P L D 2013 Supreme Court 489 (PLP)

MIAN SAQIB NISAR, J.

This appeal has its genesis in a pre-emption cause initiated by the appellant against the respondent; the facts whereof are:- that the former in his plaint (suit) challenged the sale price of the suit property, claiming that the ostensible sale consideration of the transaction i.e. a sum of Rs.8,00,000 alleged to have been paid is an inflated and exaggerated amount, whereas the true value in that regard is Rs.95,000, therefore, the appellant requested the Court that the probable value of the suit property in terms of second proviso to Section 24 of the Punjab Pre-emption Act, 1991 (Act, 1991) be determined at Rs.95,000 and accordingly he be permitted to deposit 1/3rd of that amount. The trial court did not accede to this request of the appellant and passed the following order dated 30-9-2008:-- "Along with the suit, the plaintiff has filed an application for determination of the probable value of the suit property for depositing zar-e-soem with the contention that the ostensible sale price of Rs.8,00,000 has been incorporated by the defendant in the Mutation No.2832 dated 3-6-2008, whereas as per contention of the plaintiff the sale price of the suit land is of Rs.95,

000. As the contention of the plaintiff is supported by different mutations annexed with the file, therefore, probable value of the suit land be determined and the plaintiff be directed to deposit zar-e-soem on its basis. The plaintiff has annexed with the plaint a copy of Mutation No.3832, according to which the suit land has been sold out for the price of Rs.8,00,000-. It is public document to which the presumption of truth is attached unless the same is rebutted by the evidence. The actual price of the suit land would be determined at the time of evidence after hearing the other party. Keeping in view the sale price mentioned in the mutation the plaintiff is directed to deposit Rs.2,66,667 within 30 days." The appellant did not comply with the order, rather challenged the same through a revision petition, which was accepted by the learned Additional District Judge vide order dated 28-10-2008; it is the view of the revisional court that, from the material attached to the plaint, it appears that the sale price is inflated, the trial Court was thus bound (emphasis supplied) to determine the probable value; as in the instant matter the Aust Yaksala and some mutations brought on the record by the plaintiff-appellant have not been considered by the Court, therefore, the matter was remanded to the trial court for the reassessment of the Zar-e-Soem. Aggrieved of the above decision, the respondent assailed it through a writ petition before the learned High Court, which was accepted vide judgment impugned dated 29-6-2010, and while setting aside the order dated 28-10-2008 of the revisional court, the order of the trial court has been restored.

2. Leave in this case was granted on 6-12-2012 to consider the following points:-- "In order to consider the parameters of section 24 of the Punjab Pre-emption Act, 1991 and also if the trial Court, under section supra has no jurisdiction to determine the probable value of the sale price and even if it so appears to be inflated under the section; leave is granted inter alia to consider the above." And in view of the importance of the point(s) involved, assistance has been sought from Mr. Ahmed Waheed Khan and Kh. Saeed-uz-Zafar, Advocates as amicus curiae.

3. Learned counsel for the appellant has argued that the learned High Court has misconstrued the provisions of section 24 of the Punjab Pre-emption Act, 1991 inasmuch as, it has been erroneously held in the impugned judgment "It is thus clear that the Court had to determine the probable value of the property only if no sale price has been mentioned in the sale deed or seems to be inflated in the mutation, meaning thereby that if the sale consideration was mentioned in the document of title, the court had no discretion in the matter (emphasis supplied by us) and is bound to pass order to deposit Zar-e-Soem according to subsection (1) of section 24 of the Punjab Pre-emption Act". He, therefore, submits that the ratio of the impugned judgment is founded upon wrong premise and misinterpretation of the section ibid, because it is clearly mandated therein that even if the price is mentioned in the sale deed/mutation, yet if such price appears to be inflated, the Court, has the discretion to fix the probable value. It is argued that on the basis of material/documents placed by the plaintiff on the record, it was duly established that the price of Rs.8,00,000 was inflated.

