2006 PLP 73 (YLR)

MUHAMMAD JEHANGIR ARSHAD, J.

The petitioner who is defendant before the learned trial Court in a pre-emption suit filed by respondent, is aggrieved of the order dated 19-3-2005 passed by learned Additional District Judge, Mianwali, whereby the said learned Additional District Judge, while accepting appeal of the respondent against the order dated 3-11-2004 passed by learned trial Court dismissing suit of the respondent for pre-emption for non-deposit of 1/3rd of the sale price, remanded the case to the learned trial Court with the direction to fix the probable value of the dispute property and then order 1/3rd of that probable value/price to pay on behalf of the respondent/plaintiff within the period fixed by the trial Court.

2. The facts significant for the disposal of this Civil Revision are that against the sale of land measuring 20-Kanal and 18 Marlas through Mutation No.428 dated 12-5-2004 in favour of the petitioner Sahibdad Khan, Lal Khan, respondent filed a suit for pre-emption vide plaint dated 4-9-2004 in the Court of learned Civil Judge, Eisa Khel. The plaint was put up before the trial Court on 7-9-2004 when the learned trial Court besides directing registration of the said case, also directed to the respondent/plaintiff for the deposit of 1/3rd of the sale price, in the following terms:-- "I have heard the arguments and perused the record carefully. At this time it appears that Halqa Revenue Officer while attesting the mutation both in words and figures has written the sale price of Rs,40,000, therefore, 1/3rd of the sale price i.e. 13340 be deposited by the plaintiff on or before 22-9-2004." The petitioner/defendant on becoming aware of the said order of the learned trial Court moved an application on 22-10-2004 stating therein that in fact the sale price mentioned in the mutation was Rs.4,00,000 which though inadvertently was mentioned as Rs.40,000 by the Patwari yet the said omission was corrected by the Revenue Officer on 15-9-2004 and the sum of Rs,4,00,000 was duly incorporated in the relevant record. It was further stated in the said application that despite the above mentioned inadvertent mistake, the fact remains that the respondent in para-2 of the plaint himself admitted that the sale in dispute, in fact, took place for Rs.2,50,000 but a fictitious price of Rs.4,00,000 was entered in the mutation, therefore, there was no justification for the trial Court to have directed the respondent/plaintiff to deposit Rs.13,333 being 1/3rd of the sale consideration of Rs.40,

000. The learned trial Court allowed that application and dismissed the suit on 3-11-2004 holding that the respondent/plaintiff having failed to deposit the correct amount knowingly that the sale price as mentioned in the mutation was Rs.4,00,

000. Against this order of the learned trial Court dated 3-11-2004, an appeal was filed by the respondent/plaintiff which was allowed in the terms mentioned in the opening paragraph of this judgment. This order of the learned Additional District Judge has now been assailed by the defendant/vendee through the instant Civil Revision.

3. Heard. Record perused.

4. At the very outset when questioned as to how the respondent/plaintiff could ask the trial Court for deposit of 1/4th of the sale price of Rs.40,000 only, whereas in para-2 of the plaint, he himself had admitted that suit-land was in fact sold for Rs.2,50,000 but a fictitious exaggerated amount of Rs.4,00,000 was shown in the mutation in order to defeat the right of pre-emption, learned counsel for the petitioner failed to give any satisfactory explanation. The device adopted by respondent/plaintiff while obtaining order dated 7-9-2004 does not only show contumacy on his part but also appears to be the result of collusion between the respondent and the trial Court, otherwise, no justification at all existed for the trial Court to have directed the respondent/plaintiff for deposit of 1/3rd of Rs.40,000, in clear disregard to the contents of para.2 of the plaint. This however, was an act of the Court and subsequently by dismissing the suit of the respondent, the trial Court committed yet another legal mistake because dismissal of suit in fact, impliedly amounts to extending time for the deposit of 1/3rd of the amount shown in the mutation, whereas, there is no concept at all to extend the time for deposit of 1/3rd of price in presence of expressed provisions of section 24 of the Punjab Pre-emption Act, 1991, which clearly provides deposit of 1/3rd of the sale price of the property in cash within a period not extendable in any case beyond thirty days of filing of the suit.

5. Similarly, I wonder how and wherefrom the learned Additional District Judge, Mianwali (Mr. Javed Iqbal Warriach), derived the concept of determining the probable value of the property before passing direction for deposit of 1/3rd at the time of institution of the suit, whereas section 24 of the Punjab Pre-emption Act, 1991 simply talks of sale price of the property and such sale price has a reference in Proviso-II of the said section, as sale price mentioned in the sale-deed or in the mutation and only, if the price so mentioned appears to be inflated, the Court can require deposit of 1/3rd probable value of the property. If the course directed by the learned Additional District Judge while passing the order for deposit of 1/3rd of the sale price under section 2.4 of the Punjab Pre-emption. Act, 1991 is allowed to be followed, then I am sure that the plaintiff may easily circumvent the object of provisions of subsection (1) of section 24 of the Punjab Pre-emption Act, 1991, by simply moving an application requiring the trial Court to first determine the probable value of the property after recording of evidence of both the sides, as directed by the learned Additional District Judge in the impugned order and in this way, he can keep on lingering the suit at a very initial stage, without complying with the provisions of subsection (1) of section 24 of Punjab Pre-emption Act, 1991 because in such an eventuality the aggrieved party may have a recourse to appeal, revision, writ petition, etc. against the determination of such probable value of the property by the trial Court, which was never the object of section 24 of the above Act, for the reason that same was enacted for protecting the right of vendees against frivolous suits under the Pre-emption Act and it was in these circumstances that even the powers of the learned trial Court to extend time for deposit of 1/3rd of the sale price have been taken away, as against similar provisions contained in the old Punjab Pre-emption Act, 1913.

6. In the above mentioned circumstances, I am satisfied that the course adopted by both the learned Courts below, were neither legal or proper nor justified in any manner. If by dismissal of suit for non-deposit of 1/3rd of the sale price mentioned in the mutation or plaint, the learned trial Court acted without jurisdiction because the said non-deposit on the part of respondent was not due to his fault alone but was on account of the act of the Court as well. The learned Appellate Court equally acted without jurisdiction by directing the trial Court for fixing probable value of the disputed property after record evidence in the absence of any provision to this effect in the Punjab Pre-emption Act, 1991, while remanding case to the trial Court. Both the learned counsel for the parties, therefore, rightly agreed with the view of the Court that it would be in consonance with section 24(1) of Punjab Pre-emption Act, 1991 as well as true spirit of the said Act, if the respondent/plaintiff is directed to deposit 1/3rd of Rs.4,00,000, as mentioned in the mutation, within a period of thirty days from today.

7. Resultantly, the judgment of the learned Additional District Judge dated 11-3-2005 directing the trial Court to fix probable value of the suit property after recording evidence, being without lawful authority and jurisdiction, is set aside and this civil revision is disposed of with the direction that respondent/plaintiff shall deposit 1/3rd of the sale price of Rs.4,00,000 as mentioned in the mutation, which would come to Rs. 1,34,000 minus the amount, if already deposited, on or before 20-10-2005 with the trial Court, failing which the plaint shall be deemed to have been rejected with costs. The parties are left to bear their own costs.

8. Copy of this order shall be sent to the trial Court as well as the learned Additional District Judge-II, Mianwali for perusal. M.A.W./S-473/L???????????????????????????????????????????????????????????????????????????????? Petition disposed.