P (PLP)

The mere fact that a Court receives, attests and places on the record a security‑bond filed after the date fixed by the Court for putting it in, does not, by implication extend the time within which the security was to be furnished, and in such a case the plaint should be rejected under section 22 (4) of the Punjab Pre emption Act. 33 I. C. 487 ref. 5 L. 492 ; 4 L. L. J. 526 ref. The provision of section 22 (4) of the Pre‑emption, Act that the plaint shall be rejected was a mandatory one and the trial Court's omission to pass an order in accordance herewith was an illegality such as could not be cured by section 99 of the Civil Procedure Code 1908, and the plaint must accordingly' be rejected even by the High Court in second appeal. 5 L. 492 rel. JUDGMENT.‑On 20th of April 1949 a pre‑emption suit was brought by one Muhammad Hayat against Rahman and others for the possession of agricultural land on payment of Rs. 2600 It was alleged that the deed was registered for Rs. 3500 but it was for a fictitious amount. When the plaint was registered it was ordered by the Court on 23rd of April 1949 that the plaintiff should deposit in Court either one‑fifth of the consideration of the sale money or security for the entire consideration on the next date which was 17th of May 19

9. Neither the cash was deposited in the Court nor the security was furnished on the date fixed for that purpose, i. e., 17th of May 1949. An application was made on 24th of May 1949 by the plaintiff that the time be extended for furnishing security as his surety was not present on that date and while he was present on the last hearing, the Court did not call upon him to furnish the security. The presiding officer of the Court recorded an order in the following terms "Muhammad Hayat wants to deposit the money. He would' be responsible for the limitation (Zar‑i‑saman) "Raqam" be deposited. On the 16th of June 1949 the plaintiff furnished a security bond for Rs. 700 alone which according to him was the 1/5th of the consideration. This was attested and accepted by the presiding officer. The case proceeded and on the eleventh hour it was alleged that as the order of the Court dated 23rd of April 1949 to deposit 1/5th of the consideration or furnish security for the full consideration was not complied with, consequently the plaint was liable to be rejected under section 22(4) of the Punjab Pre emption Act, (Act I of 1913) which is enforceable in the State. The Court instead of passing an order of the rejection of the plaint passed an order of the dismissal of the suit. That decision of the ‑Court is now the subject‑matter of revision before this Court. Two preliminary objections were raised by Mr. Mustafa Khan on behalf of the respondent. Firstly, that an appeal against, the decision of, the Court alone was entertainable and dot a revision and secondly; a. revision against a decision on a question of law however wrong the decision may be could not be entertained. It may be pointed out at the outset that the order of the trial Court was to dismiss the suit and not to reject the plaint. As the Sub‑Judge was acting under section 22(4) hence the order would be treated as rejecting the plaint and not dismissing the suit. If I had held that the order was of the dismissal of the suit and not rejection of the plaint, then the decision of the question raised by the learned counsel for the respondent was evidently simple. Holding that the order amounted to the rejection of the plaint a difficult question arises for my consideration that is whether an appeal could lie or a revision should be entertained. It would not be out of place to observe in this case that the discussion of this point would only be an academic one. Because whether it is treated as a revision or an appeal it must be rejected in either case. However, as the point is argued before me I will try to go into it. Clause (2) of section 2 of the Civil Procedure Code reads: "Decree" means "the formal expression of an adjudication which, so far as regards the Court expressing, it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary' or final. It shall be deemed to include the rejection of a plaint". The rest of the clause is not necessary to be reproduced here. It was there tore contended by Mr. Mustafa Khan that as the order of the Court virtually rejected the plaint, consequently it fell within the defini tion of the "Decree" and as such appeal alone was competent. In support of his contention he referred me to 1923 L. 257, 1925 L. 209, 105 I. C.

533. In those cases it was admitted by the counsel that this question whether such like orders were subject to appeals or revisions was neither raised, discussed or decided. His position was that as in the Punjab where this act is enforceable appeals have been entertained. consequently it should be field that the decision under question was only appealable and no revision could be against it. In 1923 L. 257 the appeal was not against the rejection of the plaint under section 22(4) of the Punjab Pre‑emp tion Act. In 1925 L. 209 indeed the plaint was rejected under section 22(4; as the order of the Court was not complied with. There the first and second appeals were entertained. In 105 I. C. 553, the plaint was also rejected under section 22(4) of the Punjab. Pre‑emption Act. There also the appeal was entertained. Mr. Saleem on behalf of his client depended on Pandit Amba Shankar v. Mst. Seoti reported in 1937 All. 280 where Niamatullah, J. had held "if the plaint is rejected for a cause for which the Code does not empower the Court to do so, it will not be a decree, as defined in the Civil Procedure Code even though the Court may use the word "reject" in disposing of the suit". In my opinion in determin ing the value of the observations of the learned judge it is desirable to bear in mind the facts of the case in which those observations were made. There a pauper's suit was dismissed and he was charged with costs in the suit under order 33 rule

