1988 PLP 551 (CLC)

Shah Wali v . Ghulam Din alias Gaman and another P L D 1966 S C 983; Ghulam Muhammad and another v. Irshad Ahmad and another P L D 1982 S C 282; Dost Muhammad and others v. Nazar Hussain Khan and others 1983 S C M R 683 and Keshav Yeshwant Koli v. Krishna Balaji Mahar and others A I R 1939 Nag. 107 rel. (c) Act of Court‑‑ ‑‑‑ Act of Court, held, could not be permitted to injure right of any person‑‑The moment Court comes to know that by its own act injury had been caused to a party, such Court would be duty bound both morally and legally to step in and rectify the mistake so as to put parties in a position which they would have occupied but for the error committed by Court. (d) Punjab Pre‑emption Act (I of 1913)‑‑ ‑‑‑5. 21‑‑Civil Procedure Code (V of 1908), S. 115‑‑Withdrawal of pre‑emption money by vendee‑‑Such plea neither taken by pre‑emptor in Courts below nor taken in grounds of revision before High Court‑ Effect‑‑Where plea of withdrawal of pre‑emption money by vendee was taken for the first time by pre‑emptor at stage of arguments in revision and there was no material on record in support thereof, acquiescence by conduct, held, could not be deduced from circumstance of vendee receiving money after parting with possession of property in execution‑‑If pre‑emption money was in fact withdrawn by vendee, pre‑emptor could make application to Court for refund thereof from such vendee‑‑Revision being devoid of merit, no interference was called for in revisional jurisdiction. Wali Muhammad and others v. Kapuria Mal and others 80 IC 416; Kanhaya Lal v. Muhammad Shafi Khan 141 P 1, R 1913; Rehmat Khan and others v. Nawab Khan A I R 1925 Lah. 91 rel. Muhammad Younus Bhatti for Petitioners. This is a petition for revision against the decision of learned Additional District Judge, Rawalpindi, dated 13‑12‑1986 passed in Civil Appeal No. 106 of 1986 setting aside order, dated 13‑10‑1985 of learned Civil Judge Kahuta and accepting the application of Subedar Muhammad Rashid filed under section 47 Civil Procedure Code for annulment of the effects of execution and for avoidance of Mutations No. 1950 and 2250. 9 Kanals 12 Marlas of land with Shamilat rights situate at Mauza Darkali Mamoori, Tehsil Kahuta, was sold by one Muhammad Mushtaq to Subedar Muhammad Rashid. Muhammad Taj pre‑empted the sale and obtained decree for possession of the land on 3‑11‑1977 subject to deposit of Rs.4,000 as its sale price before 4‑12‑1977, failing which it was observed that his pre‑emption suit would stand dismissed. Deposit was made on 4‑12‑1977. Despite default in the late deposit of pre‑emption money, on 29‑10‑1980 Muhammad Taj decree‑holder sued out execution to recover possession of the land in suit and succeeded to have a warrant of possession issued from the execution Court. In pursuance whereof suit land was mutated in his favour vide mutation No. 1950 dated 29‑12‑1980. It appears that on the basis of this mutation, Muhammad Taj, later on, transferred the suit land alongwith some other land to Mahboob Ali vide mutation No. 2250 sanctioned on 29‑7‑1983. Subedar Muhammad Rashid filed a suit against Muhammad Taj and Mehboob Ali claiming that he was owner in possession of the suit land and that since the decretal amount was not deposited in Court within the time limit fixed, pre‑emption suit filed by Muhammad Taj stood dismissed and consequently execution proceedings were null and void and the mutations sanctioned on the basis of a warrant of possession issued from the execution Court were not binding upon him. This suit was contested, but the trial Court found for Subedar Muhammad Rashid and decreed the suit to him on 7‑3‑1984. On appeal (Civil Appeal No. 221 of 1984) filed at the instance of Muhammad Taj and Mahboob Ali this decision was reversed on the technical ground that the proper remedy for the respondent Subedar Muhammad Rashid was to file an application under section 47 Civil Procedure Code and that the suit filed by him for obtaining the necessary relief was incompetent. This decision of learned Additional District Judge is dated 17‑3‑1985. It may be observed that in coming to this conclusion, learned Additional District Judge had relied on the decision of this Court in Muhammad Din v. Syed Irshad Ali Shah etc. 1983 C L C

