1983 PLP 1876 (CLC)

The petitioner, Taj Muhammad Khan, had instituted on 20th February, 1977 a suit for possession by pre‑emption of land situate on the area of village Banda Pir Khan in the Court of Senior Civil Judge, Abbottabad. On the same date, he was ordered by the Court to deposit Rs. 15,000 as pre‑emption money before 24th March, 1971 which amount was deposited by him on 20th March, 1971. The suit was contested by the defendants and they. submitted their written statement on 14th April, 1971. In the mean time, the suit land was transferred by the vendee in favour of Qaima and Ali Zaman and the learned Senior Civil Judge directed the plaintiff to file an amended plaint impleading the said persons as defendants vide order, dated 14th May, 1971. The amended plaint was filed on 21st May, 1971 and all the defendants filed fresh written statement on 23rd June, 1971. Upon pleadings of the parties, issues were framed by the Senior Civil Judge on 23rd July, 1971. The suit was in the meantime transferred to the Court of Civil Judge, Abbottabad and it was pending there when on 31st July, 1972 the plaintiff submitted an application for withdrawal of Rs. 5,000 out of the pre‑emption money deposited by him as he needed the money in connection with expenses of performance of Haj. This application was accepted by the learned Civil Judge, Abbottabad and the plaintiff was allowed to withdraw the said amount of Rs. 5,000 out of the pre‑emption money and in lieu thereof to furnish surety bonds. The plaintiff received a cheque of the said amount of 2nd September, 1972 and furnished a security in lieu of that amount on 4th November, 1972. On 18th November, 1972 the defendants moved an application that the plaintiff had withdrawn the pre emption money and so the suit could not proceed and it should be dismissed. This application was contested by the plaintiff and in the meantime he also re‑deposited the said amount of Rs. 5,000 on 9th April, 1973. The learned Civil Judge rejected the application of the defendants on 14th April, 1973 and vide his judgment, dated 20th February, 1976 granted a decree for possession of the suit land by pre‑emption on payment of Rs. 30,000 as sale price. Aggrieved by this judgment, the defendants preferred an appeal before the District Judge, Abbottabad which was heard by Qazi Muhammad Farooq, Additional District Judge, Abbottabad where the judgment of the trial Court was attacked on two grounds ; firstly, that the findings of the learned lower Court regarding the transfer of the suit land by Abdur Rehmar, in favour of Qaima and Ali Zaman appellants was erroneous : and secondly, by withdrawal of the pre‑emption amount by the plaintiff, the suit should have been dismissed. The learned Additional District Judge did not accept the first point of the appellants but he accepted the second point regarding the withdrawal of the pre‑emption money during the pendency of the suit and set aside the judgment of the trial Court and dismissed the suit of the plaintiff vide his judgment, dated 17th February, 1977 and while deciding this point, the learned Additional District Judge relied upon P L D 1970 Azad J & K 66, P L D 1967 S C 418 and P L D 1965 Lah.

394. The plaintiff then filed the present revision petition. 2, The learned counsel for the petitioner has challenged the judgment of the learned District Judge only on one ground, i.e. his finding and dis missal of suit on account of withdrawal of pre‑emption money during the pendency of the suit. He has urged that the purpose of the Pre‑emption Act in ordering to deposit of ostensible price of the property is to ward off vexatious litigation and to secure payment of costs. He also urged that the entire amount was not withdrawn, that the money withdrawn was needed for a genuine purpose and that he had re‑deposited the amount which be had withdrawn and as such the provisions of clause (a) of subsection (5) of section 23 of the N.‑W.F.P. Pre‑emption Act, 1950, did not apply to the case.

3. The learned counsel for the petitioner has contended that it was not the intention of law to penalize the pre‑emptor and under the law he could also furnish security in lieu of the ostensible price if so allowed by the Court. He has urged that by withdrawing a part of the pre‑emption money, the petitioner had not violated the provisions of law. In support of his contentions, the learned counsel for the petitioner relied upon the cases reported as P L D 1978 Lab. 453, P L D 1965 Pesh. 91, 1972 S C M R 442, P L D 1975 Lah. 524 and 1981 C L C

293. However, the perusal of these Judgments would show that the cases involved in the first two authorities pertained to withdrawal of pre‑emption money or extension of time for deposit of surety bonds in lieu of the deposit of the ostensible price before the framing of issues and in the latter three judgments, the pre‑emption money was withdrawn by the pre‑emptor during the pendencey of the appeal. In all these five judgments, the plaintiff was not considered to have been non‑suited. However, the learned counsel for the petitioner failed to produce any authority where the plaintiff was not non‑suited on account of withdrawal of pre‑emption money after the framing of issues. This would clearly mean that the provisions of clause (a) of subsection (5) of section 23 of the N.‑W.F.P. Pre‑emption Act, 1950, are mandatory and the pre‑emptors were very clear about them and they never dared to withdraw the pre‑emp tion amount after the framing of issues. The aforesaid provisions of, the Pre, emption Act are so clear and the consequences which are to flow from them are so very definite that no pre‑emptor has ever dared to violate them. If a pre‑emptor withdraws the pre‑emption money after the framing of issues, then the mandatory provisions of section 23 ipso facto become applicable and under clause (a) of subsection {5) thereof, his suit has to be dismissed. In this respect, reliance can be placed upon Niaz Muhammad Khan v. Mian Fazal Raqib (P L D 1974 S C 134) wherein it has been held that "as a general rule a statute it understood to be directory when it contains matter merely of direction, but not when those directions are followed up by an express provision that, in default of following them, the facts shall be null and void. To put it differently, if the Act is directory, its disobedience does not entail any in validity ; if the Act is mandatory disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision". In this respect, further support can be drawn from the case of Islam (though his legal heirs) and another v. Muhammad Aslam and 2 others (P L D 1980 Lah. 104) wherein it was held that the provisions of section 22 (5) (a, of the Punjab Pre‑emption Act (which are analogous to section (23) (5) (a) of the N.‑W.F.P. Pre‑emption Act) are mandatory.

4. The aforesaid, provisions of section 23 of the Pre‑emption Act make no exception with regard to any mitigating circumstances in which the with drawal of pre‑emption money may become justified. Howsoever, urgent and emergent may be the need of the pre‑emptor, but withdrawal of the pre‑emp tion amount or a part of the same after the issues have been framed bring into action the aforesaid provisions of the Pre‑emption Act and there is nor escape from the consequences which come within the mischief of clause (a) as aforesaid. The redeposit of the withdrawn amount would not cure the violation of the provisions of section 23 committed by withdrawing the pre emption amount after the framing of issues.

5. I, therefore, find no substance in this revision petition which is dismissed with no order as to costs. M. Z. M Revision dismissed.