1989SCMR760 (PLP)

NAIMUDDIN, J.‑‑Appellant purchased the land bearing, survey No.2621, situated in village Lungrian, Tehsil Pindigheb, District Attock by a registered sale‑deed dated 20‑10‑1970, for a sum of Rs. 70,

000. Respondent No. 1 filed a suit for pre‑emption which was decreed by the Collector, Tehsil Pindigheb by the judgment dated 21‑7‑1981. The decree provided that after deducting the amount of Rs. 14,000 being 1/5th of sale price which was deposited by respondent No. 1 on 4‑1‑1981, the balance amount shall be deposited in Court by 21‑8‑1981, otherwise, the decree provided, the suit shall be deemed to have been dismissed with costs. Respondent No. 1, however, on 12‑8‑1981, filed an application stating that he has given up his right under the decree and he may be allowed to withdraw the amount of Rs. 14,000 deposited by him which was allowed by the Collector on the same day. After two days on 15‑8‑1981, respondent No. 1 filed another application stating that under the decree passed in his favour he was directed to deposit the amount by 21‑8‑1981, but his general attorney in conspiracy with the appellant has withdrawn Rs. 14,

000. Therefore, he may be permitted to deposit the entire amount of Rs. 70,000 which was allowed by the Collector. The appellant aggrieved by the order preferred an appeal with the Additional Commissioner (Revenue) who accepted the same and dismissed the suit by the order dated 12‑12‑1981. Respondent No. 1 preferred a revision with the Member (Revenue) Board of Revenue Punjab which was accepted by him by setting aside the order of the Additional Commissioner and restoring the order of Collector on the ground that respondent No. l had managed to win over the Attorney to frustrate the decree already passed in favour of the appellant. This order was challenged by the appellant in the Lahore High Court in Writ Petition No. 472 of 1982 which was dismissed by the order impugned in this appeal. The reasons which prevailed with the High Court in dismissing the writ petition are: "The reliance of the learned counsel for the petitioner, on section 22(5) is misconceived. The object of deposit of `Zar‑e‑Panjam' under section 22 is to protect the interest of the vendor against the frivolous litigation, at the hands of a pre‑emptor. But there when the `Zar‑e‑Punjam' was withdrawn the suit had already been decreed. Subsection (5) of section 22 warrants dismissal of the suit and the appeal. As regards the suit it was not pending, therefore, the question of its dismissal did not arise. The appeal was filed by the petitioner and, therefore, its dismissal was also out of question. It being so upon the language of subsection (5) of section 22, there was no legal basis for dismissal of the suit." We have heard the learned counsel for the parties. Learned counsel for the appellant submitted that under section 22(5)(a) of the Punjab Pre‑emption Act, on withdrawal of the amount, the suit was liable to be dismissed as was rightly held by the Additional Commissioner. Before we deal with this submission we may quote the said provision which reads: "Section 22(5)(a). If any sum so deposited is withdrawn by the plaintiff, the suit or appeal shall be dismissed." We are of the view that the provision as such has no application to the case as was righlty held by the High Court. However, in the case the decree was a conditional decree. Under the condition respondent No. 1 was under obligation' to deposit the balance amount of Rs. 56,000 by 21‑8‑1981, otherwise, the suit, according to the terms of the decree, would have stood dismissed. The date of 21stAugust, 1981, was the last date but respondent No. l could have performed the condition before that date and decree would have become operative. Similarly before the target date he could possibly inform the Court that he would not perform the condition. This is exactly what he did by unconditionally withdrawing the amount of Rs. 14,000 and failing to fulfil the condition of the decree as passed. Therefore, the suit stood dismissed. In any case, he expressly abandoned his right to make the inoperative decree operative and, therefore, the suit was rightly dismissed. It was, however, submitted that the amount was withdrawn by the general attorney who had signed the application in collusion with the appellant and the application was not signed by respondent No .l though he had signed the pleadings etc. before that. It is fact that the application was signed by the attorney of respondent No. l but it was also signed by his Advocate. Fie is, therefore, bound by it. Further, the amount of Rs. 14,000 was paid through voucher No. 59 dated 13‑8‑1981 drawn in his name. It is not his case that he did not receive the paid amount through the voucher. Indeed, he never made a grievance of it. Therefore, there was no fraud on the part of general attorney or collusion by him with the appellant. We, therefore, accept this appeal by leave and set aside the orders of the High Court and the Member (Revenue) Board of Revenue Punjab and restore the order dated 12‑12‑1981 passed by Additional Commissioner (Revenue). Respondent No. l shall also bear the costs of the appellant. A.A./S‑238/S Appeal accepted.