1997 PLP 2664 (MLD)

4. Admittedly the order dated 27‑5‑1976 asking the petitioners/plaintiffs to furnish security in the sum of Rs.10,00,000 was not complied with. The learned counsel for the petitioner contended that the security bond for a sum of Rs.2,00,000 as accepted by the learned Trial Court without any objection. Therefore, the plaint could not be rejected saying that the order of the Court for furnishing security in the sum of Rs.10,00,000 was not complied with. He argued that at the time of accepting the security bond in the sum of Rs.2,00,000 no objection was raised by the official of the learned trial Court nor by the learned Court itself. In this respect the learned trial Court has observed that, "On the same analogy we are of the opinion that mere attestation of Court would not dismiss valuable right of defendant/vendee, which had accrued to them due to non‑compliance of pre‑emptor". Therefore, the mere attestation of the security bond by the learned trial Court would not defeat the valuable rights of the defendants which had accrued to them due to non‑compliance of the order of the Court by the plaintiffs. The learned trial Court has referred to the judgment of the Hon'ble Supreme Court in "Niaz Muhammad Khan v. Fazal Raqib" (PLD 1974 SC 134), wherein it was held:‑‑ "In these circumstances it is difficult to hold that by the unilateral process of attesting and accepting a deposit or security, after the expiry of the specified period, the Court could by implication extend time and take away a valuable right which had accrued to the vendee under the relevant statute."

5. The pre‑emption suit filed by the petitioner was being adjudicated upon in accordance with the provisions of the Punjab Pre‑emption Act, 1913 which was on the statute book at that time. The order dated 27‑5‑1976 was passed by the learned trial Court in accordance. with section 22 of the said Act which is reproduced below:‑ -- "Plaintiff may be called on to make deposit or to file security.‑‑‑(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 fix in 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 (r) 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. (6) The estimate of the probable value made for the ' purpose of subsection (1) shall not affect any decision subsequently come to as to what is the market value of the land or property."

6. Therefore, if the suggestion of the learned counsel for the petitioners is accepted and the case is remanded to the learned Additional District Judge for fresh adjudication of the case as Regular First Appeal it will serve no useful purpose and would prove an exercise in futility. In view of the fact that the order of the learned trial Court dated 25‑7‑1976 was not complied with in letter and spirit by the petitioners/plaintiffs and the security was nor furnished accordingly, the fate of the appeal can be .predicted with certainty in the light of the provision of subsection (1) of section 22 of the said Act. Therefore, respectfully following the principle laid down in the judgment of the Supreme Court in Abdul Qadir and others v. The Settlement Commissioner and others (PLD 1991 SC 1029) I am not inclined to remand the case to the learned Additional District Judge, Sargodha, for fresh decision of the case as Regular First Appeal. The following passage of the report is reproduced below:‑‑‑ "It may be remarked that right of opportunity of hearing is not merely a technical right. It has often been observed by the superior Courts that it is linked with tangible, factual and legal aspects of the case and it would depend upon the facts and circumstances thereof as to whether the observance of the technical rule of audi alteram partem by a lower forum and ritualistic performance in this behalf would serve the ends of justice or it would negate the ends of justice. If the forum before which such a question is raised is able to examine the merits as we have done in this case and/or as was done by the High Court in one case, there would be nothing wrong in deciding the matter finally and refraining from multiplicity of proceedings; which as an end product also causes injustice and misery in so far as the delay, expense and anxiety is concerned."

7. The contention of the learned counsel for the petitioner that after the plaint was returned by the Collector and it was represented before the learned Civil Court and issues were recast, the proceedings in the suit taken in the year 1976 by the learned civil Court did not continue. Therefore, the learned Civil Court ought to have passed a fresh order in accordance with section 22 of the Punjab Pre‑emption Act, 1913. The contention of the learned counsel loses force for the simple reason that even after the representation of the plaint, the petitioners/plaintiffs did not claim that fresh order be passed under section 22 of the said Act. The petitioners did not challenge the correctness or efficacy of the order dated 27‑5‑1976 at any stage before the trial Court.

8. Mr. Aamer Raza A. Khan, Advocate, learned counsel for the respondents has rightly submitted that the order of deposit/furnishing security dated 25‑7‑1976 remained intact and held the field throughout, therefore, for its non‑compliance the penal consequences would follow and as a matter of 'fact did follow. The learned counsel for the respondents relied upon Karim Bakhsh and others v. Rahim Bakhsh and others (1988 SCMR 1405) and Muhammad Ismail and others v. Member, Board of Revenue, Punjab, Lahore and others (1985 SCMR 112), in this behalf.

9. After the return of the plaint by the Collector the same was represented to the learned Civil Court at Sargodha for adjudication, therefore, there was no necessity of passing a fresh order for the deposit or furnishing security in terms of section 22 of the said Act. Both the parties to the suit by their conduct accepted this position as none of them tried to get the order dated 27‑5‑1976 varied/chanced nor claimed or applied for a fresh order in this behalf.

10. For all these reasons this writ petition is dismissed. Since complicated questions of fact and law are involved in this case, there will be no order as to costs. A.A./F‑198/L Writ petition dismissed.