2001 PLP R1001 (SCMR)

TANVIR AHMED KHAN, J.

This appeal by leave of the Court is directed against the judgment dated 17-1-1993 passed by the Lahore High Court in R.S.A. No. 17 of 1993, whereby the order dated 13-1-1992 passed by the trial Court was declared as illegal having been, passed beyond the statutory period and the dismissal of the respondents' suit for its non compliance was set' at naught. The case was remanded to the trial Court, for its decision on merits with the direction to the respondents to deposit one- third of the sale price of land in dispute on or before 31-1-1995, failing which their suit would stand dismissed.

2. The facts briefly stated for the disposal of this appeal are that the appellant, Ghulam Hassan, purchased land measuring 60 Kanals situated in Chak No.37/S.P., Tehsil and District Pakpattan Sharif, from one Muhammad Anwar etc. vide Mutation No. 1735 sanctioned on 31-7-1991 for a consideration of Rs.7,50,

000. The respondents/plaintiffs on 26-10-1991 filed a suit for possession through pre-emption claiming their superior right. It was also averred in the plaint that the sale price of Rs.7,50,000 was fictitious and its real price was Rs.3,00,000.

3. The pre-emption suit reined pending before the trial Court from the date of its institution i.e. 26-10-1991 to 13-1-1992 when on the latter date, the trial Judge for the first time directed the respondents/plaintiffs to deposit one-third of the sale price mentioned in the mutation by 15-1-1992 in accordance with section 24 of the Punjab Pre-emption Act, 1991 (hereinafter 'referred to as the Act). The respondents/plaintiffs could not comply with this order, as such, their suit was dismissed under section 24(2) of the Act.

4. The respondents/plaintiffs preferred an appeal on 15-2-1992 without any court-fee. However, on 6-10-1992 the Appellate Court called upon the respondents/plaintiffs to pay the court-fee to the tune of Rs.8,775 within 15 days of its order and observed that in default thereof the appeal would stand dismissed. The respondents/plaintiffs deposited the requisite amount in the treasury for purchase of court-fee stamps, which were delivered to them on 19-10-1992. However, on the said date the Presiding Officer was on leave and the case was adjourned by Reader of the Court for 2-11-1992. The court -fee stamps were filed in the. Appellate Court on 21-10-1992. The appeal was dismissed by the Appellate Court on 2-11-1992 on the ground that the court- fee stamps were not deposited within the time fixed by it. The respondents assailed the order of dismissal through Civil Revision No.631 of 1992, which was set aside and the appeal was remitted to the Appellate Court for its decision on merits.

5. The Appellate Court after remand dismissed the appeal vide order dated 5-9-1993 on the ground that one-third of the sale price was not deposited within 30 days from the institution of the suit holding that it was the responsibility of the respondents/plaintiffs to invite attention of the trial Court on the date of filing of the suit for issuing direction for deposit of one -third amount as required under section 24 of the Act. Having failed to do so, the lapse on the part of the respondents/plaintiffs contributed to the lapse on the part of the trial Court. Consequently; the Appellate Court dismissed the appeal on this short ground.

6. The respondents tiled R.S.A. No.17 of 1993 in, the Lahore High Court against the dismissal of their appeal, which has been accepted through the judgment impugned in this appeal with the direction contained in the first paragraph. Hence this appeal with leave of the Court.

7. We have gone through the entire documents available on record. The crucial point in this case is the interpretation of section 24 of the Act which casts a duty upon the trial Court to require the prospective pre-emptor in a case of pre-emption to deposit one-third of the sale price.

8. It would be advantageous to refer to section 24 of the Act, which is in the following terms:-- "

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."

9. The reading of this section demonstrates that the Legislature has cast a duty upon the trial Court to pass an order for the deposit of one-third of the sale price of the property within 30 days from the institution, of the suit. The word "require" has been employed in this section and the ordinary meaning of the same as given in the Black's Law Dictionary is as under:-- "Require. To direct, order, demand, instruct, command, claim, compel, request, need, exact. State ex rel. Frohmiller v. Hendrix., p, 59 Ariz. 184, 124 P.2d 768;

