1995 PLP 957 (CLC)

Mirza Manzoor Ahmad for Respondent. Dates of hearing: 19th, 20th and 22nd December, 1994. Land measuring approximately 60 Kanals situated in Chak No. 37/S.P., Tehsil and District, Pakpattan, was sold by Muhammad Anwar, etc. in favour of Ghulam Hassan, vide mutation No. 1735, dated 31‑7‑1991, for an ostensible consideration of Rs.7,50,

000. The present appellants filed a suit on 26‑10‑1991, for possession of land through the exercise of their right of pre emption. It was asserted that the sale price of Rs.7,50,000 was factitious and the real price is Rs.3,00,

000. From 26‑10‑1991 to 13‑1‑1992, the suit remained pending for procuring service of the defendants. On 13‑1‑1992, for the first time the Court directed the plaintiffs‑appellants to deposit 1/3rd of the sale price mentioned in the mutation by 15‑1‑1992 The plaintiffs failed to deposit the amount as ordered which resulted in the dismissal of their suit under section 24(2) of the Punjab Pre‑emption Act, 1991. Plaintiffs preferred an appeal in the District Court on 15‑2‑1992, without any court‑fee on the memo. of appeal. On 6‑10‑1992, the appellate Court called upon the plaintiffs appellants to pay the court‑fee in the sum of Rs.8,775 within fifteen days of its order and observed that in default the appeal shall be deemed to have been dismissed. The appellants deposited the requisite amount in the treasury for purchase of court‑fee stamp which was delivered to them on 19‑10‑1992, and were filed in Court on 2‑11‑1992. The appeal was dismissed on 2‑11‑1992 on the ground that the court‑fee stamp was not deposited within the time fixed by the Court. This order. was set aside by this Court vide judgment dated 30‑11‑1992 passed in Civil Revision No. 631/94. The appeal was remanded for decision on merits.

2. The appeal came to be ultimately heard by Mian Abdul Qayyum, District Judge, Pakpattan Sharif, who vide judgment dated 5‑9‑1993, dismissed the same and maintained the judgment and decree of the trial Court. The present second appeal under section 100, C.P.C. is directed against the decree of the trial Court. The same was admitted to regular hearing on 8‑11‑1993 after hearing the learned counsel for the parties to consider the contention that since no formal order was .passed by the Court calling upon the plaintiffs appellants to deposit 1/3rd amount within the time prescribed by first proviso to subsection (1) of section 24 of the Punjab Pre‑emption Act, 1991, the suit could not have been dismissed for non‑compliance with the order dated 13‑1‑1992.

3. In view of the judgments cited by the learned counsel for the respondents, namely, Haji Janat Gul Khan v. Haji Faqir Muhammad Khan and others (PLD 1993 SC 204) Awal Noor v. District Judge, Karak and others (1992 SCMR 746); Muhammad Rafique v. Hassan Bakhsh and others (1993 CLC 622), and Mehboob Khan v. Sher Baz Khan and another (1993 CLC 1939), the case could not have presented any difficulty in its disposal but for the fact that in the present case the order for deposit was passed on 13‑1‑1992, much beyond 30 days of the institution of the suit. If the law obliges the Court to require the plaintiffs to deposit 1/3rd of the sale price of the property in cash and the Court fails to do so within the time prescribed, the question does arise as to whether the non‑compliance by the Court with the statutory obligation can be punished with the dismissal of the plaintiffs' suit. In all the precedent cases noted above this precise question does not seem to have been answered although it is clearly laid down that the Court has no power to extend time for deposit beyond of course the 30 days provided in the first proviso.

4. Section 24 of the Punjab Pre‑emption Act, 1991, reads as follows:‑

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.

5. The cumulative reading of the section leads to the following conclusions:‑‑ (i) It is the Court which has to require the plaintiffs to deposit. (ii) Language used in subsection (1) is mandatory as the word "require" casts an obligation. (iii) Consequence of non‑deposit having been provided in subsection (2), the provision is mandatory and not directory.

5. It is well‑settled principle of law that the act of Court will not prejudice any party. Reference may be profitably made to Naseer Ahmed v. District Judge, Multan and others (PLD 1992 Lahore 92) and Mian Ijaz Iqbal and another v. Faisalabad Chamber of Commerce and Industry and another (PLD 1983 Lahore 1). Another principle attracted to the facts of the case is that where the law requires a particular thing .to be done in a given manner, it has to be done in that manner. The third principle which is attracted and which in fact is allied to the above two principles is that a party is excused from the performance of an order/obligation if the same is not strictly in accordance with law.

