2021 PLP 1338 (CLC)

RASAAL HASSAN SYED, J.

This revision petition stems from judgments and decrees dated 14.12.2012 and 05.12.2014 of the learned courts below whereby the suit of the petitioner for pre-emption was dismissed and appeal thereagainst was declined.

2. Precisely the facts are that the petitioner instituted a suit for possession to prempt the sale of land through mutation No.1238 dated 30.8.2012 in favour of the respondent. Case set up in the plaint was that the petitioner acquired knowledge of sale at 10.00 a.m. on 16.8.2012 and that he made requisite Talbs and also that he had a superior right to prempt the sale on the ground of being Shafi-e-Sharik, Shafi-e-Khalit and Shafi-e-Jar. On 26.9.2012 the petitioner was directed to deposit Zar-e-Soim within 30 days which order having not been complied with, the suit was dismissed due to non-deposit of Zar-e-Soim within 30 days vide judgment and decree dated 14.12.2012. Petitioner preferred an appeal wherein order dated 14.12.2012 was assailed and the decree was not challenged. Learned Addl. District Judge dismissed the appeal vide order dated 05.12.2014 observing that neither the "decree" was challenged nor certified copy of the impugned "decree" was attached with the memo. of Appeal and that a period of two years having expired, the deficiency was not removed within limitation period, the appeal, therefore, was dismissed.

3. Judgments and decrees of the learned courts below have been impugned on the grounds that the learned appellate court could grant extension in time for the deposit of Zar-e-Soim and could not non suit the petitioner for non-compliance of the order of the learned trial court simpliciter and that appeal was dismissed for hypertechnical reasons.

4. Section 96, C.P.C. provided an appeal against "decree", the "orders" as are appealable are specified in Order XLIII, Rule 1, C.P.C. while appeal arising out of orders in execution proceedings has been provided in section 104 of C.P.C. As per provision of law supra the appeal was only competent against a decree; filing of certified copy of the decree-sheet with the Memo. of Appeal in terms of Order XLI, Rule 1, C.P.C. was mandatory, non-compliance of such mandatory provisions, obviously entail consequences of dismissal of appeal. In "Cooperative Model Town Society through Secretary v. Mst. Asghari Safdar and others" (2005 SCMR 931), it was observed by the honourable Supreme Court to the effect that under Order XLI, Rule 1, C.P.C. certified copy of "decree" was required to be appended with the Memo. of Appeal, the provision being mandatory, appeal will not be deemed to be properly instituted if filed without certified copy of decree-sheet. It was not the case of petitioner before the learned appellate court that the decree-sheet was not prepared or that the certified copy of the decree-sheet was applied for but could not be supplied due to non-availability of decree-sheet. No explanation for non-filing of copy of decree-sheet was given at the time of hearing of the appeal. Even in the instant revision petition no explanation whatsoever has been made for non-filing of the copy of the decree-sheet along with Memo. of Appeal before the learned Addl. District Judge. To the contrary, the petitioner alleges in para 2 of the revision petition that the appeal was filed before the District Court against judgment and decree dated 14.12.2012. There is no explanation as to why the copy of the decree-sheet was not appended. Perusal of the documents annexed with the instant revision petition reveals that the petitioner has annexed a copy of the "Application Form" whereby he applied for certified copy of the judgment and decree of the first appellate court dated 05.12.2014 on which a report of the Copying Agency was that the decree-sheet was not available on the file of appeal. Obviously, this report does not relate to the "Suit File". It has only nexus with certified copy of the final judgment dated 05.12.2014 of the learned appellate court and decree dated 05.12.2014 in appeal and in response thereof, the report given was that the decree-sheet was not available in the "Appeal File". This, of course, could not be a ground to assume that the decree-sheet was not prepared by the learned trial court in the suit particularly when the judgment of the learned trial court dated 14.12.2012 clearly shows the preparation of decree-sheet as discernable from the operative part of the judgment which is as under: "... therefore, suit of the plaintiff is hereby dismissed due to non deposit of Zar-e-Soim within 30 days. No order as to cost. Decree sheet be drawn. File be consigned to the record room after its due completion. Announced:- Masood Ahmad, Dated:-14.12.2012 Civil Judge Class II, Chichawatni" In view of the circumstances hereinbefore taken care of, no exception can be taken to the order passed by learned Addl. District Judge.

5. Even otherwise, the petitioner has no case for interference. Reason being that the petitioner was directed by the learned Civil Judge vide order dated 26.9.2012 to deposit the amount of Zar-e-Soim within 30 days, which order was not complied with and due to non-deposit of Zar-e-Soim, the suit was dismissed. As per section 24 of The Punjab Pre-Emption Act, 1991 in every suit for pre-emption, the court is under a mandate to direct deposit of 1/3rd of sale price of the property in cash. Proviso to section 24 ibid. contemplates that the period for deposit shall not extend beyond 30 days of the filing of the suit. Section 24(2) ibid. provides that in case of failure to make a deposit under subsection (1) thereof, within the period fixed by the court, the suit shall be dismissed. In "Hafiz Muhammad Ramzan v. Muhammad Bakhsh" (PLD 2012 SC 764), it was observed by the honourable Supreme Court to the effect that as per section 24(2), if the plaintiff pre-emptor fails to make the deposit in terms of subsection (1), his suit is liable to be dismissed and that this part of the section was so obvious that no interpretation was called for, therefore, on the basis of any ambiguous and unequivocal wording of the noted section, there was no doubt that the provisions thereof are mandatory and if the pre-emptor has failed to comply with the order of deposit, the suit has to fail. Reference can also be made to the case of "Hasnain Nawaz Khan v. Ghulam Akbar and another" (PLD 2013 SC 489) wherein honourable Supreme Court observed to the effect that once the court had determined the probable value, the plaintiff pre-emptor is bound to deposit the amount strictly in terms of the order within the period prescribed, however, if he dissatisfy with the order and wants to avail remedy of assailing the same, for example in revisional jurisdiction, and in this process the prescribed period of 30 days has lapsed but the deposit was not made, the suit shall be dismissed as per section 24(2) of The Punjab Pre-emption Act, 1991; this is so because the pre-emptor shall always be ready and willing to deposit Zar-e-Soim and cannot be allowed any extension of time beyond period of 30 days. In the case of "Raja v. Tanveer Riaz and others" (PLD 2014 SC 466), the honourable Supreme Court ruled to the effect that the day on which the order directing the pre-emptor to deposit the amount of Zar-e-Soim has to be excluded and that in any case the period of 30 days as mandated by section 24 of The Punjab Pre-emption Act, 1991 should be acceded. In "Malik Tariq Mahmood and others v. Ghulam Ahmed and others" (PLD 2017 SC 674), the honourable Supreme Court so observed to the effect that the first proviso places a special embargo restriction on the power of the court from extending time for deposit of Zar-e-Soim beyond the period of 30 days to be reckoned from the date of filing of the suit; besides subsection (2) provides penal consequences for non-deposit of the Zar-e-Soim within the period of 30 days by dismissal of the suit of the pre-emptor which is settled law and has been reiterated in a number of Court pronouncements and that any extension for time to deposit Zar-e-Soim after the expiry of the stipulated period could not sustain.

6. In the instant case, the petitioner undeniably failed to comply with the order of the court to deposit Zar-e-Soim within the statutory period, the suit was, therefore, rightly dismissed; which order being strictly in accordance with law seeks for no interference either in appeal or in this revision.

7. For the reasons above, there is no merit in this revision petition which is, accordingly, dismissed. SA/E-3/L Petition dismissed.