2004 PLP 1709 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been directed against the judgment, dated 2-10-2001 passed by a learned Single Judge of Lahore High Court, Rawalpindi Bench, in a revision petition arising out of a pre-emption suit. The essential facts for disposal of this petition are that the petitioner filed a suit for possession of land measuring 12 Kanals situated in the Revenue estate Ariari Tehsil of Kotli Sattyan District Rawalpindi, through pre-emption. The suit was filed on 1-12-1994 and the learned Civil Judge seized of the matter while issuing summons in the suit for service of the defendants for 4-1-1995, directed for deposit of 1/3rd pre emption money within one month and on failure of the petitioner to deposit the pre-emption money within the given period, the learned trial Judge, vide order, dated 4-1-1995, dismissed the suit. The petitioner preferred an appeal against the dismissal of the suit which was also dismissed by a learned Additional District Judge, vide judgment, dated 4-7-1995, with the observation that the extension in the time allowed for deposit of pre-emption money under section 24 of the Punjab Pre emption Act, 1991 was not possible. The petitioner being dissatisfied with dismissal of appeal invoked the revisional jurisdiction of the High Court by way of filing a civil revision and a learned Single Judge vide impugned judgment dismissed the revision petition with the following observations:- "(3). The contentions of the learned counsel are belied by his own stand. In the first place he submitted that he did not know about the passing of the order regarding deposit of the 1/3rd of the sale price as he had left the Court. But in the same breath he stated that the challan for deposit of `Zar-e-Soim' was obtained on 21-12-1994 i.e. well before the expiry of time for deposit of 1/3rd of the sale price. It is stated in para. 4 of the revision petition that the petitioner was informed by his learned counsel to deposit the sale price before the next date of hearing i.e. 4-11-1995. As far as medical certificate is concerned, no application for extension of time was filed by the plaintiff/ petitioner. The maximum period for deposit of the 1/3rd of the sale price under section 24 of the Punjab Pre-emption Act, '1991 is 30 days of the filing of the suit. The petitioner was granted the maximum time for the deposit of 1/3rd of the sale price by the learned trial Court.

4. For what has been stated above, this petition has no merit and is dismissed in limine. Learned counsel for the petitioner has raised the following contentions in support of this petition:-- (i) That the order, dated 1-12-1994 by virtue of which the petitioner was directed to deposit 1/3rd pre-emption money, consists upon two parts. In the first part of the order, summons were issued for service of the respondent for 4-11-1995 while the second part relating to the deposit of 1 /3rd pre-emption money was passed after the case was adjourned without the knowledge of the petitioner. The learned counsel submitted that this fact is supported by the order itself as the learned Judge after putting signature on the right side of the order sheet, inserted the word with interrogation mark. The learned counsel contended that since the order for deposit of 1/3rd pre-emption money was passed without the information of petitioner or his counsel, therefore, non-compliance of the said order within the time specified therein, was not a valid ground for dismissal of the suit. (ii) That inflated value of the suit property shown in the plaint was disputed by the petitioner in the written statement therefore, passing of an order of deposit of 1/3rd pre-emption money without determination of the probable value was in contravention of section 24 of the Punjab Pre-emption Act 1991, therefore, the non-compliance of the order if any, would be of no consequence. (iii) That the deposit of 1/3rd pre-emption money, beyond the target date was neither intentional nor due to the negligence of the petitioner and further no such objection was raised on behalf of respondent defendant, therefore, suo motu dismissal of suit by the trial Court was not legal. (iv) That the provision of section 24 of the Punjab Pre-emption Act, 1991 relating to the deposit of 1/3rd pre-emption money is un Islamic and is in conflict to the law laid down by this Court in Said Kamal Shah's case PLD 1986 SC 360. (v) That the delay in deposit of 1/3rd pre-emption money beyond the prescribed period was due to an act of the Court and in the light of principle that no one should be prejudiced by an act of the Court, the order of dismissal of suit must be ignored. The learned counsel placing reliance on 1995 SCMR 584 contended that it was alone a sufficient ground for setting aide the order under challenge. We have heard the learned counsel for the petitioner at length and perused the record with his assistance. The contention relating to lack of knowledge of the petitioner regarding the order of deposit of 1/3rd pre-emption money is devoid of any force as the order was passed in presence of the counsel who represented the petitioner in the trial Court, and no presumption can be raised as suggested by the learned counsel that a part of the order was written without the knowledge of the petitioner and his counsel or in their absence. The portion of the order relating to the deposit of 1/3rd pre-emption money appears to have been added after passing in writing the order of issuance of summons and adjourning the case for next date with the insertion of word which would negate the plea of lack of knowledge of the second part of the order. The challan for deposit of 1 /3d pre-emption money was obtained by the petitioner on 21-12-1994 and the last date of deposit was 1-1-1995 but no plausible explanation was offered by the petitioner for non deposit of pre-emption money in the intervening period. The case of the petitioner before the Appellate Court as pleaded in the grounds of appeal was that after obtaining the challan for deposit of 1/3rd pre-emption money on 21-12-1994 he due to sudden illness remained under treatment as indoor patient in Nasim Nursing Home, Rawalpindi, till 2-1-1995 and that amount was deposited on 3-1-1995, therefore, the delay of two days was sufficiently explained. The perusal of record shows that none of the grounds i.e. the passing of order in absence of the petitioner and his counsel and that inflated value of the suit property was shown as sale consideration, was taken before the Appellate Court. The ground that the requirement of deposit of 1/3rd pre-emption money under section 24 of the Punjab Pre-emption Act, 1991 was un-Islamic, was mentioned in the revision petition but was not agitated in the Court, therefore, was no need to discuss such question. The sole ground urged before the High Court was that the order relating to the deposit of 1/3rd pre-emption money was passed in absence of the petitioner and his counsel which has been found against the record. There is no cavil to the proposition that judicial act must be done with care and proper diligence and an act of the Court must not prejudice a person. In the present case, we find that the failure of the petitioner for non-deposit of 1/3rd pre-emption money within the time: given to him was not due to an act or omission of the Court. The contention of the learned counsel for the petitioner in this behalf is negated by the fact that as per record, the order was passed in presence of the learned counsel for the petitioner and he having obtained challan for deposit of 1/3rd pre-emption money on 21-12-1994 i.e. about 10 days before the last date of deposit was in the knowledge of order in question. The petitioner has not urged any other ground before the Appellate Court or the High Court except that he after obtaining challan for deposit of 1/3rd pre-emption he could not make deposit of the amount being confined to bed till 2-1-1995 deposited the pre-emption money on 3-1-1995. The consequence of non-compliance of the order passed under section 24 of the Punjab Pre-emption Act, 1991 in the dismissal of suit and this legal effect of non-compliance of the order passed by the Court under section 24 of the ibid Act was not supposed to be ignored for mere reason that the opposite party had not raised an objection in this behalf. The requirement of the law must be fulfilled and it is the duty of the Court to ensure that order passed under section 24 of the Punjab Pre emption Act, 1991, must be obeyed in letter and spirit and in case of default, the petitioner must face the consequence of dismissal of suit. The learned Judge in the High Court having dilated upon the grounds urged before him in detail, dismissed the revision petition and the questions which were not taken or agitated before the High Court cannot be allowed to be taken before this Court. We, in the light of foregoing discussion, have not been able toll find out any flaw in the order under challenge. The petition having no substance is bound to be dismissed. Order accordingly. Leave is refused. M.H./M-652/S Leave refused.