7. In the present case the order for deposit had to be made by the Court and ought to have been made within 30 days of the institution of the suit i.e. up to 2b‑i1‑1991. As has been held, the Court is powerless to extend the time beyond 30 days of the institution of the suit. The duty is upon the Court to require the deposit and there seems to be wisdom behind it. The wisdom is that in the event of a dispute, the Court has to determine the probable value of the property and then direct its deposit. To say that because the law of pre‑emption is heavily loaded in favour of the vendees and, therefore, the pre emptor must always carry the cash with him, is simplifying the matter to unreasonable length. The intention of the law seems to be that the Court must act in accordance with the same and pass the order of deposit within the time. This having not been done neither the plaintiffs can be punished for failure of the Court nor the defendants can be allowed to profit from the omission. From this point of view, the order of deposit dated 13‑1‑1992, being not in conformity with section 24 of the Act, its non‑compliance cannot be visited with the penalty of dismissal of the suit. This seems to be just and in accord with the principle of keeping scales of justice even between the parties.

8. It has been argued that the plaintiffs‑appellants cannot be exonerated totally inasmuch as even they failed to invite the attention of the Court to act in accordance with section

24. In other words, the contention is that since the plaintiffs‑appellants have contributed to the illegality and they are the pre emptors, therefore, any interpretation which benefits them should be avoided. To me, this principle cannot be allowed to operate unbridled. It is not only the Court and the plaintiffs but also the defendants which are required to act in accordance with law and if in a given case the plaintiffs can be said to have contributed to the illegality committed by the Court, so can be the defendants. To my mind the contribution by one or the other party to the acts of omissions, will not absolve the Court from acting strictly in accordance with section 24 ibid. Therefore, even if the plaintiffs‑appellants can be said to have contributed to the illegality on account of their failure to ask the Court to act under section 24, they should not be denied the benefit of the dictum that act of Court will not prejudice any party. I would not in the circumstances, allow this so‑called doctrine of contributory negligence to affect the application of the principle of actus curiae neminem gravabit (act of Court shall prejudice no man).

9. It is next argued that even if the appeal was to be allowed and the decree set aside, this Court will have no power to re‑fix the time for deposit inasmuch as such a re‑fixation would be beyond the time schedule fixed section 24 of the Act. It is also contended with reference to the above noted case law, that the Court has no power to extend the time and the "Court" includes the appellate Court. The arguments cannot be allowed to prevail for the very strong and good reason that this would amount to curtailing the power of the appellate Court as laid down in the Code of Civil Procedure, 1908, in particular the provisions of section 107 and Order XLI, Rules 32 and

33. It is otherwise inherent in the appellate power to pass such order as would tend to do complete justice between the parties. For this reason the argument that since 30 days as envisaged in the section have passed, therefore, the appellate Court has become helpless, cannot be allowed to prevail. Section 24 in terms places fetters on the trial Court but not on the powers of the appellate Court. Learned counsel appearing for the respondents has drawn my attention to the facts of the case reported as Haji Gul Khan v. Haji Faqir Muhammad Khan and others (PLD 1993 SC 204) and has pointed out that in the case reported initial order of deposit was passed on 2‑9‑1987, beyond 30 days of the filing of the suit and in spite of this the Court held that the order was not infirm. A careful perusal of the report of the judgment shows that this particular aspect of the case i.e. the order of the deposit being not in conformity with section 24 of the Act was not before the Court. What has been decided is that the Court has no power to extend the time once having been fixed. The further question as to the effect of failure of the Court to perform its statutory duty upon the rights of the parties has again not been decided in the cited judgments.

10. It has also been argued that this particular question cannot be allowed to be raised in this second appeal inasmuch as it was neither taken in the memorandum of appeal in the lower Court nor argued before the lower Court. It is further pointed out that this particular ground has not been taken in the memo of appeal before this Court. On factual plane the learned counsel for the respondent is correct. This question has not been taken up earlier. However, it is not denied that this is a pure question of law and this Court can allow it to be raised. Apart from its being a pure question of law, in my view, the question is also of first impression and the same requires urgent adjudication for guidance of the trial Courts. I, therefore, allowed the same to be raised and heard the learned counsel for the appellants in support of the same. The learned counsel for the respondent was given adequate time to rebut the same.

11. It has also been argued by the learned counsel for the appellants that the time allowed for deposit (by 15‑1‑1992) was inadequate,. considering the huge amount of Rs.2,50,000 required to be deposited. The submission may have some weight but in the circumstances and because of the ‑ view of the Supreme Court regarding power of extension of time, I need not adjudicate the same.

12. The upshot of the above discussion is that the order dated 13‑1‑1992, by the trial Court was illegal having been passed beyond the statutory period and, therefore, its non‑compliance could not be visited with the penalty of the dismissal of suit. I would, therefore, allow this appeal, set aside the decree and remand the case to the trial Court for decision on merits provided the plaintiffs‑appellants deposit one‑third of the sale price mentioned in the mutation (Rs.2,50,000) on or before 31‑1‑1995, failing which their suit shall stand dismissed. In view of the difficult question of law involved, I would leave the parties to bear their own costs. AA./J‑92/L Appeal allowed.