2001 PLP 1091 (SCMR)

MUHAMMAD BASHIR JEHANGIRI, J.

This appeal with the leave of the Court is directed against the judgment of a learned Single Judge of Lahore High Court, Multan Bench, whereby R.S.A. No. 134 of 1984 filed by the appellants was dismissed and the judgment and the decree passed by the two Courts below was upheld in a suit for pre-emption.

2. The facts relevant to the propositions raised in this appeal are that land measuring 738 Kanals, 8 Marlas situated in Mouza Qadirpur, Tehsil Mailsi, District Vehari, was sold by Mst. Abaida Mai to the appellants by virtue of registered sale-deed dated 24-4-1975 for a sum of Rs.11,34,

000. Kh. Ghulam Moin-ud-Din deceased-respondent represented by Kh. Nizam ud-Din and others his legal representatives filed a suit for possession by pre emption of the above sale on 22-4-1976, claiming superior right of pre emption as property of the aforesaid vendor and co-owner lay in the joint Khata. On 23-4-1976 the learned trial Judge ordered the pre-emptors respondents to pay Rs.2,28,800 as Zar-e-Panjam by 12-6-1976: On 7-6-1976, an application was moved by the pre-emptor for extension of time in which in Para 2, it was pleaded that the pre-emptor had sold his wheat but he had not been paid by then. On 10-6-1976, the learned trial Court extended time for the payment of Zar-e-Panjam by 22-6-1976. On this date, the learned trial Court directed him to make deficiency in the court-fee who made it up in accordance with the net profits before 22-6-1976. Instead of complying with the order of the Court for extension of time for payment of Zar-e-Panjam on or before 21-6-1976, another application was moved for furnishing of security instead of. cash deposit of Zar-e-Panjam. On 22-6-1976, the learned trial Court ordered furnishing of security for Rs.11,34,000 before 28-6-1976. On 3-6-1979, the appellants made an application seeking permission to amend the written statement in order to incorporate therein two preliminary objections, firstly, that the suit for pre emption brought by the respondents was barred 6y, time inasmuch as the deficit court-fee had been supplied only after the period of limitation and the extension in time was also secured from the trial Court through deceitful means and, secondly, that the respondents had failed to deposit the Zar-e Panjam within the time granted for the purpose and that the extension of time for the Zar-e-Panjam and the order permitting the plaintiff to furnish personal security instead of cash deposit of Zar-e-Panjam suffered from impropriety and illegality. It was also pleaded that the surety bond put in the Court was neither legal nor properly stamped and, therefore, the plaint was liable to be rejected. This application was, however, dismissed by the learned trial Court vide order dated 7-10-1979. The appellants filed a revision petition against the last-mentioned order which was accepted by the learned Additional District Judge, Vehari, vide order dated 23-9-1980. The fate thereof, however, has not been disclosed in the memorandum of appeal herein.

3. On the pleadings of the parties as many as seven issues including the relief were settled between the parties. But for the purpose of this appeal, the following two issues are crucial:

5. Whether the suit is barred by time on account of court-fee having been paid after the institution of the suit? OPD

6. Whether there existed no legal justification for the non-deposit of 1/5th amount and extension in time for its deposit coupled with substitution by or modification with security? OPD

4. Issue No.2 qua the claim of the pre-emptor as to the superiority of right of pre-emption against the vendee had been conceded in the written statement. Similarly, the issue as to the market value of the suit land was fixed at Rs.11,34,

