1999 PLP 336 (YLR)

This judgment will dispose of Writ Petitions Nos.23047 of 1997 and 23048 of 1997, being between the same parties and directed against the same impugned order.

2. Muhammad Latif respondent No.2 through two separate sale‑deeds Nos.2281 and 2288 on 2‑7‑1996 respectively purchased 4 Marlas of land, the detail of which is furnished in para.2 of the petition. The petitioner filed two separate suits for possession of the land through pre‑emption on 19‑7‑1996. The case was put up before the Court for the first time on 21‑7‑1996 when the Court directed that the suits be registered and summons be issued to the defendant against the. process fee through registered post for 16‑9‑1996. Admittedly, no order of deposit of 1/3rd of the sale price (Zar‑e -Soem) as mentioned in the sale‑deed was passed and this omission was separately in violation of section 24 of the Punjab Pre- Emption Act, 1991, hereinafter referred to as Act. The order sheet shows that when the suits were taken up on 16‑9‑1996 Mr. Waqar Ahmad, Advocate filed his Wakalat Nama. The Court noted that the deficiency in court- fee in the sum of Rs.280 has been provided. The case was adjourned to 14‑10‑1996 for written statement. Another order was passed on the same day which being crucial is hereby reproduced in vernacular:

2. On 26‑9‑1996 the case was again adjourned to 14‑10‑1996 for filing of written statement in the presence of counsel for the parties. On 14‑10‑1996, the Presiding Officer is recorded to have been transferred without successor and apparently duty Judge adjourned the case to 6‑11‑1996, again for written statement. On 6‑11‑1996 it is recorded that under the orders of the District Judge, dated 26‑10‑1996, the case has been transferred to Mr. Shaukat Ali Sajid, Civil Judge, Sargodha, and the case should be put up before that Court on 10‑11‑1996. It is also recorded that the written statement has been filed. On 10‑11‑1996 the Court recorded the presence of the counsel for the parties and it is stated that the suit has been received under the orders of the District Judge. The same should be registered and be put up on 14‑11‑1996 for further proceedings. On 14‑11‑1996 plaintiff filed an application for deposit of Zar‑e‑Soem. A copy is given to the opposite party, for its reply on 25‑11‑1996. On 25‑11‑1996 the reply was filed and the case was adjourned to 11‑1‑1997 for arguments on the application. On 11‑1‑1997, it is recorded that the case has once again been transferred under the orders of the District Judge and the parties have been directed to appear before the transferee Court on 14‑1‑1997. On this date the transferee Court directs for registration of the case and proceeds to hear the arguments of the learned counsel on the application. The case was adjourned to 15‑1‑1997 for providing judicial precedents and orders and thereafter, adjourned to 18‑1‑1997 and again to 22‑1‑1997.

3. On 22‑1‑1997 the Court allowed the application of the plaintiff for permission to deposit 1/3rd of the sale price and directs the plaintiff to do so, by 23‑1‑1997. The case was adjourned to 23‑1‑1997 for production of the deposit receipt. On 23‑1‑1997 the deposit receipt was filed in Court _and the case was adjourned to 5‑2‑1997 for framing of issues.

4. Aggrieved against the order, dated 22‑1‑1997, the defendant‑respondent No.2 filed two revision petitions in the District Court, one in each suit. It was urged that the Trial Court was devoid of jurisdiction to permit deposit of Zar‑e‑Soem beyond 30 days and the impugned order, therefore, was violative of the section 24 of the Act. Both the revisions were heard together and were allowed by the Additional District Judge, Sargodha on 20‑9‑1997. The learned Court after allowing the revisions dismissed the suits. It is the plaintiff who felt aggrieved and has filed these two Constitutional petitions to question the legality of the orders of the Additional District Judge, respondent No. 1.

5. The sole and prime argument of the learned counsel for the petitioner is that the Court failed to direct deposit of Zar‑e‑Soem as required under section 24 of the Act and that this omission of the Court cannot vitiate the right of the petitioner nor he can be penalized with dismissal of his suit for the act of Court. He has relied on the cases of Jamshed Ali and 2 others v. Ghulam Hussan (1995 CLC 957), Sherin and 4 others v. Fazal Muhammad and 4 others (1995 SCMR 581) and Taj Din v. Nur Hussain and another (1979 CLC 530).

6. On the other hand the learned counsel for respondent No.2 has maintained that under no circumstances the Trial Court possesses the power to enlarge the time for deposit beyond 30 days of the institution of the suit and the petitioner 'was equally negligent in complying with the order of deposit, dated 16‑9‑1996 as reproduced above. It is contended that failure of the Court to intimate the direction for deposit, dated 16‑9‑1996 is not that material in as much as the petitioner's learned counsel was present in Court on 26‑9‑1996 and atleast on the said date he ought to be presumed to have learnt the direction of the Court for deposit. He has explained that the parties/ learned counsel were present on subsequent, dates namely 14‑10‑1996, 6‑11‑1996 and 10‑11‑1996 and it is inconceivable that the petitioner/his learned counsel remained ignorant of the order of the Court, dated 16‑9‑1996. In his submission filing of application on 14‑11‑1996 for permission to deposit Zar‑e‑Soem was highly belated in any case. For this purpose he has relied on the cases of Muhammad Ismail v. Jamil‑ur -Rehman and 6 others (1995 MLD 1011) and Awal Noor v. District Judge Karak and other (1992 SCMR 746).

