P L D 1952 Lahore 376 (PLP)

KAYANI, J.‑On the 17th of July 1946, three persons, namely Abdullah, his son Saeed Ahmad and Pir Bakhsh, jointly filed a suit for the pre‑emption of 6 kanals 13 marlas of land situate in village Jia Musa of Lahore District. On the 6th of August, 1946, in pursuance of an order of the Court, Rs. 800, representing 1/5th of the pre‑emption money, were deposited in the treasury on behalf of the three plaintiffs, the tender. having been made by Abdullah. Issues were struck in the case on the 3rd of August 1948, and evidence was to be recorded on the 27th of October 1948, when, however, the hearing was adjourned to the 14th of December 1948, to enable the parties to arrive at a compromise. On that date the first two plaintiffs, namely, Abdullah and his son, in the absence of the third, compromised the suit and the Court, believing that the compromise was by all the plaintiffs, dismissed the suit. Thare after the third plaintiff applied for restoration and on the 7th of July 1949, the suit was restored. Meanwhile on the 4th of March, 1949, the first two plaintiffs had applied for a refund of their share of the deposit money. This application was kept pending until the appli cation for restoration was heard. But while it still lay un-dis posed, a second application for refund was made on the 7th of July 1949, the date of restoration of the suit. This was accepted on the same day and the third plaintiff, Pir Bakhsh, was ordered to make up the deficiency in the deposit by the 18th of July, 1949. On that date Pir Bakhsh prayed for two months' time to be granted to him and he was allowed, not two months but a fortnight. The last day on which he had to make the deposit was the 2nd of August, 1949, but as this was declared a holiday, the parties appeared on the 3rd of August, 19‑19, and since no deposit had been made by then, the plaint was rejected, apparently under section 22 subsection (4) of the Pre‑emption Act. An appeal against the order having been dismissed by the District Judge, Pir Bakhsh has come up in second appeal. The decision rests on an interpretation of section 22 of the Act which it is necessary to reproduce entirely, except subsection (6) :‑ "22. (1) In every suit for pre‑emption the Court shall at, or at any time before, the settlement of issues require the plaintiff to deposit in Court such sum as does not, in the opinion of the Court, exceed one‑fifth of the probable value of the land or property, or require the plaintiff to give security to the satisfaction of the Court for the payment, if required, of a sum not exceeding such probable value within such time as the Court may in fix such order. (2) In any appeal the Appellate Court may at any time exercise the powers conferred on a Court under subsection (1). (3) Every sum deposited or secured under subsection (1) or (2) shall be available for the discharge of costs. (4) If the plaintiff fails within the time fixed by the Court or within such further time as the Court may allow to make the deposit or furnish the security mentioned in subsection (1) or (2), his plaint shall be rejected or his appeal dismissed, as the case may be. (5) (a) If any sum so deposited is withdrawn by the plaintiff, the suit or appeal shall be dismissed. (b) If any security so furnished for any cause becomes void or insufficient, the Court shall order "the plaintiff to furnish fresh security or to increase the security, as the case may be, within a time to be fixed by the Court, and if the plaintiff fails to comply with such order, the suit or appeal shall be dismissed." It would appear that under subsection (1) it is the duty of the Court to require the plaintiff to make the deposit and that the deposit should be made, in any case, before the settlement of issues. The mere fact that under subsection (2) the Court of appeal can exercise the powers of the original Court under subsection (1), does not mean that when the original Court is exercising those powers, it can require the deposit to be made even after the settlement of issues. If the deposit is not made within the time fixed or within the extended time, sub section (4) requires that the plaint should be rejected. If the amount deposited is withdrawn by the plaintiff, the suit shall be dismissed and there is no provision for any further time to be given for re‑depositing the money. If, however, instead of requiring a cash deposit, the Court directs the furnishing of security, then if the security "becomes void or insufficient, the Court shall order the plaintiff to furnish fresh security or to increase the security" within a time to be fixed by the Court and if the plaintiff does not comply with this order, his suit shall be dismissed. It would appear that while provision was made for the security becoming void or inadequate, it was not contemplated that the