000. Issue No.4 was not pressed before the trial Court. Issue No.5 was answered in the affirmative holding that the suit was barred by time. On Issue No.6, it was held that there was no justification either to extend the time for the deposit of Zar-e-Panjam and/or to substitute it with the one of allowing to furnish security. As a sequel of the finding on Issues Nos.5 and 6, the suit was dismissed. In appeal before the learned Additional District Judge, Vehari, the findings on Issues Nos.5 and 6 recorded by the learned trial Judge were reversed and it was held that the suit was neither barred by time nor there was any legal infirmity in allowing extension in time for deposit of Zar-e-Panjam and ultimately to substitute with the order of furnishing security. In the Regular Second Appeal before the learned High Court, exception was taken to the competence of the appellant before the First Appellate Court to file appeal on the ground that it had not been properly instituted inasmuch as it had been signed by Allah Ditta "the so -called attorney of the respondent-pre-emptors" and the same objection was reiterated before the High Court. The learned Judge in Chambers of the High Court repelled this contention and observed that the impugned power of attorney was general in effect in contradistinction to a special power of attorney and if at all the objection could be raised against the authority of the general attorney, the person who had executed the instrument in favour of Allah Ditta was empowered to have done it; that if Allah Ditta had misused the power of attorney or travelled beyond his domain, he could have been stopped from doing it by the executant. The appellants who were sued by the pre-emptors-respondents, had nothing to do with the power of attorney inasmuch as no prejudice had been caused to them by reason of so-called defect or draw-back, if any, inherent in the instrument. This objection was, however, ignored by the learned Judge in Chambers of the High Court. Insofar as the material Issues Nos.5 and 6, respecting which the two Courts below had recorded divergent findings the learned Judge in, Chambers of the High Court observed that if there had been any doubt qua the correctness of assessment made by the pre-emptor-respondents and it was not correct, the defendants-vendees, who are in cultivating possession of the land, must have ventured to have got the same worked out by approaching the revenue officials. No such effort was made by them and it would follow that Fard Khalis Munafa had rightly been prepared by the pre-emptor, who had hurried to make payment of the requisite amount of court-fee. It was further observed that the plaint was liable to rejection on account of deficient court fee, only if the plaintiff failed to make good the deficiency, even on having been allowed an opportunity for the object by the Court. Reference in' this context is made to the case of Muhammad Nawaz and others v. Muhammad Aslam and others (1990 SCMR 968) and Mst. Parveen v. Jamshaid Begum (PLD 1983 SC 227) and Siddique Khan v. Shakoor Khan (PLD 1984 SC 289). The ratio of the judgment of the learned Single Judge of the High Court is that if a suit is instituted in time, on payment of even deficient court-fee, and the deficiency is' made good afterwards, the suit cannot be treated as having been barred by the law of limitation. The finding of the learned First Appellate Court reversing that of the learned trial Judge under Issue No.5 was thus upheld. The objections of the appellant incorporated in Issue No.6 were also overruled by the learned Single Judge. In this context, it was observed that Zar-e-Panjam had to be deposited by the pre-emptor respondent before 12-6-1976. But before that on 7-6-1976, he applied to the Court for extension of time stating that the Government had purchased wheat from him but he had not been paid by them and because of paucity of funds he had not been able to comply with the order dated 23-4-1976. This application was accompanied by an affidavit. It was further held that this application was disposed of on 10-6-1976 and, therefore, the learned trial Judge in view of the reasons stated in the application was persuaded to allow the application and granted extension only of 10 days. In consequence according to the learned Judge in Chambers, the deposit was directed to be made before 22-6-1976. The next date, the learned Single Judge went on to observe, was 12-6-1976. But before that date, plaintiff's prayer for further extension to furnish security bond instead of deposit of Zar-e-Panjam on the same grounds was granted on 10-6-1976 as 11th of June, probably was Friday. It appears that the case was adjourned from 12-6-1976 to 13-7-1976 when another application was made on 21-6-1976 for permission to furnish security bond instead of making deposit of Zar-e-Panjam in cash. In disposing this issue, the learned Judge in Chambers observed as under: "A very important fact, relevant to the issue, must be taken note was that on 22-6-1976 was regular date of hearing in the suit, when the learned counsel for the parties were in attendance in Court and the aforesaid order was passed by the Court in their presence; and presumption would be that the learned counsel for the defendants even had been heard in regard to the plaintiff's prayer in question. It has strenuously been argued by the learned counsel for the defendants-appellants that the order had been passed in their absence and without hearing them. I do not think, they are correct there. Even if, however, what is maintained has any amount of force, the fact remains that the order was regularly passed and it cannot be urged that it was incompetently made. If the defendants had felt aggrieved over the order and the same had in any way caused prejudice to their interests, it was open to them to have agitated the matter in the higher Court. It was a revisable order, but the defendants did not bring it under challenge in any upper Court. The learned Civil Judge, while dealing with Issue No.6 held that it would be taken that deposit of Zar-e-Panjam had not duly been made and the orders extending the time for making the deposit and then substituting the cash deposit by personal security were without legal justification. It is indeed odd that the learned Civil Judge who was rendering final decision on 12-2-1981 was reversing the order of his own Court and he acted as if he was the higher Court and had the competence to find fault with the order of his predecessor. Whether or not the orders in question were made on any valid premises, the learned Civil Judge was not empowered to question, alter or undo the same, although a higher Court could do it. The learned. First Appellate Court has rightly observed that the orders in question had not been nullified in appeal or revision by any competent Court and had attained finality, and the learned Civil Judge was nobody to review the order of the same Court and draw adverse inferences from the orders passed by his predecessor. It was, however, open to the learned trial Court to vary or modify its order previously passed respecting deposit of Zar-e-Panjam in the course of the proceedings of the suit. Time may be extended and plaintiff may be permitted to furnish security instead of making deposit in. cash. Court had discretion in the matter. Manzoor Hussain v. Atiq-ur-Rehman (NLR 1979 Civil S.C. 812) and Ch. Zulfiqar v. Mian Akhtar Islam (PLD 1967 SC 418) may be referred to in this regard."

