2022 PLP 2106 (CLC)

MUHAMMAD NAEEM ANWAR, J.

Through instant civil petition filed under section 115 of the Code of Civil Procedure, 1908 (C.P.C), petitioner Rahamdal Khan has assailed the consolidated judgment and decree dated 22.02.2012 of the learned Additional District Judge/Izafi Zilla Qazi-VI, Swat whereby Appeal bearing No. 86/13 of 2011 of Respondent No.1 Ihsan Ullah (judgment debtor) against order dated 22.06.2010 of the learned Civil Judge/Illaqa Qazi, Khwaza Khela was allowed whereas his Appeal No.38/13 of 2011 against the judgment and decree dated 19.05.2010 to the extent of sale price of the pre-empted land fixed by learned trial Court and Appeal No.70/13 of 2011 of respondent No.1 challenging the validity of judgment and decree dated 19.05.2010 were dismissed on the ground of acceptance of appeal of respondent (vendee/judgment debtor) resultantly, the order of the learned trial Court dated 22.06.2010 was set aside and suit of petitioner for pre-emption was dismissed for non-compliance of the provisions of section 25 of the Khyber Pakhtunkhwa Pre-emption Act, 1987.

2. Epigrammatic facts of the case are that plaintiff Rahamdal Khan (hereinafter referred to as petitioner) filed a suit for possession by exercising his right of pre-emption against Respondents No. 1 (vendee) and the vendors [respondent No.2 and the predecessor of Respondents Nos. 3 to 5 namely Farid Khan] in respect of the property, fully detailed in Prayer of the plaint. As per averments of the plaint, respondent No.1 purchased the pre-empted land from the remaining defendants against sale consideration of Rs.4,24,710/- which was paid by vendee to the vendors. The plaintiff alleged to have got knowledge of the sale on Friday i.e. 7th of March, 2008 at 02:00 P.M from Sheray Khan (Sher Khan PW-6) in his Hujra situated at Tetabatt, Tehsil Khwaza Kehla in presence of Hayat Muhammad Khan, Shakir Ullah Khan (PW-6) and Muhammad Shah Khan (PW-7), hence, he there and then pronounced his intention to pre-empt the sale transaction; that on 08.03.2008, by obtaining Fard Jamabandi from Patwari in respect of the pre-empted land, he came to know that defendants have shown the sale as exchange through fraud and collusion vide so-called Mutation No. 697 dated 20.02.2008 against the actual sale Mutation No.894 dated 20.02.2008; that on 12.03.2008, he got scribed notice Talb-i-ishhad and sent the same to Respondent No.1 on 13.03.2008 (mentioned as 13.02.2008 in plaint) through a registered acknowledgement due but he refused to receive the notice. The petitioner asserted that, being contiguous owner of the pre-empted land and enjoying common easement rights, a decree for possession of the pre-empted land by dint of his superior right of pre-emption may be granted in his favour.

3. The suit was resisted by Respondent No.1 and defendants Nos.2 and 3 by raising legal and factual objections in their respective written statements. Respondent No.1 denied at all the sale transaction in respect of the pre-empted land rather stated in his written statement that the disputed property was transferred to him by the transferor through exchange. Similar objections were raised by defendants Nos.2 and 3 in their joint written statement by referring exchange Mutations Nos. 697 and 894 dated 20.08.2008.

4. The divergent pleadings of the parties were culminated into issues and equal opportunities were afforded to both the parties for leading their evidence in support of their respective claims. After recording pro and contra evidence, the learned trial Court decreed the suit of petitioner against Respondent No.1 vide judgment and decree dated 19.05.2010 but market value of the pre-empted land was fixed as Rs.20,50,984/- instead of Rs.4,24,710/- as claimed by petitioner in his plaint. It is noteworthy that on obtaining attested copy of the judgment of trial Court on 22.06.2010, petitioner submitted an application before the trial Court for deposit of remaining pre-emption amount which was accepted by learned trial Court on the same date and on the following date i.e., 23.06.2010, as observed by learned appellate Court, the petitioner deposited the enhanced sale consideration i.e., Rs.1,909,384/- through challan in the National Bank of Pakistan.

5. Being aggrieved of the judgment and decree of the trial Court, Respondent No.1 preferred Appeal No.86/13 of 2011 challenged order dated 22.06.2010, whereby pre-emptor was allowed for deposit of remaining pre-emption amount while through another Appeal No. 70/13 of 2011 he challenged the judgment and decree dated 19.05.2010 of the learned trial Court decreeing the suit in favour of the pre-emptor. Similarly, petitioner through his Appeal No. 38/13 of 2011 challenged the sale price of pre-empted land fixed by trial Court. After hearing the arguments, the learned Appellate Court through consolidated judgment and decree dated 22.02.2012 accepted Appeal No.86/13 of 2011 of Respondent No.1 by dismissing the suit of petitioner whereas Appeal No.70/13 of 2011 of Respondent No.1 and Appeal No. 38/13 of 2011 of petitioner were dismissed being infructuous, hence, instant revision petition.

