2019 PLP 2029 (MLD)

SYED ARSHAD ALI J.

Through the instant petition, the petitioner has called into question the propriety and legality of the impugned order of the learned District Judge/Zila Qazi Swat dated 19.04.2017, whereby while accepting the appeal of the respondent, the learned appellate Court has set aside the judgment and decree of the trial Court whereby suit of the present respondent No. 1 was dismissed for not complying with the order of the Court for deposit of 1/3rd of the sale consideration of the pre-empted property and allowed the plaintiff/ respondent No. 1 to deposit the requisite amount within a period of twenty (20) days.

2. Essential facts of the case are that the plaintiff/respondent No. 1 had filed a pre-emption suit against the defendants before the trial Court seeking possession of the suit property through pre-emption. It was averred in the plaint that the suit property was purchased by the defendant/petitioner Sher Zada in lieu of sale consideration of Rs. 15,00,000/- through a mutation bearing No. 3742 dated 23.06.2015, but in order to defeat the right of pre-emption of the plaintiff/ respondent an exaggerated amount of Rs. 27,50,000/- was entered in the sale mutation. It was further asserted in the plaint that the plaintiff/respondent is having superior rights of pre-emption and has performed all the requisite Talbs, therefore, the suit may be decreed in his favour.

3. During the proceedings of the suit, vide order dated 23.9.2015 the learned trial Court had directed the plaintiff/respondent to deposit 1/3rd of the sale consideration amount in the court within a period of 30 days and issued summons against the defendants/respondents. The defendant/petitioner appeared before the Court and contested the claim of the plaintiff/respondent No. 1 by filing his written statement. He has also filed an application for dismissal of the suit on the ground that the required Court fee has not been affixed on the plaint and 1/3rd of the sale consideration has not been deposited by the plaintiff/respondent within the specified period as fixed by the Court.

4. The said application was resisted by the plaintiff/respondent by filing replication. After hearing the parties, the learned trial Court accepted the said application and as such vide judgment and decree dated 22.11.2016 had dismissed the suit of the plaintiff/respondent under section 24 (2) of the Khyber Pakhtunkhwan Pre-emption Act, 1987 ("Act of 1987") mainly on the ground that the plaintiff had failed to deposit the 1/3rd of the sale consideration amount within the specified period as fixed by the trial Court.

5. That the respondent/plaintiff had challenged the said judgment and decree of the trial Court dated 22.11.2016 through Civil Appeal No. 29/13 of 2016 before the learned District Judge/Zila Qazi Swat. The learned appellate Court had although upheld that the respondent/plaintiff was supposed to deposit 1/3rd of Rs. 27,50,000/- the amount as mentioned in the said mutation, however, has further extended the time for 20 days to the respondent/plaintiff for deposit of the said amount by holding that the initial order of the trial Court whereby the respondent/ plaintiff was directed to deposit 1/3rd of the sale consideration was ambiguous. Hence, the present petition.

6. Arguments heard and record of the case was perused with the able assistance of the learned counsel for the parties.

7. It is evident from record that on 23.09.2015 the respondent/ plaintiff had filed a suit for pre-emption against the defendants in respect of the suit property wherein it was stated that the actual sale price of the suit property was Rs. 15 Lacs, however, in the sale mutation the exaggerated amount of Rs. 27,50.000/- was mentioned as sale consideration.

8. On 23.09.2015 the learned trial Court had passed the following order:- O

3 23.9.2015 Accordingly, the present petitioner was issued notices who appeared before the learned trial Court and contested the suit. On 3rd April 2016 the present petitioner had filed an application for rejection of the plaint on two grounds; firstly, that the suit was not properly valued for the purpose of Court fee and jurisdiction and secondly that the sale consideration has been expressly mentioned as Rs. 27, 50,000/- in the disputed mutation, whereas the plaintiff/respondent had deposited 1/3rd of Rs. 15 lacs i.e. Rs. 5 lacs in terms of section 24 of the Act. The said application was contested by the plaintiff wherein it was stated that indeed the actual price of the suit property was Rs. 15 lacs, whereas the amount mentioned i.e. Rs. 27,50,000/- in the disputed mutation is exaggerated.

9. During the entire proceedings before the learned trial Court, the plaintiff/respondent did not file any application to allow him to deposit the enhanced amount, therefore, in such circumstances, the trial Court had passed the order on 22.11.2016 dismissing his suit. Indeed, under section 24 of the Act, it is mandatory upon the plaintiff to deposit 1/3rd of the sale price of the property as explicitly mentioned in the sale deed/mutation. Section 24 of the Act of 1987 is reproduced as following for easy understanding of the issue:-

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 case 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 of 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 the pre-emptor.