5. The vendees-appellants' objection to the order of trial Court allowing amendment of the written statement was found to be untenable on the ground that the appellants "were not vigilant enough to have assailed the said orders, by pursuing the permissible course, at the opportune moment. Allowing them to amend their pleadings did not amount to acceptance of their objections, which had, in any case, to be examined and determined at the time of final decision of the case". It was, therefore, concluded by the learned Single Judge that the Court had the powers to vary its original orders and exercise a fresh option" and that in any case, "the discretion of the trial Court in the matter is absolute and cannot be circumscribed or restricted by any extraneous consideration, divorced from statutory provisions." In this view of the matter, the position taken in the case by the First Appellate Court differing with that of the trial Court seas endorsed and resultantly the appeal was dismissed with costs.

6. Leave to appeal was granted to consider in this case the following proposition: "Whether on facts and circumstances of the case the learned High Court was legally justified in affirming the findings of the Appellate Court on Issues No.5 and 6? If the answer is in the negative, the effect of such finding on the pre-emption decree to which the respondent was found entitled?"

7. Mr. Gul Zarin Kiani, learned Advocate Supreme Court representing the appellants, contended that the respondents did not file appeal at all and, therefore, the finding of the learned trial Judge on Issue No.6 had attained finality. Reliance in support of this proposition was placed on Mst. Sardaro and others v. Mst. Nazran Begum and others (PLD 1985 SC 274).

8. The learned counsel reiterated the argument which was raised in the High Court that the powers conferred by section 22 of the Punjab Pre emption Act (I of 1913) (hereinafter called as the Act) calling upon. the pre emptor to deposit 1/5th of the pre-emption money and extending time for making such deposit and also to convert this order into furnishing the security bond instead of cash deposit of pre-emption money could not be legally exercised by the learned trial Court without notice to the defendants- vendees and, therefore, the learned trial Court in granting extension of time unilaterally and without application of mind had acted with material irregularity which order had to be set aside in revision. Reliance was made to Malik Barkat Ali Dogar v. Muhammad Shafi and others (PLD 1990 SC 60) and Niaz Muhammad Khan v. Mian Afzal Raqib (PLD 1974 SC 134). Another contention raised on behalf of the appellants was that the right of pre-emption was a personal right of the pre-emptor in the sense that this is created .in him by the provisions of sections 15 and 16 of the Act and accrued on account of the personal relationship which he may have with the vendor or it may appertain to him as a co-sharer in the property or a proprietor in that estate; further that it was also personal in the sense that it is an interest in pre-empted property which is protected solely against determinate individuals; that this plea was suggestive of the fact that the indulgence shown by the learned trial Court to pre-emptor-respondent was not tenable in view of the predatory nature aforesaid of the right of pre-emption. In support of this plea our attention was drawn to the case of Lal Din v. Allah Ditta (PLD 1967 Lahore 703) and Abdul Wahid etc. v. Ibrahim etc. (PLD 1966 (W.P.) BJ 8).

9. It was next contended that the instant suit was filed on the last day of limitation with insufficient court-fee, nonetheless the Court granted time to make up the deficiency of court-fee and, therefore, such order was plainly unjust.

10. The learned counsel lastly submitted that the power of attorney executed by the pre-emptors-respondents only empowered the attorney to manage the immovable properties and, therefore, he was not competent to file suit for pre-emption or prefer appeal there against inasmuch as the law was clear that the power of attorney must be strictly construed and that it was necessary to show that on a fair construction of the whole instrument, the authority in question is to be-found within the four corners of the instrument; either in express terms or by necessary implication. Reference in this context was made to: Shankar Tukaram Kakade v. Lakshmibai Shankarrao Ghadge (AIR 1928 Bombay 225) and Muhammad Afsar Khan and another v. Khadim Hussain and 3 others (PLD. 1978 SC (AJ&K) 143).