6. Arguments heard and record perused.

7. It is indisputable that the transfer of property bearing Khasra No.274 measuring 03-kanal and 14-malra of the revenue estate of Tetabatt, Tehsil Khwazakhela, District Swat was pre-empted by the present petitioner. It is also not disputed that suit No.90/1 of 2008 was decreed by the learned trial Court on 19.05.2010. The decree in favour of the petitioner was assailed by the respondent No.1 through his appeal, which remained undecided before the learned Appellate Court on the analogy that the petitioner/pre-emptor could not deposit the remaining pre-emption amount within the period as fixed by the learned trial Court in compliance of the provisions of section 25 of the Khyber Pakhtunkhwa Pre-emption Act, 1987. It is also not disputed that the sale consideration as fixed by the learned trial Court through its findings on issue No.10 was assailed by the petitioner/pre-emptor but his appeal too remained undecided due to dismissal of his suit by the learned Appellate Court. The present controversy has its roots in the findings of the learned trial Court on issue No.10. The petitioner/ pre-emptor alleged the sale consideration of the disputed property as Rs.4,24,710/- whereas the vendee/ respondent has alleged that the property was alienated to him through exchange, which was for the better management. The learned trial Court framed issue No.10 i.e., "what is the market value of the suit property? The learned trial Court, while considering the evidence and the statement of C.W has fixed the market value of the suit property as Rs.20,50,984/-. The judgment was announced on 19.05.2010, whereby the petitioner was directed to deposit the remaining pre-emption amount within a period of thirty days.

8. More-so, it appears from the memorandum of Civil Appeal No.38/13 of 2010 titled "Rahamdal Khan v. Ihsanullah and others" that the petitioner applied for obtaining attested copies of the judgment and decree on 20.05.2010 and the copies were prepared and handed over to him on 22.06.2010. Page No.86 of the instant petition is the application submitted by the petitioner seeking permission to deposit the remaining pre-emption amount, which was filed on 22.06.2010. The Presiding Officer of the learned trial Court sought a report on the same and the Moharrir reported that on 19.05.2010 the suit was decreed in lieu of Rs.20,50,984/- with directions to petitioner/-pre-emptor to deposit the remaining pre-emption amount within a period of thirty days. On receipt of the report, the Presiding Officer of the learned trial Court allowed the application and accordingly the remaining pre-emption amount was deposited on 23.06.2010 through Challan No.76/9 in the National Bank of Pakistan. The order permitting the pre-emptor/petitioner for depositing the remaining pre-emption amount was assailed by the defendant through Civil Appeal No.86/13 of 2011, whereas the facturn of decreeing the suit was assailed by vendee/defendant namely Ihsanullah through Civil Appeal No.70/13 of 2011 and by the petitioner to the extent of market value of the property through Civil Appeal No.38/13 of 2011. Moreover, the learned trial Court though decreed the suit on 19.05.2010 directing the petitioner to deposit the remaining pre-emption amount within a period of thirty days but the order is silent for non-compliance in depositing the remaining pre-emption amount. Section 25(1) of the Khyber Pakhtunkhwa deals with the deposit of remaining pre-emption amount as determined by the trial Court in decreeing the suit which for convenience is reproduced as under: - 25. (1) Where a Court passes a decree in favour of a pre-emptor on payment of a price which is in excess of the amount already deposited by the pre-emptor, the Court shall require to pre-emptor to deposit the remaining amount within thirty days of the passing of the decree.

9. The above reproduced section does not provide any penal provision for non-deposit of the remaining amount within the time specified by the Court whereas section 24 of the ibid Act provides the penal provision for non-deposit of 1/3rd of the pre-emption amount. For comparison section 24 is reproduced as under: - 24. (1) In every suit for pre-emption the Court shall require the plaintiff to deposit in such Court one-third of the sale price of the property in cash within such period as the Court may fix. Provided that if no sale price is mentioned in the sale deed or in the mutation, the Court shall require the deposit of one-third of the probable value of the property. (2) Where the plaintiff fails to deposit one-third of the sale price or the probable value of the property within the period fixed by the Court, his suit shall be dismissed. (3) Where the plaintiff withdraws the sum deposited under subsection (1), his suit shall be dismissed.