773. To be in need of. To ask for authoritatively or imperatively." This very word "require" has also been used in Order VIII, Rule 10 of the Code of Civil Procedure, wherein the failure of submission/filing of written statement so required by the Court may result in the pronouncement of judgment or the Court may make such order in relation to the suit as it thinks fit. Since this provision entails penal consequences, as such, greater care is exercised by the Courts while applying this provision. The interpretation of this word "require" used in Order VIII, Rule 10, C.P.C. came under discussion in the case of Safdar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4 others (PLJ 1987 SC 537 -- equivalent to 1987 SCMR 1365) wherein it was held as under:-- "Therefore, it should always be absolutely clear from the proceedings that the written statement on account of which penalty is sought to be imposed was 'required', by the Court. It was neither as of right (Rule 1) nor as a result of permission (Rule 9). The use of word 'required' is not without significance. It does not permit a routine order without application of mind to the 'requirement' and/or the need. Therefore, it is essential that whenever a written statement is to be made subject to the penal rule 10, there should be proof on record that the Court had 'required' it by application of mind to the need and that too in a speaking order. Without the same, many innocent parties would be trapped in. a technicality without fully realising the implications." Similarly, in the case of Muhammad Lal v. Mohko and 2' others (PLD 1979 SC (AJ&K) 15), the word "requires" used in Order XLI, Rule 27(1)(b), C. P. C. came under interpretation and the learned Judges observed as under: "Besides under Rule 27, clause (1)(b), it is only where the Appellate Court 'requires' it, that additional evidence can be admitted. The word 'requires' means requires to enable the Court to pronounce judgment or for any other substantial cause. But in either case it must be the Court that requires it."

10. In the case in hand it is clear from the proceedings that the suit was filed on 26-10-1991 and no order whatsoever was passed in compliance to section 24 of the Act by the trial Court till 13-1-1992, while the period provided for the same is 30 days only from the date oil institution of the suit: The trial Court on 13-1-1992 passed an order for deposit of one-third of the sale price by 15-1-1992. This shows that the mandatory duty cast upon the trial Court was not performed in consonance with the provisions of the Act. Courts are here to administer justice in accordance with the provisions of law. The duty cast upon the trial Court cannot be avoided by saying that either of the party had not brought the attention of the Court to this mandatory provision of section 24 of the Act. It was wrong to say in this case on the part of the First Appellate Court that the lapse on the part of the respondents/plaintiffs in not bringing to the attention of the Court the requirement of passing an order for the deposit of one-third of sale price had contributed to the lapse on' the part of the trial Court. Application of the provisions of law is the duty of the Courts and the same cannot be avoided on these grounds. In the case reported as Board of Intermediate and Secondary Education, Lahore through its Chairman and another v. Mst. Salma Afroze and 2 others (PLD 1992 SC 263) this Court repelled the contention that the counsel appearing in the case did not bring to the notice the law. laid down on the subject. It was held as under:-- "

18. The learned counsel who represented the respondents in the High Court by not bringing to the notice of the High Court the law laid down by this Court on the subject did not render good service to their clients. Besides, it 'has been laid down by this Court in Muhammad Sarwar v. The State PLD 1969 SC 278 that a Judge must know the adage that a Judge must wear all the laws of the country on the sleeves of his robe and failure of the counsel to properly advise him is not a complete excuse in the matter."