11. Mr. S.M. Zafar, learned Senior Advocate Supreme Court, on the otherhand, contended that the respondents had not raised the plea in the lower Court nor did they file.an appeal at all and, therefore, the findings of the learned trial Judge on Issue No.6 were validly negatived by reference to law laid down in the case of Mst. Sardaro (supra) in para. 10 of the case cited by the learned counsel for the appellants.

12. The learned Senior Advocate Supreme Court for the respondents -also urged that the object behind the conferment of right of pre-emption is that an owner of land in a village is not to be distressed by intrusion of a stranger who had intended to become co-sharer and, therefore, the right of pre-emption was neither predatory nor piratic but was a right with all its implications of a right. Elaborating it further, the learned Senior .Advocate Supreme Court urged that language employed in section 22(4) of the Act left open to the Court the same choice as the Court could exercise at the earlier stage under subsection (1) of section 22 (ibid) and as in this case, the time for making a choice had not expired, it could not be said that the option was no longer alterable and, therefore, the order for furnishing of the surety bond instead of .cash deposit was duly made. He had referred to the case of Malik Barkat Ali Dogar v. Muhammad Shafi and others (PLD 1990 SC 60).

13. In response to the objection raised to the propriety of power of attorney executed by the pre-emptors-respondents through Allah Ditta their attorney, it was maintained that a person holding power of attorney authorising him to make appearances, file applications and do all acts on behalf of the principal would be recognised agent of such party and that such person could validly institute suit and appoint counsel for the conduct of case. Mr. S.M. Zafar, learned Senior Advocate Supreme Court also pointed out that this objection was being taken for the first time in this Court and, therefore, the appellants were not entitled to any indulgence on this score particularly when even leave to appeal has not been granted on this proposition.

14. We tend to entirely agree with. Mr. S.M. Zafar, learned Senior Advocate Supreme Court appearing on behalf of the pre-emptors-respondents that leave has only been granted on the two propositions reflected in Issues Nos:5 and 6 and that rest of the proposition raised by Mr. Gul Zarin Kiani, learned Advocate Supreme Court for the appellants-vendees was not worthy of consideration in these proceedings. It would be clear from the record that. Issue No.5 that the suit was barred by time on account of court-fee having been paid after the institution of the suit was objected to in an application filed by the appellants-vendees. This application was dismissed by the learned trial Court which was challenged in revision before the learned District Judge alongwith the plea of amendment of the pleadings declined by the learned trial Court was set aside and it was held that the amendment of the pleadings could be allowed including the objection of deposit of "Zar-e -Panjam" .

15. We would, therefore, hold that the learned Appellate Court as also the learned High Court had rightly held on sound reasoning that the suit was not barred by limitation.

16. This Court had set at rest the controversy on the discretion conferred on the trial Court under section 22(4).(ibid) in the precedent of Ch. Zulfiqar Ali v. Mian Akhtar Islam and another (PLD 1967 SC 418) and illustrious Full Bench of this Court comprising of three Hon'ble Judges laid down the law as under:-- "The question which then arises is whether the trial Court was competent to vary its original order requiring security and to replace it by an order in the alternative from .that allowed by the law, viz., an order for deposit of one-fifth of the purchase price. At the date when the order of the 30th July, 1959, was made, issues had not yet been settled. In Zaman Mehdi Khan's case and that of Raja Khan, expressions have been used which indicate that in the view of the learned Judges of the Lahore High Court, such a power does exit, but it must be exercised before the settlement of issues and it must be exercised expressly. That view is, in our opinion; supportable upon a consideration of the wording of subsections (1) and (4) of section

22. There is nothing in subsection (1) to indicate that the choice can be made only once in a suit. It is well-known that the requirement of a cash deposit or security contained in the subsection is intended to guard against vexatious and mala fide litigation and thus, to guarantee a vendee against frivolous proceedings on the part of possible pre-emptors. The deposit is a token of good faith, and equally the security for the full amount of the purchase price constitutes a guarantee that plaintiff will meet whatever demand is made for money in case his suit succeeds. The furnishing of a guarantee -in one or the other form is made obligatory by subsection (1), but the subsection contains no words to indicate that the choice between the two forms of guarantee can only .be made once, and so far as the safeguard of the interests of the vendee is concerned, the two ,guarantees are to be placed on a level. An indication that the law does not impose so strict a condition that a form of guarantee once chosen cannot be altered by the trial Court within the time permitted is to be found in the wording of subsection (4) which reads as following: '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.' It seems to us that if the intention of the law were that the Court's first choice should be unalterable, there would have been no need to mention in subsection (4) both the alternatives, namely, the deposit as well as the security, and it would have been sufficient to say that the plaint should be rejected if the plaintiff should fail within the time fixed to comply with the order made by the Court in the relevant respect under section 22(1). A similar result might have been produced by adding the words 'as the case may be' after the words 'to make the deposit or furnish the security'. The language used in subsection (4) appears to us to leave open to the Court under subsection (4) the same choice as the Court could exercise at the earlier stage under subsection (1). In this case, the time for making a choice had not expired, so it could not be said that the option was no longer alterable. By an order in writing, the trial Court purported to vary the original order for security and replace it by the alternative order that the law allowed, for the marking of a deposit within a certain time and a deposit was duly made. Accordingly, we are unable to accept the view of the learned Judge in the High Court, which is expressed in the following words:-- 'the Court having allowed the plaintiff to furnish security in the first instance, it was left with no power -to direct him to make a deposit of one-fifth of the sale money'."