amount deposited under subsection (1) would ever be allowed to be withdrawn in part ; but if there was a total with drawal, then the suit was to be dismissed. This was because withdrawal could be effected only by the plaintiff himself and if he chose to withdraw it, he did so at his own risk. But it is clear that under section 22, there is only one pro vision for the rejection of the plaint and only one provision for the dismissal of the suit. The plaint is rejected if the plaintiff fails to comply with the order of the Court made under subsection (1) before the settlement of issues and the suit is dismissed if the deposit made under subsection (1) is with drawn by the plaintiff. Now since, in the first instance, a proper deposit had been made in compliance with the order of the Court under subsection (1), there was no justification for rejecting the plaint under subsection (4).,Then the question is whether the suit could be dismissed as a whole. Now admittedly the money was withdrawn by Abdullah and his son at a time when they were no longer plaintiffs and when the only plaintiff on the file was Pir Bakhsh, and since it was not withdrawn by Pir Bakhsh, it cannot be said that the provision of subsection 5 (a) which rests on a withdrawal by the plaintiff only was infringed ; and if that was not infringed then the suit also could not be dismissed. We were asked by the learned counsel for the vendee to act upon principles of equity, justice and good conscience in the absence of any provision in section 22 to meet a case where two out of three plaintiffs have withdrawn their share of the deposit, leaving in the treasury a deposit that is insufficient, and we were told that as a matter of fact the first Court had accepted those principles by following the course which the Court would follow in the event of the security becoming void or insufficient. It was for that reason that Pir Bakhsh had been given time to make up the deficiency and since he had failed to do so, the Court had treated him as though he had failed to comply with the original order. We find it unnecessary to adopt any principle of equity as the language of section 22 does not confront us with any impasse. Whether a deposit is or is not made, the suit case proceed, but if a deposit is to be made, it should be required to be made before the settlement of issues. It would appear that, no order made after that stage is being on the plaintiff. In Gobind v. Kishan Chand (52 P R 1891) it was held that in a suit for pre‑emption, the latest stage at which the Court may make an order under section 16‑A, Punjab Laws Act, 1872, requir ing the plaintiff to pay into Court the price or market value of the property, is up to the time when issues are settled and not afterwards. There was no mention in section 16‑A of the stage at which the order should be made but the learned Judges held that since a plaint could only be rejected under the Code of Civil Procedure up to the time when issues are settled and not afterwards, that appeared to be the latest stage at which an order requiring a deposit by a plaintiff could law fully be made, because that was the latest stage at which an order could be made rejecting a plaint. It will be noticed that the Pre‑emption Act of 1913 has accepted this view by specifically providing that the requisition for deposit should be made before the settlement of issues. There was consequently no provision for any deposit to be made at the stage when the trial Court required Pir Bakhsh to make the deposit and no provision whatsoever for any defi ciency to be made up. Further we are not sure that the Court acted properly in allowing the first two plaintiffs to withdraw their share of the deposit, assuming that the shares claimed by them were rightly claimed. The Court had in the first instance required all the three plaintiffs to make the deposit and it had been made in time. What share each of them had in the deposit was a matter among themselves and not a matter providing any scope for adjudication by the Court. Pir Bakhsh, in this case claimed the entire deposit to be his own but even if there had been no such claim, once a deposit had been made for the purposes of the suit, it should not have been allowed to,' be withdrawn if there was a single plaintiff prosecuting the suit But whether that was a proper order or not, the stage when the present plaintiff should have been required to make the deposit is long past and the suit can proceed even without any deposit having been required and made. We, therefore, accept the appeal and remand the case to the original Court for trial. The counsel for the parties have been directed to inform their clients to appear in the original Court on the 28th of April 1952. In the circumstances of the case, there will be no order as to costs in this Court. A. H. Appeal accepted.