P L D 1965 (W (PLP)

Date of hearing : 22nd January 1965. The facts leading up to this civil revision briefly are that on the 25th of August 1962 Muhammad Yunus Khan (respondent No. 2 in this petition) sold 162 kanals and 18 marlas of agricultural land situated in village Kaudian in favour of Murad Ali Khan, the present petitioner, for an ostensible consideration of one lac of rupees. On the 2nd of September 1963, Abdullah Khan (respondent No. 1 in this petition) filed a suit for pre‑emption of the sale. On the 2nd of September 1963, the Civil Judge, First Class, Charsadda, ordered the plaintiff to deposit the above sum in cash. On the 23rd of October, the plaintiff applied to the Civil Judge, Second Class, to whom the suit had meanwhile been transferred, to be allowed to furnish security instead of cash, and the application was granted by order of the same date. Murad Ali Khan petitioner appeared in Court for the first time on the 29th of October and on the same date filed the present petition against the order of the Civil Judge Second Class referred to above.

2. In the admitting order dated the 2nd of December 1963 passed by this Court the first contention of the petitioner is stated to be that the Civil Judge Second Class, who passed the impugned order, had no jurisdiction to try the case. It is, however, now conceded that this objection is without force. The grounds pressed are: (1) That as the predecessor‑in‑office of the learned Civil Judge Second Class had exercised the option of demanding cash instead of security, the Civil Judge Second Class acted illegally or with material irregularity in varying the order. (2) That even the learned Civil Judge First Class who passed the original order dated the 2nd of September 1963, having once exercised his discretion, could not have subsequently varied the order. (3) That the impugned order "offends against the very object of section 23 of N.‑W. F. P. Pre‑emption Act which is for the protection of the vendee against vexatious and speculative suits and to provide a guarantee of the bona fides of the pre‑emptor".

3. With respect to the first of these objections, it was, argued that the impugned order amounted to reviewing the first order, contrary to the provisions of Order XLVII, rule 2,~ C. P. C. This position was not taken up in the grounds 6i revision, and is untenable for the simple reason that an order.' passed under rule 4 of Order XLVII, C. P. C. is appealable under! Order XLIII, rule 1 (w), and no revision would, therefore, be, competent. Moreover, in the present case it cannot be said that the impugned order has affected the legal rights of either of the, parties. The doctrine of review has thus no application, and, :ii my opinion, the learned Civil Judge Second Class had the same powers in the matter as his predecessor.

4. The next question to be considered is, therefore, whether the Civil Judge First Class, if he had continued to deal with the suit, could have varied the original order requiring the deposit of cash. In support of his contention that no such power vests in the Court, learned counsel for the petitioner cited Zaman Mehdi Khan v. Hayat Khan (A I R 1938 Lah.452). In that case the plaintiff had been ordered to furnish security under section 22 (1) of the Punjab Pre‑emption Act, but the surety withdrew and the plaintiff was asked to deposit cash within a certain time. On his failure to do so, the suit was dismissed. On appeal the learned District Judge held that as the security bond bad become void, the Court should have asked for fresh security and not cash under section 22 (5) (b) of the Act. He, therefore, remanded the cafe. The order was upheld in appeal, the learned Single Judge (Bhide, J.) observing "In my opinion the interpretation placed on section 22 (5) (b) _ by the learned District Judge is correct. Section 22 (1) was no longer applicable as issues had been framed and the option as regards choice between cash and security had already been exercised." It will be seen that there are at least two points of distinction between the above case and the present. The first is that section 23 (5) (b) of the North‑West Frontier Province Pre emption Act, 1950, like section 22 (5) (b) of the Punjab Pre emption Act of 1913; specifically lays down that if, for any cause, the security furnished becomes void or insufficient, the Court shall order the plaintiff to furnish security or to increase the security, as the case may be, within a time to be fixed, and it is only if the plaintiff fails to comply with such order that the suit or appeal can be dismissed: The order of the trial Court in that case directing the plaintiff to deposit cash therefore violated the above provision. In the present case, on the other hand, an original order for the deposit of cash was replaced by one requiring security. . The other point of distinction is that in Zaman Mehdi Khan's case the order for the deposit of cash was passed after issues had been framed, whereas, the power of the Court to require the deposit of cash or the furnishing of security is limited to the stage before the settlement of issues. I am respectfully of the view that the words underlined in the above passage from the judgment of the learned Judge are to be read in that context, and are not to be taken to mean that even if issues had not been settled the choice once exercised could not be varied.

5. I am fortified in the above conclusion by the observations of the same learned Judge in an earlier case, Raja Khan v. Muhammad Khan (I L R 11 Lah.531). In that case the plaintiffs in a pre‑emption suit, instead of depositing one‑fifth of the purchase money as ordered by the Court, filed a security bond, whereupon the Court passed the following order :‑ The plaint was subsequently rejected by another Subordinate Judge on the ground that the plaintiffs had failed to comply with the Court's order requiring them to deposit one fifth of the purchase money. The District Judge on appeal disagreed with the trial Court and held that the Subordinate Judge, having accepted the security bond, had by implication varied his previous order as regards cash payment. The learned Judges of the Lahore High Court held that the District Judge had erred in law in coming to such a conclusion. In the course of his judgment Bhide, J. remarked "The plaintiffs had filed an affidavit that they had made an oral request to the Subordinate Judge that the security bond should be taken instead of cash deposit, but the learned District Judge has apparently not accepted this affidavit as reliable. If any such oral request had been made and the Subordinate Judge had intended to vary his order he would in all probability have expressly said so." It is to be noted that it was neither held by the learned Judges, nor argued before them, that the trial Court had no power to vary the original order, the sole question for decision being whether it had in fact done so.

6. I am, therefore, of the view that both the Civil Judges in this case had power to vary the original order.

7. The last argument enumerated in parargaph (2) above is clearly based on Sanawal Das v. Jaigo Mal (A I R 1924 Lah. 68). With the utmost respect, I entirely agree with the observation that the object of an order under section 22 (1) of the Punjab Pre‑emption Act is to guarantee vendees against frivolous proceedings on the part of possible pre‑emptors, but provided reliable security is furnished the said object is as fully attained as by the deposit of cash. Learned counsel for the petitioner argued that the plaintiff is more likely to employ delaying tactics if security is accepted than if he were required to deposit cash, but even if this contention be well‑founded, which is questionable, it is for the Court to see that its process is not abused.

8. For the above reasons I hold that there is no force in this petition, which is accordingly dismissed. S. A. H./S. Q. Petition dismissed.