1992 PLP 46 (MLD)

In a suit for pre-emption filed by Sher Bahadur Khan and Haji Ghulam Qadir Khan, plaintiffs-petitioners herein, the Court vide order dated 14-3-1991 directed them to deposit 1/3rd of the sale price mentioned in the registered sale deed dated 15-3=1990 in cash and to furnish bank guarantee for the remaining 2/3rd amount under section 24 of the N: W.F.P. Pre-emption Act, 1987 (hereinafter referred as the Act). The petitioners' counsel submitted an application for review of the order dated 14-3-1991 but the same was dismissed on 30-3-1991. It is against the order dated 30-3-1991 that this Civil Revision under section 115, C.P.C. had been filed.

2. S. Zafar Abbas Zaidi, Advocate for the plaintiffs-petitioners challenged the impugned order, firstly on the ground that the plaintiffs-petitioners could not be asked to deposit the amount in cash or to furnish bank guarantee, as the sale price mentioned in the registered sale-deed was fictitious, and that the Court should have asked them for deposit of the market value of the land as envisaged in sections 27 and 28 of the Act ibid. Secondly that the matter should have been decided by the Court on the basis of oath offered within the meaning of Article 163 of the Qanun-e-Shahadat, 1984. Lastly that under section 3 of the Act while interpreting and applying the provisions of the Act, the Court shall seek guidance from the Holy Qur'an, Sunnah and Fiqh. Learned counsel for the petitioners was of the view that the provisions contained in section 24 of the Act are un-Islamic.

3. Mr. Khuda Bakhsh Baluch, Advocate for the respondents, on the other hand contended that direction to deposit 1/3rd of the sale price in cash and to furnish bank guarantee for the remaining 2/3rd was rightly made under section 24 of the Act and the fact whether the amount mentioned in the registered sale-deed was fictitious or not is to be considered at the time of trial. Replying to the arguments of the learned counsel for the petitioners that the provisions of section 24 of the Act are un-Islamic, learned counsel for the respondent argued that it is not the function of this Court to declare the said provision as un-Islamic, as it is the job of the Federal Shariat Court. Reliance was placed on the case of Mir Afzal Khan v. Ejaz Akbar (PLD 1991 SC 215). He further argued that the Court must act in accordance with the law no matter if the provision made is harsh. PLD 1991 Lahore 8 was referred.

4. I have heard the learned counsel for the parties and have applied my mind to the respective contentions of the learned counsel for the parties raised before me. I am of the view that the Court while making direction for deposit of one-third of the sale price in cash and to furnish bank guarantee for the remaining two-third has acted in accordance with law. Section 24 of the Act reads as under: -- "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 and for the remaining two-third furnish bank guarantee to the satisfaction of the Court within such period as the Court may fix: Provided that such period shall not extend beyond thirty days of the filing of the suit: Provided further 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 and a bank guarantee to the remaining two-third of such probable value: Provided also that the plaintiff may, in lieu of bank guarantee, deposit the required amount in cash. (2) Where the plaintiff fails to deposit one-third of the sale price or the probable value of the property and the required bank guarantee under subsection (1) within, the period fixed by the Court, his suit shall be dismissed. (3) Where the plaintiff withdraws the sum deposited by him or the bank guarantee furnished by him under subsection (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 the pre-emptor."

5. A bare reading of the section reproduced above would show that the Court is under obligation to direct the plaintiff to deposit one-third of the sale price of the property in cash and for the remaining two-third furnish bank guarantee to the satisfaction of the Court. This direction can be made only when sale price is mentioned in the sale-deed or in the mutation (see the second proviso). The questions of actual payment of price or its fixation in good faith or about market value of land are to be resolved at the time of trial as envisaged in sections 27 and 28 of the Act, and not at the initial stage of the suit as has been argued by the learned counsel for the petitioners. There is no provision in the Act for decision of the-deposit of the sale price on the basis of oath. The provisions of Article 163 of Qanun-e-Shahadat, 1984 are applicable only when plaintiff takes oath in support of his claim in a case for decision.

6. The provisions of section 24 of the Act cannot be said to be un-Islamic because the object of enactment of N.W.F.P. Pre-emption Act, 1987 was to bring the pre-emption law in conformity with the Injunctions of Islam as set out in the S Holy Qur'an and Sunnah. This law is, therefore, an Islamic law. If any of the provisions is considered as un-Islamic, for the purpose this Court has no power to declare so. Similar point came under discussion before the circuit Bench Abbottabad of this Court in the case of Mir Afzal Khan v. Ejaz Akbar cited above wherein the prayer in revision was to declare section 29 of the Act as, repugnant to Qur'an and Sunnah. The revision was dismissed on the ground that the High Court had no such jurisdiction because it was the function of Federal Shariat Court to grant or pot such relief. While refusing leave to appeal in this case (PLD 1991 SC 215), the august Supreme Court at page 217 observed as under: ‑‑ "In so far as it goes the view expressed by the High Court that the said Court has no jurisdiction to declare the exemption under the newly enacted 1987 N: W.F.P. Pre‑emption Act as being against the injunctions of Islam as contained in the Qur'an and Sunnah is correct. Without disputing this proposition learned counsel however insisted that another round of litigation for seeking a declaration from the Federal Shariat Court on the same lines as held by the Supreme Court in the case of Said Kamal Shah was not intended by the Constitution. When pointed out that newly‑added Chapter 3‑A of the Constitution kept separate and apart the Court functions and the legislative functions, it was not pu‑Able for the Court to go beyond the declaration and that it was for the legislature to enact proper and correct legislation, learned counsel could not advance the case any further. He, however, rightly stated that if the petitioner again moves the Federal Shariat Court on the assumption that there is some provision in the new enactment which is against Our'an and Sunnah, he himself might not be benefited. This by itself is no ground for interference when the question involved is covered by a Constitutional mandate. With these observations we find no force in this petition. Leave to appeal, accordingly is refused."

7. The foregoing observations of the august Supreme Court support the view that the High Court has no jurisdiction to declare provisions of section 24 of the Act ibid, as un‑Islamic.

8. The scope of revision under section 115, C.P.C. is limited one. The High Court under revisional jurisdiction will interfere only when the subordinate Courts appear to have exercised the jurisdiction not vested in them by law or have failed to exercise the jurisdiction so vested or to have acted in the exercise of their jurisdiction illegally or with material irregularity. None of these conditions are fulfilled in this revision petition. The trial Court has directed for the deposit of one‑third of the sale price mentioned in the registered sale‑deed in cash and to furnish bank guarantee for the remaining two‑third amount. There appears no jurisdictional error committed by the lower Court in passing the order dated 14‑3‑1991, nor the Court in exercise of its jurisdiction acted illegally or with material irregularity, in as much as section 24 of the Act provides that in every suit for pre‑emption the Court is required to direct the plaintiff to deposit one‑third of the sale price in cash and for the remaining two‑third furnish bank guarantee within such period as the Court may fix provided that such period may not exceed beyond 30 days of filing of the suit. Since the order dated 14‑3‑1991 could not be reviewed, therefore, the subsequent order dated 30‑3‑1991 was rightly passed.

9. For the foregoing reasons, I find no merit in this revision petition which is hereby dismissed. The plaintiffs‑petitioners would now comply with the order p dated 14‑3‑1991 of 'the trial Court within thirty days. AA./1253/P Revision dismissed.