10. This controversy, as to whether the provisions of sections 24 and 25 of the Khyber Pakhtunkhwa Pre-emption Act, 1987 are directory or mandatory, came up before this Court in the case of "Wali Khan v. Waheed Ghani Khan" (2013 MLD 360, Peshawar), wherein this Court, while going through from the relevant provisions of law along with the principle enunciated by the apex Court in the cases of Muhammad Nawaz (1995 SCMR 105), Nazir Ahmad (1999 SCMR 342), Muhammad Irshad (1991 SCMR 2149), Bhai Khan (1986 SCMR 849), Muhammad Yusuf (2007 SCMR 1485), Riaz Hussain (2005 SCMR 1664) and Shujat Ali (PLD 2006 SC 140), has held that: (i) The provisions of section 24 of the Act are mandatory and the time fixed for payment of the initial 1/3rd of the sale price ought not to be extended. (ii) The provisions of section 25 of the Act are directory' and the Courts may in appropriate cases extend the time period for payment of the pre-emption amount decided. (iii) The criteria for determining whether to allow the time period to the pre-emptor under section 25 of the Act, would depend upon whether the delay was caused due to 'bona fide' conduct of the pre-emptor or the 'act of the Court'. (iv) After a Court has decided a case, it cannot, unless it has assumed review jurisdiction or to correct any clerical or arithmetical mistake, extend the period of payment of prc-emption amount under section 25 of the Act. (v) A Court having decided a matter cannot assume the jurisdiction and extend the time period under section 148 of the C.P.C. in pre-emption cases, as provided under sections 24 and 25 of the Act, as the said statute has a stipulated time period mentioned therein." The principle enunciated by this Court that the provisions of section 25 of the ibid Act are directory and the Court may extend the time for payment of the remaining amount was, in fact, based upon the dicta laid down by the apex Court in Muhammad Yusuf's case (2007 SCMR 1485), wherein the apex Court has held that the delayed payment reflects the contumacious conduct of the pre-emptor, which affects his bona fide intention, wherein he could not be held entitled for discretionary relief. Similarly, in Muhammad Nawaz's case (1995 SCMR 105), it was held by the Hon'ble Supreme Court that: "However, neither a trial Court nor an appellate Court can extend time for deposit of pre-emption money once the matter stands disposed of and it is no-longer pending before it. In such an event, the direction contained in the original decree to the effect that in case of failure to deposit the pre-emption money the suit shall stand dismissed, becomes effective. However, the above rule seems to be subject to one exception, namely, that if an appellate Court varies the finding of the Court below on the quantum of the pre-emption money, in other words it either increases or reduces the same, in that event, it should fix fresh reasonable time for deposit of the pre-emption money and in the absence of any such fixation, the pre-emptor may deposit the same within reasonable time."

11. Accordingly, the Hon'ble Supreme Court in Muhammad Nawaz's case has provided the guideline that dismissal of the suit is subject to exception that in the event of increase or decrease of the pre-emption amount the Court shall fix the reasonable time for deposit of remaining pre-emption amount. Whereas in the case of Muhammad Yusuf the non-compliance was attributed to the contumacious act of the pre-emptor for which it was held that he was not entitled for discretionary relief. The cumulative effect of the above leads to the conclusion that the conduct of the pre-emptor and the verdict of the Court in case of increase or decrease of pre-emption amount is of vital importance for which conduct of pre-emptor and the order of the Court shall be adjudged in juxtaposition. In the matter in hand the pre-emptor was alleging the sale considering as Rs.4,24,710/- whereas the vendee was alleging it to be the transfer through exchange whereas the Court has fixed the market value of the property as Rs.20,50,984/- Without going into the controversy qua the findings on issue No.9, because this is still alive controversy, which shall be dealt with by the learned Appellate Court in the appeal, whereby the decree in question was challenged, however, the learned trial Court for the purpose of determination of the market value of the suit property has considered three years average price and as such held that the total price of the land in dispute is Rs.20,50,984/- This determination is on issue No.10 and the judgment was released by the learned trial Court on 22.06.2010 whereas it was announced on 19.05.2010. It was 22.06.2010 when for the first time, the petitioner/ pre-emptor came to know about the determination of the sale consideration then he has left with no other option but to file an application before the learned trial Court seeking permission for depositing the remaining pre-emption amount and the learned trial Court allowed him to deposit the same.

12. Likewise, Hon'ble Supreme Court in the case of Dost Muhammad v. Nazar Hussain Khan (1984 SCMR 325), has held that "there was no self-operative default clause in the decree and it stipulated that, "If the plaintiffs failed to pay or deposit in Court Rs.4,00,000 towards the price of the land by 6th of May, 1978 their suit would be dismissed". The decree thus did not envisage an automatic dismissal wherein normally the expression used is that in the event of default the suit "shall stand dismissed". In the similar situation in the case of Nazir Ahmad v. Ghulama (1987 SCMR 1704) it was held that "In absence of a self-operative default clause in the consent decree extended time, which was upheld by this Court and in doing so it relied on a previous judgment reported at Khurshid Akbar v. Mian Manzur Ahmad 1982 SCMR 824." Thus, while relying upon the principle enunciated by the apex Court the suit of the pre-emptor could only be dismissed for contumacious conduct of pre-emptor, which is not the case before this court.

