no mala fide intention on the part of pre-emptor has been shown. Reliance in this regard can be place on the case of Muhammad Ghaffar v. Mst. Irum and others 2010 CLC

106. So, in this view of the matter, this revision petition is accepted, the judgments and decrees of two Courts below are hereby set aside and suit of the plaintiff is decreed against sale consideration of Rs.12,00,000 (Rs. Twelve lac). The plaintiff/petitioner is directed to deposit the balance of pre-emption money within thirty days, besides the deposit of court fee as stated above, otherwise his suit would be deemed to have been dismissed. K.M.Z./146/P Revision accepted.