17. We are, therefore, of the considered view that if in a suit for pre-emption extension of time for deposit of Zar-e-Panjam or for that matter its substitution with the order of furnishing security instead of cash deposit is refused but allowed by the First Appellate Court and affirmed by the High Court the exercise of discretion by the First Appellate Court being neither fanciful nor arbitrary was certainly unexceptionable. Issue No.5, therefore, is found to have been correctly decided both by the learned First Appellate Court and the learned High Court.

18. There is no denying the fact that the objection qua the competence of the attorney of the pre-emptors-respondents was not raised at the appropriate stage and we could have ignored it in these proceedings. We have, however, decided to clarify the legal position on the competence of the attorney holder on behalf of the plaintiffs-respondents particularly with reference to the factual background of this case. The attorney has been authorised by the principal in the following words:--'

19. The underlined portion of the impugned power of attorney is in essence of the operative part and a bare reading thereof would show that the authority conferred on the attorney in the underlined portion of the power of attorney was much higher and extensive rather than the filing of the suit or of the appeal. Generally, in interpreting the power of attorney, it is ignored that it has two aspects: (i) the power to do something on behalf of the principal which is generally beneficial to him and (ii) the power to exercise the discretion depriving the principal of his right to his assets, properties etc. The part of the power of attorney which tends to accretion of the right to the proprieties and assets to the principal may not be interpreted in stringent ; terms for instance to file a suit or appeal as has been clearly laid down in the power of attorney in the instant case authorising the attorney to file suit/action either civil or criminal or to defend them if filed against the principal and to peruse it from the lower Court to the High Court. In the instant case the attorney has been authorised even to sell, bequeath the immovable property of the pre-emptors. Such a right tends to deprive the principal of his valuable rights in the immovable property. If the attorney has been given that much power there is no earthly reason as to why he should be deemed to, be deprived of the power to file suit or appeal on behalf of his principal.

20. Going into the every word of the general power of attorney in this case, it would be noticed that it vests full rights in the agent to perform the specified acts and to vest in him all the present and future property rights and interests of the principal. Besides this, many steps had been taken by the attorney in this case which could be taken up by a full-fledged holder of a power of attorney. Reference has been rightly made by Mr. S.M. Zafar, learned Senior Advocate Supreme Court to the testimony of the attorney made during the trial particularly that in the revision filed before the learned Additional District Judge wherein the appellants had themselves served the pre-emptors-respondents through the same attorney. Again pending decision of the revision before the learned Additional District Judge, file had been requisitioned on the application for amendment of the plaint moved by the respondents through the same attorney which related to the question of the a court-fee wherein Mr. Muhammad Arif, Advocate had signed. The reply of the appellants showed that no objection as to the authority of the attorney was raised. The learned Additional District Judge allowed the amendment in appeal by the respondents through Allah Ditta against which no such objection was ever raised. The attorney had obviously pursued all the steps vigorously in consequence of the plaint signed by him on 20-4-1976 and the application dated 7-6-1976 for extension of time was also filed by the attorney without any such objection. In short all the steps were taken by the attorney throughout the litigation without any demur on the part of the appellants and this objection having not been raised at any stage throughout the pendency of the litigation, it cannot be allowed to be raised at .the appellate stage in this Court.

21. For the foregoing reasons, we are of the considered view that no exception can possibly be taken to the findings of the First Appellate Court and those of the High Court in passing the impugned judgments and the decrees. We, therefore, find no substance in this appeal which is dismissed with no order as to costs. Q.M.H./M.A.K./Q-7/S Appeal dismissed.