2003 PLP 793 (YLR)

‑‑‑‑S.24 (as substituted by North‑West Frontier Province Pre‑emption (Amendment) Act (X of 1992)]‑‑‑Civil Procedure Code (V of 1908), S.148‑‑‑Time fixed for deposit of 1 /3rd pre‑emption money‑‑‑Enlargement of time‑‑ Applicability of S.148, C.P.C‑‑‑N.W.‑F. P. Pre‑emption Act, 1987 being a special law provided procedure for certain matters, while C. P. C. provided procedure for adjudication of civil nature generally‑‑‑Special law would prevail upon the general law ‑‑‑Pre emptor could not be allowed to take refuge under provisions of 5.148, C. P. C. (f) Interpretation of statutes‑‑‑ ‑‑‑‑ Special law would prevail upon general law. Tajuddin for Petitioners. Jamshed Khan for Respondent. Date of hearing: 14th October, 2002. The petitioners by way of filing instant civil revision seek setting aside of Order of learned Additional District Judge, Mardan, dated 27‑7‑2000, passed in Civil Appeal No.40/14 of 2000, whereby order of learned Civil Judge, Mardan, dated 22‑5‑2000 passed in Suit No. 590/1 of 1999, rejecting the petitioners' application for dismissal of suit, was maintained and appeal was dismissed.

2. Briefly narrated the facts are that Mst. Nusrat Begum plaintiff‑pre‑emptor, through her attorney Nadir Shah brought suit on 25‑11‑1999 for possession through pre emption of suit land detailed in the plaint. Vide order sheet, dated 25‑11‑1999 the plaintiff‑pre‑emptor was directed to deposit 1/3rd of the pre‑emption amount in Court within one month. The pre‑emptor moved an application on 24‑12‑1999 for grant of permission to deposit Rs.300,000 (pre emption amount) in Court. The learned trial Judge allowed the application but the amount could not be deposited on account of the Civil Nazir statedly having gone on winter vacations. On opening Courts another application was filed on 3‑1‑2002 with the similar prayer which was also accepted and the pre‑emption amount was deposited. Feeling aggrieved, Muhammad Ayub, one of the petitioners trade an application on 4‑1‑2000 seeking dismissal of the suit in view of the default on the part of the pre‑emptor to deposit the pre‑emption amount in time. The application was resisted and ultimately rejected through order, dated 22‑5‑2000 which was maintained in appeal through order, dated 22‑7‑2000, as noted above.

3. Mr. Tajuddin, Advocate appearing on behalf of the petitioners criticised the impugned orders of the Courts below and submitted with vehemence that the lower forum had no jurisdiction to extend time for deposit of the pre‑emption amount in terms of section 24 of the N.‑W.F.P. Pre‑emption Act, 1987 as amended in 1992 and as such the impugned orders have materially prejudiced the interest of the petitioners. The learned counsel reiterated that at the relevant time the learned trial Judge was functioning as Magistrate on duty and entertaining applications of urgent matter and as such the deposit could have been trade on 24‑12‑1999 instead of 3‑1‑2000. He relied on Wahid Bakhsh.v. Abdul Qayyum and another (1997 MLD 2945 (Pesh.) and Mst. Mah Jehan v. Abdul Maroof (2000 MLD 814 (Pesh.)).

4. Mr. Muhammad Jamshed, Advocate, for the respondent, in reply, supported the impugned order and maintained that the pre emption amount was deposited within the prescribed time and even otherwise the learned trial Judge had power to. extend time for deposit of the pre‑emption amount within the meaning of section 148, C.P.C. Ht relied on Muhammad Hashim and others v. Arshad Javed and another, (1991 M.LD 986 (Peshawar)), Rasul Bakshh v. Ghulam Qadir and another (PLD 1960 (W.P.) Karachi 741), Nazar Muhammad v. Murad Ali and others (PLD 1960 (W.P.) Lahore 757) and Muhammad Ramzan v. Ahmad Bux and another (1991 SCMR 716).

5. Having heard the arguments of learned counsel for the parties in the light of the material on record and the case‑law cited at the bar, I find myself in agreement with learned counsel for the petitioners that the trial Judge could not have legally extended the time limit in view of subsection (2) of section 24 of Pre‑emption Act, 1987, as amended in 1992. It makes it obligatory for the Courts to dismiss the suit on the failure of the pre‑emptor to deposit 1/3rd of the sale price within the period fixed by the Court. Section 24 of the Pre emption Act is reproduced below for facility sack:‑‑ "

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 tray 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) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (4) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (5) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑

6. Before amendment of section 24 by Act X of 1992, the Court had the power to extend the period not beyond 30 days for filing of the suit but under the amended section 24, there is no statutory limit within which the deposit has to be made and matter has been left to the discretion of the Court to fix time within which the deposit has to be made and its failure must result in the dismissal of the suit. By amending section 24 of the Act, only the words 'thirty days' has been omitted and rest of the provision has been kept intact, which means that once a time is fixed the pre‑emptor shall be bound to comply with, within the time so fixed, and' neither the pre‑emptor would be allowed to apply for further extension nor the Court will be competent to allow extension. It stands established from the material on record that even during the winter vacation which commenced on 24‑12‑1999, the learned trial Judge had been functioning as Magistrate on duty and attending to the applications of urgent nature. In the circumstances, the plea that on the aforesaid date i.e. 24‑12‑1999 the pre‑emption amount could not be deposited in Court due to absence of Civil Nazir, is not available to the respondent. No serious effort seems to have been made by the respondent in this respect. It is not denied that the pre‑emption right, being a feeble right, pre‑emptor seeking to exercise such I right was bound to perform and fulfil its requirements meticulouosly and any failure in that behalf would deprive him of success in getting a pre‑emption decree as held by this Court in Wahid Bakhsh v. Abdul Qayyum and another (1997 MLD 2945 (Peshawar)) section 24(1) of the Act is not so liberal. It has prohibitive force. It is not only I mandatory but also obligatory as held in 1994 SCMR 492, 1995 SCMR 135, 1997 SCMR 1267 and 1997 MLD 2945 (Peshawar).

7. Adverting to the question regarding application of section 148, C.P.C. I find that the submission made by learned counsel for the respondent is misconceived. It is not I denied that the Pre‑emption Act is a special law vie‑a‑vie C. P. C. which provides procedure for adjudication of civil disputes generally, but Pre‑emption Act, 1987 by itself provides procedure for certain matters. It is a recognized principle of law that special law shall prevail upon general law. The respondent cannot be allowed to take refuge under the provisions of section 148, C.P.C.

8. The case‑law cited on behalf of the respondent is distinguishable and speaks of the different situation. It has no bearing on the facts and circumstances of the case.

9. In the result and for the foregoing reasons, while accepting the civil revision, I set aside the impugned orders and dismiss the suit of the respondent. The parties are left to bear their own costs. S.A.K./688/P Revision accepted.