4. Mr. Zahid Hussain Khan, Advocate Supreme Court appearing for the respondent has defended the impugned judgment and also argued that in the instant case, as per the challan, the mutation fee has been paid on the basis of sale consideration of Rs.8,00,000, this is the strongest piece of evidence that such amount was honestly settled between the parties as the price and the same was actually paid.

5. Mr. Ahmed Waheed Khan, Advocate Supreme Court has not supported the impugned judgment and submits that the interpretation of section 24 ibid made by the learned High Court is not well founded and even if the price is mentioned in the sale deed etc., but where it appears to be inflated, the Court has the discretion to determine the probable value, he however has further drawn the attention of this Court to the mutation through which the sale in this case was effected (available at page 68 of the paper book) which reads as:- ( ) and accordingly it is pointed out that no price even has been mentioned in the said mutation; moreover, according to the learned Advocate Supreme Court, the mutation also is not inconsonance with the provisions of section 42 subsections (6), (7) and (8) of the Land Revenue Act, 1967. Therefore, it is submitted that as no sale price was mentioned in the mutation resultantly, it was all the more a reason that the trial court should have determined the probable value and then to direct the pre-emptor to make the deposit of the value so fixed, obviously within the time prescribed by law.

6. Khawaja Saeed-uz-Zafar, learned Advocate Supreme Court has also urged that the learned Judge in Chambers has misconstrued section 24 ibid and seemingly has mixed it up with section 24 of the N.-W.F.P. Act, 1987, which though almost an analogous provision but having some distinctive features; the reliance of the learned High Court on the judgments reported as Awal Noor v. District Judge, Karak and 8 others (1992 SCMR 746) and Habibullah Khan v. Amir Zaman and 9 others (1995 SCMR 135), is also misplaced., which precedents are not attracted to the case in hand. Mr. Saeed-uz-Zafar has stated that the probable value can be fixed by the Court when established by the plaintiff that the price mentioned in the sale deed/mutation is inflated, but for this, unimpeachable material should be placed (by the plaintiff) before the Court, however, in any case the determination has to be made and the deposit directed within 30 days statutory period, which is mandatory. It is further pleaded that for the purposes of determination of the probable value, the provisions of sections 27 and 28 of the Act, 1991 are not relevant, which are meant for the final adjudication of the price, if an issue is joined by the parties in that regard. He has also referred to the definition of the word probable, which as per Concise Oxford English Dictionary, Eleventh Edition, means "likely to happen or be the case. A person likely to become or do something", thus according to him the Court has the discretion to fix the value which is likely to be the price.

7. Heard. For resolving the proposition involved in the matter, we find it expedient to reproduce section 24 of the Punjab Pre-emption Act, 1991 which reads as under:-- "

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 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." From the clear language of section ibid there can be no doubt that the provisions of subsection (1) of section 24 are mandatory in nature, inasmuch as, 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, within which such amount can be ordered to be deposited is left to the discretion of the Court, which (discretion) is not unbridled, rather is circumscribed by a span of 30 days from the date of institution/filing of the suit, meaning thereby that if a suit, for example, is instituted on 1st of January, the Court may direct the plaintiff of the case to deposit the amount of Zar-e-Soem either the very next day or any other day till 31st of January and the plaintiff-pre-emptor is obliged to do so, otherwise he shall have to face the consequences as are envisaged by subsection (2) of section