10. It is by now settled by the august Supreme Court of Pakistan as well as this Court that once time had been fixed for deposit of 1/3rd of the sale consideration under section 24 of the Act then the pre-emptor would be bound to comply the said order within the time period so fixed and the Court has no jurisdiction to extend the said time in view of subsection (2) of section 24 of the Act, which envisages that on failure of the plaintiff to deposit the said amount, within the prescribed time his suit will be dismissed. In this regard, wisdom can be derived from "Rehman-ud-Din and another v. Sahibzada Jehanzer" reported as 2004 SCMR 418", wherein it was held by the august Supreme Court of Pakistan that:- "This is mandatory for the Court to direct for deposit of 1/3rd of pre-emption money as provided in section 24(1) ibid and sub-section (2) of the said section if plaintiff failed to deposit 1/3rd of the sale price, the suit shall be dismissed." It was further held in the last paragraph of the said judgment by the august Supreme Court of Pakistan that:- "There is no cavil to the proposition that the Appellate Court was competent to extend time for deposit of the pre-emption money under section 148; C P. C. but such, discretion could not be exercised to defeat the very purpose of law rather such discretion can only be exercised in exceptional circumstances and cases. The failure of a plaintiff to deposit 1/3rd of pre-emption money within the time, if given by the Court, is found due to an error or act of the Court and is not intentional, the plaintiff will definitely be entitled for extension of time under section 148, C.P.C. but if the default in deposit was due to fault of the plaintiff himself; there would be no justification to exercise discretion in his favour. The necessary element to judge the diligence of a litigant is the degree of care taken by him and manner in which he conducted himself and thus the question whether or not a person acted diligently and was not negligent, would depend on the circumstances of each case and cannot be determined on the basis of any settled principle. Having considered the case of respondent in the light of principle of reasonable care, we find him negligent as he was not vigilant in the matter, therefore, the enlargement of the time in exercise of the discretionary jurisdiction under section 198, C.P.C. for deposit of 1/3rd of pre-emption money after dismissal of suit by condoning the fault of pre-emptor who failed to deposit the 1/3rd of pre-emption money in compliance of the order of Court in absence of a good reason will amount to defeat the law and cause injustice to the opposite party." Similar view is also reflected in "Jehanzeb Khan v. Muhammad Iqbal (2000 SCMR 365), Wahid Bakhsh v. Abdul Qayum (1997 MLD 2945 Peshawar), Nardullah Khan v. Haji Zarif Khan 3 others (1997 CLC 428)" and" Awal Noor v. Disrict Judge Karak and 8 others reported as 1992 SCMR 746", wherein it was expressly held by the august Supreme Court of Pakistan that:- "No amount could be ordered to be deposited beyond 30 days. Direction for depositing amount after 30 days being not lawful was set aside."

11. The learned counsel for the respondents while defending the impugned order has placed reliance on the recent judgment of the august Supreme Court of Pakistan in "Wasal Khan and others v. Dr. Niaz Ali Khan (2016 SCMR 40)" and has argued that the initial order of the Court whereby the amount was not properly calculated has misled the plaintiff/ respondent and thus he could not deposit the amount in time 1/3rd of the sale consideration as mentioned in the mutation. With profound respect the law laid down in Wisal Khan's case is not applicable to the case of present respondent/plaintiff. In Wisal Khan's case the actual sale consideration of the property was Rs.14,40,000/- whereas the plaintiff in the plaint inadvertently mentioned the said amount as Rs. 14,00,000/- instead of Rs. 14,40,000/-. The trial Court on the first date of hearing had ordered the plaintiff to deposit 1/3rd of the pre-emption amount within 3 days. The plaintiff had thus deposited the amount within 3 days 1/3rd of Rs. 14,00,000/- and he was only short of an amount of Rs. 13,330/-. However, when the defendant in that case raised the objection on the said amount the plaintiff quickly filed an application for amendment in the plaint by mentioning the correct amount of Rs. 14,40,000/- in the plaint and had shown his readiness to deposit the remaining amount i.e. Rs. 13,330/-, which was allowed by the trial Court and thus before any order could be passed for dismissal of the suit, he was allowed to make good the deficiency. The said order of the trial Court was maintained by the appellate Court, revisional Court and the august Supreme Court of Pakistan.

12. However, in the present case, when this fact was brought by the petitioner before the trial Court, the plaintiff instead of admitting his mistake had contested the said application and was adamant that the amount which he deposited is correct, resultantly, his suit was dismissed. Even in appeal he contested the same issue, however, the learned appellate Court despite the fact that the Court has held that the plaintiff was required to deposit the amount of 1/3rd of Rs. 27,50,000/- had extended further 20 days to the plaintiff/respondent for depositing the said amount. In my humble view, once the suit was dismissed by the trial Court owing to the non-deposit of 1/3rd of the sale consideration as mentioned in the mutation then the appellate Court had no jurisdiction to further extend the said time. In this regard, I am forfeited with the ratio of the judgment of august Supreme Court of Pakistan in Awal Noor's case Supra wherein it was laid that:-- "With respect the distinction made by the High Court for extension of time one at the behest of the plaintiff and the other when the Court on its own, considers appropriate, is not supported by the language of law. The first proviso bars the extension of time beyond thirty days by a positive command in the negative. Therefore, if the period cannot be extended on the asking of the plaintiff it cannot be extended even suo motu. The question of act of God as a reason for extension may have to be examined in another appropriate case."

13. Similarly, the arguments of the learned counsel for the respondents that the plaintiff was misled by the initial order of the trial court wherein the amount was not properly calculated is also misconceived because the plaintiff was duly represented by the counsel and the law on the subject is very clear as mentioned in section 24 of the Act that the amount of 1/3rd as mentioned in the mutation or registered deed shall be deposited. Even otherwise, when this issue was raised by the defendant before the trial Court till the decision of the trial Court the plaintiff made no effort to make good the deficiency, therefore, the non-deposit of the exact amount pursuant to the order of the trial Court was based on mala fide.

14. In view of the above and the law laid down by the august Supreme Court of Pakistan in the afore-referred judgments, on acceptance of this petition, I am constrained to set aside the impugned order of the appellate Court dated 19.04.2017 and resultantly the order of the trial Court dated 22.11.2016 dismissing the suit of the plaintiff/ respondent is restored. ZC/198/P Revision allowe