804. On 29‑3‑1985, respondent Subedar Muhammad Rashid approached the Civil Court at Kahuta with an application under section 47 Civil Procedure Code and impleaded Muhammad Taj and Mahboob Ali both as respondents in the application. Necessary facts as to the sale in his favour, pre‑emption suit by Muhammad Taj, non‑deposit of pre‑emption money in time having been stated as also the effects thereof, he requested the Court for avoidance of Mutation No. 1950 sanctioned in favour of Muhammad Taj and Mutation No. 2250 attested in favour of Mahboob Ali. Along with the application, respondent also moved an application for condonation of delay. Both the respondents, who are petitioners before this Court, vehemently contested the application. Learned Civil Judge, on consideration of the matter placed before him, found that no ground was disclosed for condonation of delay and dismissed both the applications as being barred by limitation. Respondent went up in appeal and succeeded to have the decision of the trial Court reversed on 13‑12‑1986 by learned Additional District Judge, Rawalpindi. It is this decision of the learned Judge below, which has been canvassed in revision before this Court filed through Muhammad Younus Bhatti, Advocate. It is contended on behalf of the petitioners that impugned judgment of learned Additional District Judge is incorrect and that given by the primary Court proceeds on correct assessment of the circumstances and the law applicable thereto. Before I proceed to examine the point and express my opinion, it may be observed that copies of judgment and decree passed in the pre‑emption suit as also the copies of execution application, warrant of possession, report of the Bailiff /Girdawar and the mutations sanctioned by the Revenue Officer in pursuance to the decree of the Court have not been placed on record. In the absence of the execution application and the report made by the Ahmad of the Court as to the deposit of pre‑emption money, it cannot be said with certainty as to how the warrant of possession was issued by the execution Court when the pre‑emption amount had not been deposited in time as ordered in the judgment and decree. It was not denied that the pre‑emptor was obliged comply with the mandatory terms of the decree before he could be permitted to reap its fruits. There is a long line of judgments without a single dissension that pre‑emption, which is a right of substitution, takes effect only when the pre‑emptor complies with the condition laid down in the pre‑emption decree and pays the purchase money in Court within time and it is then that the title to the property is vested in him and is divested from the vendee. Consequently, the title of the pre‑emptor commences from the date of payment into the Court within the time limit fixed by the Court and not from the date of the decree or sale. There is also no dearth of authority to support that payment should be of the full amount stated in the decree. As ruled by the Supreme Court in Shah Wali v. Ghulam Din alias Gaman and another P L D 1966 S C, 983 (relevant observations at page 993):‑‑ "A decree passed in a successful pre‑emption suit is of a composite and contingent, character. If the pre‑emptor satisfies the condition imposed on him with regard to the deposit of pre‑emption money, the decree for possession becomes operative in his favour. However, if he commits a default in that respect the decree dismissing the suit becomes effective." This very view was reiterated by the Supreme Court in Ghulam Muhammad and another v. Irshad Ahmad and another P L D 1982 S C 282, Dost Muhammad and others v. Nazar Hussain Khan and others 1983 S C M R

683. In Keshav Yeshwant Koli v. Krishna Balaji Mahar and others A I R 1939 Nagpur 107 Vivan Bose,' J. of Nagpur High Court, took the view that Order XX Rule 14, Civil Procedure Code was very precise and meant that decree, which is conditionally in plaintiffs favour ceases to be so the moment the due date passes without payment and after that it becomes a decree in the defendant's favour. In the absence of a valid extension of time by the competent forum after the time for payment/deposit of pre‑emption money has run out and the amount has not been deposited in time, a pre‑emption decree becomes void, necessary result of which is that pre‑emption suit stood automatically dismissed by force of compulsive provisions of law in Order XX Rule 14, Civil Procedure Code as also the terms of the decree, in which it is couched. It looks strange as to how when the amount was not deposited in time and the pre‑emption suit had been dismissed, execution Court issued a warrant of possession for delivery of the land to a person, who had no title to it. In the dismissal of the suit, vendee's title to the land became indefeasible. Physical possession was not delivered because the land sold was a share out of a joint land. Learned counsel readily conceded to the Court that only symbolical possession was given under the decree. When such are the circumstances, can the petitioners lay hand to the property or that it was the right of the vendee‑defendant to ask the Court to undo the wrong done to his rights by mistake of the Court. Presumably, correct facts as to the actual date of deposit of pre‑emption money may not have been disclosed to the execution Court. Responsibility in the absence of relevant material cannot be fixed. Learned counsel presses in aid the bar of limitation and principle of laches but on deeper consideration of the matter and correct application of the legal principles applicable thereto, I find myself unable to agree with him, firstly because when the suit had been dismissed, no execution could take place; secondly it is elementary principle of law that an act of the Court should not be permitted to injure the rights of any person. The moment Court comes to know that by its own act an injury has been caused to party, 'it is its duty both morally and legally to step in and rectify the mistake and put the parties in a position which they would have occupied but for the error committed by the Court. Learned counsel did not bring to my notice any decided case that in such circumstances, there was a particular period of limitation, which prevented the Court from coming to the rescue of the respondent. Basically, execution proceedings appear to be totally void and out of the void proceedings, petitioners cannot claim any benefit. Contrary course would certainly enrich the petitioners at the instance of the respondent, which is not the purpose of law. Heretofore, I was discussing the point without the aid of the decided cases. However, on looking through the case‑law (not cited at the Bar) I have been able to lay my hands, on cases, which support my view. In Wali Muhammad and others v. Kapuria Mal and others (80 Indian Cases 416) Broadway, J. of the Lahore High Court, took the view that where after the pre‑ emptor/decree‑holder had obtained possession of the pre‑empted property, it was discovered that pre‑emption money had been short paid by one rupee, the vendee was found entitled to the restoration of the property. In taking this view, his Lordship relied on a decision of this Court in Kanhaya Lal v. Muhammad Shafi Khan 141 P L R 1913, wherein pre‑emption price was short paid by one anna only and the Court had ruled that it was not a full payment and the possession of the land was restored to the vendee. This view of the Court was further approved in Rehmat Khan and others v. Nawab Khan A I R 1925 Lah.

91. Lastly learned counsel submitted that the vendee has withdrawn the pre‑emption money from the Court and thus was estopped to reagitate the dispute. Firstly, this point has not been agitated in the Courts below nor taken in the grounds of revision filed in this Court. It has been urged for the first time at the hearing. There is no materia to hold that pre‑emption money was withdrawn by the vendee. However, acquiescence by conduct cannot be deduced from the mere circumstance of the vendee receiving money after parting with possession of the property in execution. If as stated, the pre‑emption money was withdrawn by the vendee, it shall be, open to the petitioner to make an application to the competent court for its refund from the vendee. On review of the entire set of circumstances and the steps taken the respondent to vindicate his rights in the property, I find myself in complete agreement with the learned Judge below. His judgment besides being a legal judgment is just also. No interference is called for. In result, civil revision fails and is dismissed in limine. A.A./M‑545/L Revision dismissed.