P L D 1965 (W (PLP)

Zaman Mehdi Khan v. Hayat Khan A I R 1938 Lah. 452; Zorawar Singh v. Jasbir Singh A I R 1938 Lah. 606; Muhammad Ahmad v. Aziz‑ur‑Rahman A I R 1947 Lah. 72 and Ghulam Muhammad v. The Crown I L R 14 Lah. 284 ref. Raja Said Akbar Khan for Appellant. Mian Muhammad Shafi and Muhammad Ishaque Faruqi for Respondents. Dates of hearing : 12th, 22nd October, 2nd November, 14th December 1964 and 5th January 1965. A suit for possession by pre‑emption was filed by respondent No. 1 on the 17th of March 1959 against the appellant and respon dent No. 2 pre‑empting sale of 44 kanals 15 marlas of land situate in village Mahmood Booti, Tehsil and District Lahore, sold on the 11th of April 1955 by respondent No. 2 to the present appellant by a registered sale deed for a sum of Rs. 6,153‑2‑

0. On the 14th of May 1959 an order was passed by the trial Court directing the plaintiff to put in a security bond for one‑fifth of the sale money by the 30th of July 1959. On this next date of hearing, an objection having been taken to the sufficiency of the stamp on the security bond filed by the plaintiff, the Court made an order to the effect that the defendant's counsel objects to the stamp on the security bond, and, therefore, the case should come up for arguments on the 11th of September 1959. Immediately below this order, there appears another order of the same date saying `P. S. The plaintiff wants to put in zar‑i panjam. The zar‑i- panjam in cash should be deposited by the next date fixed." In pursuance of this order the zar‑i panjam was deposited on the 2nd of September 1959 under orders of the Court. Against this order of accepting zar‑i panjam in cash after an order having been made to put in security bond at an earlier date, the present appellant preferred Revision Petition No. 266 of 1959 in this Court and the same was dismissed in limine on the 10th of December 1959.

2. In the trial Court, however, an objection was raised by the appellant that the plaintiff‑respondent had not complied with the order of .the Court in executing security bond on a proper stamp‑paper within time and, therefore, the plaint was liable to be rejected under section 22 (4) of the Punjab Pre‑emption Act, 1913. This objection was resisted by the respondent and the following three issues were framed :‑ (1) When and what order was passed regarding zar‑i panjam or security? (2) How compliance took place? (3) Were the orders varied and has the plaintiff complied with the last subsisting order? Later on the 24th of March 1960 another issue with regard to valuation for purposes of court‑fee and jurisdiction was also framed by the trial Court. The trial Court upheld the objection of the vendee and rejected the plaint under section 22 (4) of the Punjab Pre‑emption Act. In view of his findings on the aforementioned three issues, he did not give any finding with regard to the issue on valuation. The plaintiff's appeal against this order succeeded and the judgment of the Court below was set aside and the case remanded for further proceedings. It is against this order of the learned District Judge that the vendee‑defendant has come up in appeal.

3. The first contention of the learned counsel for the appellant is that the order dated the 30th of July 1959 adjourning the case to the 11th of September 1959 having been passed, the subsequent order passed on the same day was not passed in the presence of the appellant and, therefore, he had no opportunity to object against it. There is no material on .the record to sustain this contention and the same is repelled.

4. It is further contended that the second order dated the 30th of July 1959 does not show that the Civil Judge applied his mind to the facts of the case and consciously extended the period for deposit. It is also contended that the trial Court having exercised its discretion ordering filing of a security bond, it was not competent at any subsequent stage to alter it into a cash deposit. In support of these contentions the learned counsel for the appellant has relied on Zaman Mehdi Khan v. Hayat Khan (A I R 1938 Lah. 452). In that case the plaintiff was ordered to furnish security under section 22 (1) of .the Punjab Pre‑emption Act. He was later directed to deposit cash within a certain time as the surety withdrew. The plaintiff failed to do so and as a result the suit was dismissed. On appeal, the District Judge held that the security bond having become void, the Court should have asked for fresh security and not cash under section 22 (5) (b) and this view of the District Judge was affirmed by the High Court. The next authority relied on is Zorawar Singh v. Jasbir Singh (A I R 1938 Lah. 606) wherein the learned Judges observed that the Legislature had not intended to empower the Court to extend time under section 22 (5) (b) and, therefore, the Court had no power to extend the time once fixed by it under subsection (4) of section

22. Reliance was also placed on Muhammad Ahmad v. Aziz‑ur‑Rahman (A I R 1947 Lah. 72).

5. As against this the learned counsel for the respondent has maintained that since the revision petition of the appellant had been dismissed in limine by this Court at an earlier stage against the order dated the 30th of July 1959 of the trial Judge to furnish cash security instead of security bond, the question had become res judicata and cannot be agitated in second appeal. In support of this assertion the learned counsel has relied on Ram Kirpal Shukul v. Mst. Rup Kuarl (11 I A 37). The authority is clearly distinguishable because in a revision petition when this Court declines to interfere and the revision petition is dismissed in limine, it cannot be said that the question before this Court has been heard and finally decided, for the reason that the opposite party is not before the Court at motion stage and mere refusal of this Court to exercise jurisdiction of supervisory nature under section 115 of the Code of Civil Procedure does not mean that the decision assailed in the revision petition has been in any manner affirmed by the High Court. The argument fails and is rejected.

6. The other contention raised by the learned counsel for the respondent is that although an order has been passed by the learned trial Court on the 30th of July 1959 on the request of the plaintiff permitting him to put in cash security, even the security bond filed on the 30th pf July 1959 was properly stamped and if there was some objection to the insufficiency of the stamp it could have been entertained on payment of penalty under the Stamp Act. The security bond under section 22 of the Punjab Pre emption Act is to be stamped both under the provisions of the Stamp Act and the Court‑Fees Act, and, therefore, the decision Ghulam Muhammad v. The Crown (I L R 14 Lah. 284) relied on by the learned counsel for the respondent rather supports the opposite‑party. The security bond was patently insufficiently stamped. No attempt was made by the respondent to make up the deficiency by the appointed date. There was no compliance of the order of they Court passed on the 14th of May 1959. The subsequent order altering the security bond into cash deposit was erroneous in la as 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, nor could the period fixed for filing security bond be extended under the provisions of the Punjab Pre‑emption Act.

7. In result the appeal succeeds, the order of remand passed by the learned lower appellate Court is set aside and the judgment and decree of the trial Court restored. However, there will be no order as to costs. A. H. Appeal allowed.