2007 PLP 1730 (YLR)

IJAZ-UL-HASSAN KHAN, J.--Facts necessary for the decision of instant civil revision are, that Qamar Zaman Khan, plaintiff instituted suit on 27-9-2004, against Nazir Ahmad and others, vendee-defendants to enforce his right of pre-emption in respect of suit-land, on payment of Rs.3,00,000 or the amount ascertained by Court. The learned Civil Judge, Malakand at Batkhela, directed the plaintiff to deposit in Court 1/3rd of the sale price of the property in cash before the date fixed i.e. 27-10-2004. The order was duly complied with. However, on 16-4-2005, an application was moved by the vendee-defendants, alleging that in fact the suit property was purchased in lieu of Rs.10,60,000 per receipt dated 6-4-2004 and as such, plaintiff be directed to deposit in Court 1/3rd of the aforesaid amount. The application was accepted and the plaintiff was directed to deposit 1/3rd of the pre-emption money before 23-7-2005. We plaintiff filed an application on 23-7-2005, for grant of extension in time in order to enable him to do the needful. The application was declined and resultantly suit was dismissed by judgment and decree dated 23-7-2005. An appeal was preferred thereagainst before learned District Judge/Zilla Qazi, Malakand at Batkhel, which did not succeed. The same was dismissed by judgment dated 1-11-2005, with the following observation:-

2. Mr. Muhammad Zahir Shah, Advocate for the petitioner contended with force that judgments and decrees of the courts below have been recorded in haste, without application of independent mind and previous order of trial Judge dated 27-9-2004 has been reviewed and a second order for the deposit of 1/3rd of the pre-emption amount has been passed in total disregard to the spirit of law, which cannot be allowed to remain in field.

3. In defence Mr. Alam Gul Khan, Advocate for the respondents, opposed the arguments of learned counsel for the petitioner and fully supported the impugned judgments and decrees passed by the Courts below. To augment the contentions, reliance was placed on Shahabuddin and 5 others v. Mir Ali Khan (2001 SCMR 543) and Haji Gul Nabi v. Mst. Sahib Jamala and 8 others (1994 SCMR 845).

4. I have considered the above submissions in the light of the relevant law, cited cases and the material on record.

5. In order to appreciate the contentions of learned counsel for the parties, I considered it appropriate to reproduce below section 24 of the N.-W.F.P. Pre-emption Act, 1997, which reads:-- "(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 a 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 or 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 sub-section (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 pre-emptor."

6. According to subsection (1) of section 24, the Court shall require the plaintiff to deposit in such Court one-third of the sale price of the property in cash and for the remaining two-third furnish bank guarantee. According to first proviso, such a period shall not extend beyond thirty days of the filing of the suit. According to proviso (ii), 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.

7. Before amendment of section 24 by North-West Frontier Province Pre-emption (Amendment) Act, 1992, Court had power to extend period not beyond 30 days from filing of suit, but under amended section 24, there is no statutory limit within which deposit has to be made and the matter has been left to discretion of Court to fix time within which deposit has to be made and its failure must result in dismissal of suit. By a finding section 24 of the Act, only the words "thirty days" have been omitted and rest of the provision has been kept intact, which means that once a time is fixed, pre-emptor shall be bound to comply with the same and neither he will be allowed to apply for further extension nor Court will be competent to allow the same.

8. Once a time was fixed, then pre-emptor would be bound to comply with the time so fixed and neither he would be allowed to apply for further extension nor Court would be competent to allow the same.

9. Having considered the matter from all angles, I find that submissions made by the learned counsel for the petitioner do no carry weight. The subsequent order of the trial Court, regarding deposit of 1/3rd of Rs.10,60,000 has not been brought under challenge by way of revision/appeal but the order of refusal of the trial Court to grant extension in time, has been assailed unsuccessfully. The judgments and decrees of the Courts below are in consonance with the spirit of law and hardly call for interference of this Court in its revisional jurisdiction. No illegality arbitrariness or fancifulness could be pointed out in the judgments impugned herein, even otherwise a lawful decision taken within the ambit of conferred jurisdiction can neither be interfered nor can be substituted in revisional jurisdiction. Muhammad Sultan v. Muhammad Ali Raja (2002 SCMR 1108) and Muhammad Ayub and others v. Mst. Nusrat Begum (2003 YLR 793).

10. In the result and for the foregoing reasons, finding no substance in this civil revision, I dismiss the same with no order as to costs. H.B.T./87/P Revision dismissed.