13. This Court in the case of "Miraj-ud-Din v. Muhammad Shoaib and 2 others" (2012 MLD 1371) has held that non deposit of lard of the amount could not be attributed to the pre-emptor because no specific amount was mentioned in the Court order thus for the act of Court the pre-emptor could not be penalized. In the case of "Rashad Ehsan and others v. Bashir Ahmad and another" (PLD 1989 SC 146) it was held that: "the maxim ' Actus curiae neminem gravabit' comes into play, with a view to obviate hardships and which may otherwise be the result of the errors of the Court itself. Thus, where a, non-compliance with the mandatory provisions of a law occurs by complying with the direction of the Court, which is not in conformity with the law, the party complying therewith is not to be penalised. Indeed, the law becomes flexible to absorb such abnormalities and treat the infractions as harmless. Where the directions issued while administering the law have been followed but it is found that the authority itself had acted in deviation of the law in some particulars, the party action, in accordance with such' directions is not held to be blameworthy" In accordance with the provisions section 107, C.P.C. the appeal is continuation of the original suit unless finally decided. Filing of appeals by both the parties before the learned Appellate Court is of worth consideration and that too when the appeals are still pending adjudication. One of the arguments of learned counsel for the respondent was that the learned trial Court has become functus officio after the announcement of the judgment. This too can be considered only when there was a self-operative default clause that after expiry of stipulated period the suit of the pre-emptor shall be deemed to have been dismissed. When no such clause was mentioned by the learned trial Court and the amount so determined came to know to the pre-emptor after obtaining the attested copy of the judgment then the learned trial Court could not be termed to be a functus officio rather the pre-emptor was much vigilant as he applied for depositing the remaining pre-emption amount and the same was deposited without any delay as laid down by this Court at serial Nos. (ii and iii) of the operative part of the judgment is the case of Wali Khan (supra) as reproduced in paras No.10 of this judgment.

14. Before parting with the judgment, this court deems it necessary that the trial Court at the time of announcement of judgment in the event of decreeing the suit in favour of pre-emptor must pass a short order, if the details are not written so far, manifesting the pre-emption amount and directing him to deposit the remaining amount in terms of section 25 of the Act of 1987 with consequences for non-compliance of the Court order in order to avoid further complications for the parties. Thus, the learned Registrar of this is directed to send the copy of this judgment throughout the province to the learned District Judges for its circulation amongst the learned Civil Judges.

15. These are the reasons for my short order of the even date, which read as under: For the detailed reasons to be recorded later on, this civil revision is allowed, the judgment and decree of the learned Appellate Court dated 22.02.2012 is hereby set aside and order of the learned trial Court dated 22.06.2010 is restored.

2. Apart from the detailed reasons for acceptance of the instant petition, the intriguing aspect of the instant petition was that the learned Appellate Court through single judgment dated 22.02.2012 in Civil Appeal No.86/13 of 2011 titled "Ihsan Ullah v. Rahamdil Khan" has also decided the fate of two other Civil Appeals No.70/13 of 2011 titled "Ihsan Ullah v. Rahmdil Khan and others", and No.38/13 of 2011 titled "Rahamdil Khan v. Ihsan Ullah whereby on acceptance of Civil Appeal No.86/13 of 2011, the judgment and decree of the learned trial Court decreeing the suit in favour of the present petitioner (the then respondent of Civil Appeal No.86/13 of 2011) was set aside and said decision of the learned Appellate Court also resulted into dismissal of the rest of the two appeals bearing No.70/13 & 38/13 of 2011, regarding which, no findings were rendered by the learned Appellate Court in its judgment dated 22.02.2012. The obvious reason for not discussing the respective contentions of the parties, facts of the case and findings thereon, was the acceptance of Appeal No.86/13 of 2011, when the pre-emptor has failed in depositing the remaining pre-emption amount within a period of thirty (30) days as directed by the learned trial Court.

3. Moreover, acceptance of the instant petition shall also result into: i. setting aside of the order dated 22.02.2012 of the learned Additional District Judge/Izafi Zila Qazi-VI, Swat; and ii. ipso facto resuscitation of Civil Appeals Nos.38/13 and 70/13, both of 2011, decided on 22.02.2012. The learned Appellate Court shall decide both the referred to above appeals, on merits, after hearing the parties. The parties are directed to appear before the learned Additional District Judge/Izafi Zila Qazi-VI, Swat on 30.05.2022." MH/166/P Order accordingly.