P L D 1993 Peshawar 259 (PLP)

ABDUL KARIM KHAN KUNDI, CJ.‑‑‑In the mutation the sale price was recorded as Rs.2,85,590 and accordingly in the pre‑emption suit the Court required the pre‑emptor to deposit in the Court one‑third of the sale price in cash and to furnish bank guarantee to the satisfaction of the Court for the remaining two‑third amount. Later on the pre‑emptor made an application that since the market value of the suit land in Suit No.163/1 had been determined in the sum of Rs.62,026.79, he may also be permitted to deposit the said amount in the Court. His application was allowed and he was directed to deposit in cash one‑third of the said amount and to furnish bank guarantee for the remaining two‑third amount. This order was impugned in a revision petition before the District Judge, who on acceptance of revision set aside the aforesaid order and restored the original order of the trial Court requiring the pre‑emptor to deposit one‑third of the sale price in the sum of Rsl,85,590,and to furnish bank guarantee for the remaining two‑third amount. Pre‑emptor invoked the Constitutional jurisdiction of this Court for declaration that the orders of the District Judge were without lawful authority and should, therefore, be struck down. Writ petition, was admitted to hearing in order to resolve the moot point of public importance. On an application this Court had also suspended the operation of the impugned order of the District Judge.

2. Today after hearing the learned counsel for the parties we have found that section 24 in subsection (1) deals with the sale price of the property, which is to be deposited to the tune of one‑third in cash and to furnish bank guarantee for the remaining two‑third of the sale price. The second proviso further states that if no sale price is mentioned in the deed or in the mutation only then the Court shall require the deposit of one‑third of the probable value of the property and a bank guarantee for two‑third of the remaining probable value. Subsection (2) of section 24 again provides that where the pre‑emptor fails to deposit one‑third of the sale price or probable value of the property and the required bank guarantee his suit shall be dismissed.

3. Learned counsel for the pre‑emptor/petitioner contended that there was a mischief in the said provision which was removed by an amendment. However, section 24 after amendment has been found as before with the only modification that instead of full sale price there has been made a provision for the deposit of one‑third of the sale price and in case the sale price is not mentioned in the sale decd or in the mutation then the Court shall require the pre‑emptor to deposit one‑third of the probable value. We do not think that by the amendment any mischief whatsoever has been removed. We were next referred to Article 25 of the Constitution but the said Article provides that all citizens are equal before law and also entitled to equal protection of law. We have not noticed any discrimination on this score. In fact, the order of deposit is an interim order tentative in nature and character and it is provided in subsection (5) that ' it shall not affect the final determination of the price payable by the pre‑emptor. The legislature has in its wisdom avoided the determination of the actual sale price or market price at the initial stage. On the other hand, the statute has laid down a clear law that if a sale price is mentioned in the sale decd or mutation the Court shall require a pre‑emptor to deposit one‑third of the sale price in cash and in case the sale price is not mentioned in the sale deed or mutation only then the Court shall require to deposit one‑third of the probable value which is again to be determined I tentatively. Since in the case the sale price was mentioned in the mutation the Court was placed under obligation to order the deposit of one third of the sale price in cash and to require the pre‑emptor to furnish bank guarantee to the extent of two‑third of the sale price. That being the legal position, we understand that there cannot be taken any exception to the impugned order passed by the learned District Judge in restoring the original orders of the trial Court requiring pre‑emptor to deposit one‑third of sale price mentioned in the mutation in cash in the Court and to furnish bank guarantee for the remaining two‑third of the sale price. In the circumstances, the trial Court need not and should not have subsequently proceeded to determine the probable value and to order the deposit of one‑third thereof as pre‑emption money. Resultantly, this writ petition fails and is hereby dismissed. Since this Court had suspended the operation of the impugned order, we shall, therefore, direct the pre, emptor/petitioner to deposit one‑third of the sale price mondone4 in the mutation in cash and also to furnish a Bank guarantee to the extent of two- third of the sale price to the satisfaction of the trial Court within a period of fifteen days from today, failing which his suit shall stand, dismissed. Parties are left to bear their own costs. A.A/1495/P Petition dismissed.