11. Subsequently he filed an appeal which was properly stamped. In pursuance of a memo issued by the Collector for recovery of costs, the District judge ordered that the appeal would not be heard unless costs were paid by the pauper within a certain time. The appeal was dis missed on such default of payment:‑It was held that the order of the rejection of the memorandum of appeal was wholly without jurisdiction. The present case is evidently distinguishable from the case relied upon by the learned counsel for the petitioner. That ruling cannot therefore be held to lay a rule of law which can be applied to the present case. In 154 I. C. 820, a decision on a point in a case which had no relevancy to the case before the Court was not treated an authority for the decision of the point raised in that case. Only the observations which appeared there may be consider ed with advantage. While dealing the point in dispute the learned JJ. had observed:‑"A contrary ruling has been referred to by the petitioners, namely, the case of Jnanada Sundaisaha v. Madhab Chandra Mala. That case is distinguishable inasmuch as that was not a case of dismissal because the balance of Court‑fee which was due on the plaint was not deposited within the time allowed by the Court. My sole object in referring to those observations is that the decision in a particular case on one point cannot always be treated as a precedent for the others, if the facts and the circum stances in both are different. The case before me is under the Punjab Pre‑emption Act (Act I 1913), which is applicable in the State as well. Out of the three rulings quoted by the respondent, two support his contention to this extent that in cases of rejection of plaint under section 22(4) appeals have been entertained and not the revisions. In 52 P. R. 1891 which was a case of pre emption but under the Punjab Laws Act it was held that the ques tion arising under section 16(a) of that Act which refer to the de posit of the consideration is subject to the provision of section 54 of the Civil Procedure Code. From this authority I find support for the view that cases covered by section 22(4) of the Pre‑emption Act must be considered subject to the provisions of section 2(2) of the Civil Procedure Code. I think that it was for that reason that in the Punjab appeals against such orders were entertained and not revisions. I am therefore of opinion that the view of the learned counsel for the respondent in this case must prevail. The rejection of the plaint under section 22(4) of the Pre‑emption Act amounts to a decree as defined in section 2(2) of the Civil Procedure Code and is therefore appealable. Whenever there is a right of appeal a revision cannot be entertained. On that ground the petition is liable to be rejected. On the other point the revision cannot be sustained. The second objection of the learned counsel for the respondent, was, that the High Court was incompetent to revise an order passed on a legal question, whether the order was right or wrong and in support of his contention he has referred me to a number of rulings for instance. 1935 L. 951, 972, 602 and 120, 1939 L. 112 and 1939 L.

26. I do not think it necessary to discuss the proposition laid down in those rulings because to my mind such a necessity does not arise in the present case. Here the order proposed by the Court below is not against but in consonance with the law on the point. I would not, however hesitate to observe that the orders of the Court dated 24th of May 1949, 16th June 1949 give a clear proof of the indifference‑and negligence of the Court. By his first order dated 23rd of April 1949, he had directed the plaintiff that he should either deposit 1/5th of the consideration of the sale‑deed or furnish security for the full amount. The sub sequent order dated 24th of May 1949 was indeed not in conformi ty with his previous order. The petitioner had clearly averred in his petition that he would furnish security as already ordered, but the Court varied his order and wrote that Zar‑i‑saman `Raqam' dakhil kia jawa. In his last order' dated 16th of June 1949, he sanctioned the security‑bond which was only for Rs. 700, i e., for 1/5th of the consideration of the deed. If the Court had exercised care in the matter then possibly some directions would have been given to the plaintiff which could put him on guard to furnish security for the correct amount. These facts therefore clearly indicate that the original order of the Court dated 23rd of April 1949 was not complied with. The law on this point is very jealous and cast an obligation on the plaintiff pre‑emptor to comply such an order in its strict terms. The learned counsel of the petitioner had contended that the Court below by accepting the security bond on 15th of June 49 had by implication extended the period to comply with the order of the Court dated 23rd of April 1949 and consequently it should be held that his client had complied with the original order of the Court. I am unable to agree with this contention. As pointed out above the security furnished by the plaintiff was not in accord ance with the order of the Court dated 23rd of April 1949. That order as I have referred to it more than once was to the effect that the plaintiff had to deposit either 15th of the consideration in cash or to furnish security for the full amount. The security produced by the petitioner and sanctioned by the Court was only to the extent of Rs. 700 and consequently by no stretch of imagination the production of that security could be the compliance of the order of the Court. In 33 I. C. 487 it was held by D. B. consisting of Shah Din and Chevis, JJ. that the mere fact that a Court receives, attests and places on the record a security‑bond filed after the date fixed by the Court for putting it in, does not by implication extend the time within which the security was to be furnished, and in such a case the plaint should be rejected under section 22(4) of the Punjab Pre‑emption Act., There are number of authorities on this point and it would not be necessary for me to multiply them as the principle laid down on this point had been consistently followed in the Lahore High Court. I would however refer only to 5 L. 492 and 4 L. L. J.

526. These rulings are a clear reply to the learned counsel of the petitioner that the acceptance of the security‑bond amounted by implication to the extension of the time to comply with the order of the Court dated 23rd of April 1949. Before I close this judgment I should refer to the last argu ment of the learned counsel, in which he had contended that the omission on the part of his client was nothing but a procedural mistake and he should not be punished for it. But a reply to this argument can be found in 5 L. 492 where it was held that the provision of section 22(4) of the Pre‑emption Act that the plaint shall be rejected was a mandatory one and the trial Court's omis sion to pass an order in accordance therewith was an illegality such as could coot be cured by section 99 of the Civil Procedure Code 1908 and the plaint must accordingly be rejected even by the High Court in second appeal. I therefore hold that this petition has no force from whatever side it is seen and deserves dismissal. It, is accordingly dismissed with costs. Present Muhammad Hayat petitioner and Gaman respondent. Announced. A. H. Petition dismissed.