7. For convenience of reference sec tion 24 of the Act is reproduced:‑‑‑ "(24) Plaintiff to deposit sale price of the property.‑‑‑(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 such period shall not extend beyond thirty days of the filing of the suit: Provided further that if no sale price is mentioned in the sale‑deed or in the mutation, or the price so mentioned appears to be inflated, the Court shall require deposit of one -third of the probable value of the property. (2) Where the plaintiff fails to make a deposit under subsection (1) within the period fixed by the Court, or withdraws the sum so deposited by him, his suit shall be dismissed. (3) Every sum deposited under subsection (1) shall be available for the discharge of costs. (4) The probable value fixed under subsection (1) shall not affect the final determination of the price payable by the pre‑emptor. "

8. The perusal of the section as well as the cited cases reveals that the provision for deposit is mandatory and Trial Court has no power to extend the time of deposit beyond 30 days of the filing of the suit. In other words, the deposit has to be within 30 days. As there is no dispute regarding the amount to be deposited, therefore, in these cases, the other provisions of section are not relevant.

9. It is clear that on 21‑7‑1.996 when the suits were put up before the Court for the first time, the Court did not pass the order of deposit. It seems to be inadvertent as no other reason has been suggested as to why the learned Trial Court failed to make the order of the deposit. Normally such an order of deposit is made on the first day when the case is taken up by the Trial Court for preliminary consideration. In the first proviso the maximum limit for deposit is 30 days from the filing of the suit and this would be 18‑8‑1996. As noted the actual order of deposit was made on 16‑9‑1996 by a subsequent order when the case had already been adjourned to 26‑9‑1996 and that too after the parties had left the Court. It is not disputed that in terms of ‑ the order of the Court, dated 16‑9‑1996, no notice was issued to the plaintiff/his learned counsel conveying the direction of the Court .for deposit of Zar e‑Soem by 26‑9‑1996. The actual deposit was made on 23‑1‑1997 in terms of order of the Court, dated 22‑1‑1997 by which order the Court allowed the application of the plaintiff.

10. In the impugned orders the revisional Court has proceeded on the assumption that the petitioner‑plaintiff was negligent in complying with the direction to deposit Zar e‑Soem by 26‑9‑1996. It found that the direction for ‑ deposit by 26‑9‑1996 as contained in the earlier order, dated 16‑9‑1996 was not communicated to the plaintiff/his learned counsel and on such finding it could not have penalised the plaintiff‑petitioner. Assuming that from appearance in Court on 26‑9‑1996, 14‑10‑1996 and 10‑11‑1996, the plaintiff/ learned counsel be posted with the knowledge of the order for deposit of Zar‑e‑Soem by 26‑9‑1996, plaintiff/learned counsel could not have done so because 26‑9‑1996 had by then clearly passed. The reasoning of the revisional Court, therefore, is defective. It was not the exclusive mistake/failure of the plaintiff or his learned counsel, but admittedly the mistake/failure of the Court was also involved. There is no answer as to why on 26‑9‑1998 and for that matter on subsequent dates the Court failed to record that the attention of the plaintiff's counsel has been drawn towards the order, dated 16‑9‑1996 and he was required to comply with the same. I am very clear that if, the plaintiff has to be punished with dismissal of suit it ought to be established beyond shadow of doubt that order of the Court, dated 16‑9‑1996 was communicated to the plaintiff/learned counsel well within time so as to enable the plaintiff to make the deposit by 26‑9‑1996. But parties admit that the order was not conveyed. The plaintiff, therefore, could not be punished for failing to make the deposit by 26‑6‑1996, as has been done by the revisional Court‑respondent No. 1.

11. Reliance by the learned counsel for the petitioner on Jamshaid Ali etc. v. Ghulam Hassan (1995 CLC 957) is appropriate. In the precedent case, in somewhat similar circumstances I took the same view which I am taking in the present case. The said view is hereby reiterated. The reliance of learned counsel for the contesting respondent on Awal Noor v. District Judge, Karak etc. (1992 SCMR 746) and Muhammad Ismail v. Jamil‑ur‑Rehman etc. (1995 MLD 1011) does not help in solving the problem. The above Supreme Court Judgment, with reference to section 24 of the North‑West Frontier Province Pre‑emption Act, 1987, lays down that order of Court to deposit beyond 30 days was unlawful. In this case, no question of enlargement or extension of time in deposit is arising. By passing the order, dated 22‑1‑1997, the Trial Court merely attempted to relieve the parties as well as the court of a situation which was arising through act/omission of the Court itself. Such omission occurred due to failure of the Court to comply with the‑mandate of section 24(1) of the Act and for the second time when the Ahlmad of the Court failed to issue notice in terms of the order, dated 16‑9‑1996. The order will have to be justified on the premises that acts of Court will not destroy the right of a litigant. It may be reiterated that provision under section 24(2) of the Act is penal and in order to apply the same and punish the plaintiff with dismissal of his suit, it has to be held that the plaintiff failed to abide by the order passed by the Court under subsection (1) of the Act. Due to sheer inadvertence of Court/its Ahlmad, proper order under section 24(1) was not passed/conveyed hence there was no non‑compliance by plaintiff.

12. For what has been stated, these two petitions are allowed and the impugned orders by respondent No.1 are hereby declared to have been passed without lawful authority and consequently of no legal effect. Resultantly, the suits of the plaintiffs will be deemed to be pending and will now be proceeded with and decided in accordance with law. No order as to costs. Q.M.H./M.A.K./R‑92/L Petition allowed.