24. It may, however, be pertinent to mention here that in ordinary course the Court should provide adequate time (within 30 days) to the plaintiff to make the deposit. But the Court under no circumstances has any discretion to allow the plaintiff or require/direct 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. It is settled law that where the time has been fixed by the statute, the Courts have no empowerment and the discretion at all, to enlarge/extend such time, unless otherwise provided and it is so permissible by or under the law, however there can be no bar on the Courts, in appropriate cases, to extend the time which has been fixed by it in its discretionary power i.e. within 30 days. It may further be relevant to mention here, that as the deposit within thirty days is the clear command of the law, therefore, even where the Court, on account of omission or the lapse, has failed to specify the time in this behalf, it shall be deemed that full 30 days period has been allowed by the Court to the plaintiff to make the payment and notwithstanding such omissions (lapse), it shall be the duty of the pre-emptor himself to make the deposit within a period of 30 days from the institution of the suit, otherwise he shall have to face the consequences of section 24(2) ibid. This is the true purport and the spirit of subsection (1) when read with first proviso thereto.

8. As regards the second proviso of section 24 is concerned, it comprises of two parts, first, visualizes, where no sale price is mentioned in the sale-deed/mutation and the plaintiff-preemptor has specifically highlighted this fact in the plaint and also has set out therein (plaint) the particular amount which could be the probable value of the suit property; the assertion of the probable amount specified and claimed by the plaintiff should be supported by the material/evidence appended to the plaint, in order to enable the court to assess the probable value. The Court on the basis of whatever, material has been placed on the record by the plaintiff may if satisfied that the price propounded by the plaintiff is ostensibly correct either fix that as the value or any other amount which in the facts of the case can justifiably and reasonably be the probable value or the Court may issue a notice to the defendant-vendee for that purpose and upon hearing both the sides shall fix such probable value on the basis of the material coming forth from both the sides. In the situation where the price is lacking in the sale deed/mutation (note: in the case of registered sale deeds it is hardly possible that no price is mentioned, therein, but may be it is so, in the cases of mutation(s), however even where the mutation fee has been paid on the basis of a certain amount, that amount for all intents and purposes shall be considered to be the sale price mentioned in the mutation for the purposes of this section) it shall be the duty of the trial court, and the Court shall necessarily have to determine the probable value, because otherwise it shall not be possible for the Court to order the plaintiff for the deposit of Zar-e-Soem, in terms of the command of section 24 ibid (as interpreted above) and the non-compliance of the section shall render it redundant, which is impermissible under the law. Therefore, in this scenario no option or discretion is left with the Court and thus it shall be imperative and mandatory for the Court to determine the probable value and pass order for its deposit within the prescribed period of time.

9. However, the second part of the proviso contemplates altogether a different situation, i.e. where though a price is mentioned in the sale deed/mutation, but it is assailed by the pre-emptor as being inflated; the Court in this scenario has been conferred with the discretion to fix the probable value and requires the plaintiff to deposit 1/3rd thereof as Zar-e-Soem. This exercise of discretion by the Court, obviously shall be inconsonance with the judicial norms settled by superior courts in this behalf, such as, it should not be exercised whimsically, arbitrarily, capriciously, against the material on the record and subjectively. However, with an object to elucidate and provide some guidelines as to how and on what basis this discretion should be exercised, it shall be relevant to highlight, as to why the law has placed a rider and imposed a condition on a preemptor to deposit Zar-e-Soem and in failure thereof, the dismissal of the suit (see section 24(2) ibid). The purpose is obvious, which is to prevent the mischievous pre-emption suits; check the bona fide of the pre-emptor and save the vendee from mala fide pre-emption action, therefore in line with such clear object, the Court should not venture to fix the probable value on the basis of mere bald and unsubstantiated stance of the preemptor, that the price is inflated; because the possibility cannot be ruled out, that for his own good reasons and for his specific need and for the location of the property etc. (note:- there can be multiple factors) a buyer may agree to pay the price of a particular property more than its value otherwise in the market. Therefore, the price, given in the sale deed/mutation on the basis of which the parties (to the sale) have also paid the stamp duty, taxes and other dues and fees for its transfer, must not be lightly interfered, rather should be sparingly done until the Court on the basis of the material placed before it, by the plaintiff is convinced that the price mentioned in the sale deed/mutation is inconceivably high, and it is most improbable (emphasis supplied) that such could be the price of the property at all; and the Court in this behalf is required to pass a reasoned order. It may be mentioned here, if material of unimpeachable and most credible nature is not forthcoming from the plaintiff side, it shall be the safer course, to adhere to the price mentioned in the sale deed/mutation, for the purposes of Zar-e-Soem, as such course shall be in line with the object of deposit (of Zar-e-Soem) as-explained above; the plaintiff can wait and join issue with the vendee and the determination of the price could finally in terms of sections 27 and 28 ibid and the amount deposited by the preemptor could be adjusted towards the price settled by the Court and/or if still any excess the plaintiff shall be entitled to the refund of the amount.

10. Once the Court has determined the probable value, the plaintiff-pre-emptor is bound to deposit the amount strictly in terms of the order within the period prescribed, however if he is dissatisfied with the order and wants to avail the remedy of assailing the same further, for example, in revisional jurisdiction, and in the process (note:- time in obtaining the copies etc.) the prescribed period of 30 days has elapsed but the deposit is not made, the suit shall be dismissed as per section 24(2); this shall also be the position if the order of the trial court is not suspended by the upper Court and 30 days have passed. If however the order is suspended, the time shall stop, but on the final decision of the revisional court, the time shall automatically start from where it stopped; if the determination of the trial court is upheld or even some modification is made in the amount of the probable value, the plaintiff-pre-emptor shall not be entitled to any further/fresh time, rather he shall be bound to deposit the amount within that unexhausted period which was left with him, out of the 30 days statutory period. This is so because the pre-emptor should always be ready and willing to deposit Zar-e-Soem as per the amount which is mentioned in the sale deed/mutation or the one which is finally fixed by the court(s) including revisional court etc. and the extension in time beyond the period of 30 days cannot be allowed to him under any circumstances whatsoever by any Court.

11. Coming back to the instant case, leaving apart the contents of the mutation reproduced above, the appellant in the plaint himself has mentioned:-- So it is not the case of the plaintiff that no price was mentioned in the mutation, besides mutation fee has also been paid on the basis of Rs.8,00,000, thus the case does not fall within the first part of (second) proviso, rather, the second part thereof and the trial court had the discretion to fix the value and had actually fixed it at a sum (Rs.8,00,000) noted above. Assuming the order of the trial court was not correct and the case was rightly remanded by the learned ADJ and the learned High Court had misinterpreted the provisions of section 24 ibid, yet in our firm view, after the impugned order of the learned High Court, the order of the trial court has resurrected, it reemerged, and became operative at once, the appellant should have deposited the amount of Zar-e-Soem within the remaining days which were left with him out of thirty days statutory period. And if no days were left, and there was no fault on part of the appellant, which shall be a rare phenomenon, he could deposit the amount the very next day from the final settlement of the price by the revisional court or the constitutional court as the case may be. The argument that learned High Court should have given fresh time to the plaintiff enabling him to deposit is absolutely misconceived; the learned High Court as mentioned earlier had no jurisdiction to extend the time, fixed by the statute. In the situation if the appellant was aggrieved of the High Court order, it was incumbent upon him to have deposited the amount as fixed by the trial court and approved by the High Court and then to approach this Court and got the order suspended within 30 days of original time available to him, or in the alternative in order to save himself from the consequences of section 24(2) to deposit the amount in time as mentioned above; and in case he was able to achieve a favourable decision from this Court in his favour he could always seek, the refund of that excess amount or its adjustment towards the pre-emption money. This has not been done. And the time could not be extended.

12. In the light of the above, though the impugned judgment of the learned High Court as it is founded upon wrong interpretation of section 24 ibid, it cannot sustain, which is hereby set aside by allowing this appeal. But at the same time holding that as the appellant has not complied with section 24(2) supra, his suit for pre-emption is liable to be dismissed, ordered accordingly. MWA/H-8/SC Order accordingly.