11. Having stated that the, Courts are enjoined to do justice in accordance with law, it would be advantageous to reproduce in verbatim the observations/determination of this Court in the case reported as Sherin and 4 others v. Fazal Muhammad and 4 others (1995 SCMR 584) which read as under:.-- "It is noteworthy that section 107, as already stated, is tilted as 'powers of the Appellate Court'. From jurisprudential point of view sometimes a distinction is drawn between 'power' and 'duty'. We feel, so far a judicial functionary is concerned, the distinction is etherial, when power is conferred on the Court or a quasi-judicial tribunal for the benefit of the litigant. In such a case, exercise of power should be treated as compulsive. In East Suffolk Rivers Catchment Board v. Kent and another (1941 AC 74 at p.90) Lord Atkin after referring to. some decisions of House of Lords, observed:--. 'I treat it, therefore, as established that a public authority whether doing an act which it is the duty to do, or doing an act which it is merely empowered to do, must in doing the act do it without negligence, or as it is put in some of the cases must not do it carelessly or improperly. Now quite apart from a duty owed to a particular individual which is-the question in this case I suggest that it would be difficult to lay down that a duty upon a public authority to act without negligence or not carelessly or improperly does not include a duty to act with reasonable diligence by which. I mean reasonable dispatch.' It is to be noticed that all public authorities including the judicial functionary while doing an act enjoined by law or merely empowered to do it must not do it improperly. An action may lie against a public authority for misfeasance or non-feasance but for the sake of safe administration of justice and good sense no action lies for the breach of duty when the duty to perform is judicial or quasi-judicial. There may be a variety of reasons for omission or failure in performing such duty or exercising power with reasonable dispatch such as delaying- tactics of the parties to the action multiplicity of pending cases in the courts or intricacies of questions of law and facts raised before it. As stated at page 75 in Broom s Legal Maxims: Cases however have occurred in which injury was caused by the act of legal tribunal as by the laches or mistake of the officer; actus curiae, the injured party was without redress'. Presumably the need to mitigate the rigor of the hardship inflicted on a party in the course of administration of justice, by an act of the Court, led to the mergence of the norm that 'the act of the Court shall prejudice no man.' We may refer here with advantage to the classic remarks of Lord Eldon in Pulteney v. Warren (1801) 6 Ves. 73, 92, quoted by Maclean, C.J., in Lakhan Chunder Sen v. Madhu Sen (ILR 35 Calcutta 209):-- 'If there be a principle, upon which Courts of justice ought to act without scruple it is this to relieve parties against that injustice occasioned by its own acts or oversights at the instance of the party, against whom the relief is sought. 'That proposition is broadly laid down in some of the cases'. This view was approved of by the House of Lords in The East India Company v. Campion (1837) 11 Bli (ICS.) 158.' In the same strain are the observations of Lord Cairns, L.C. in Rodger v. The Comptoir d'Escompte de Paris (1871) 3 PC 465, quoted with the approval by Lord Carson in Jai Berham v. Kedar Nath (AIR 1922 PC 269): 'One of the first and highest duties of all Courts is to take care that the act of the Court does not cause injury to any of the suitors and when the expression 'the act of the Court', is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of Appeal, but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter up to the highest Court ` which finally disposes of the case.' More recently a practical application of this rule, which perhaps is in somewhat close proximity of the case in hand is demonstrated in Hidayatullah v: Murad A. Khan (PLD 1972 SC 69), when this Court stepped into relieve the appellants before the Court, of the wrong, caused to them by the act of the trial Court. This was a case in which the pre-emptors were required by the trial Court to deposit 'Zare Puniam' in cash by 6th January, 1968. They, however, applied to the Court on 6th December, 1967 for grant of permission to furnish security in place of cash deposit but instead of disposing of their application, the Court adjourned it to 6-1-1968, on which date it rejected the application and also refused to enlarge time for cash deposit. Hamoodur Rehman, C.J. who spoke for the Court noticed that had the trial Court disposed of the application soon after it was filed, the difficulty faced by the pre-emptors would not have arisen and maintained: 'There was, as we have already pointed out, a very good and substantial reason for the extension of time, because, even assuming that no application was made by the appellants for such extension of time, the Court, in the interest of justice, was fully competent suo motu to extend the time when it had by its own act made it practically impossible for the appellants to comply with its original order by adjourning the application for furnishing security to the 6th of January, 1968'."

12. Reading of section 24(1) of the Act clearly demonstrates that the trial Court itself after the tiling of the suit has to pass an order for deposit of one-third of the sale price of the property in cash within such period as may be fixed by it. However, an embargo/rider has been placed upon its power that the said period shall not be more than 30 days of the filing. of the suit. This provision read with subsection (2) of section 24 of the Act is mandatory in nature as non-compliance of the order of deposit by the pre-emptor is visited with the dismissal of the suit.

13. It is an established principle of law that where the Legislature has I provided a penalty/consequences for the non-compliance, the said- provision would be mandatory in nature and where such consequences are not provided it would be termed as directory. Reference in this behalf is made to the case of Maulana Nur-ul-Haq v. Ibrahim Khalili (2000 SCMR 1305) where it was held as under:-- "There is another aspect of the matter to which it is necessary to refer to section 32 of the Act appears to be mandatory, in view of the expression 'shall' used therein, but in fact is directory for want of a penal clause. No doubt there exists no faultless acid test or a universal rule for determining whether a provision of law is mandatory or directory and such determination by and large depends upon the intention of Legislature and the language in which the provision is couched but it is by now firmly settled that where the consequence of failure to comply with the provision is not mentioned the provision is -directory and where the consequence is expressly mentioned the provision is mandatory. It was held in Niaz Muhammad Khan v. Mian Fazal Raqeeb (PLD 1974 SC 134) that as a general rule a statute is understood to be directory when it contains matters merely of direction but it is mandatory when those directions are followed by an express provision that in default of following them the facts shall be null and void. In Major Shujat Ali v. Mst. Surrya Begum (PLD 1978 SC (AJ&K) 118) it was held that in the absence of a penalty for failure to follow the prescribed procedure the provisions are to be taken to be directory and not mandatory. The provisions of section 32 of the Act being directory cannot in manner override or dilute the provisions of section 31 of the Act which are mandatory by all standards." Reference is also made to the case of Mafizullah v. Manai Ullah and others (PLD 1963 Dacca 318) wherein it was observed as under:-- "

9. When a statute is passed for the purpose of enabling something to be done, it may be either a mandatory enactment, or a directory one, the difference being that a mandatory enactment must be obeyed or fulfilled exactly, but is sufficient, if a directory enactment be obeyed or fulfilled substantially. If a mandatory enactment is not strictly complied with, the thing done shall be invalid. On the other hand, if an enactment is merely directory, it is immaterial, so far as relates to the validity of the thing done, whether the provisions of that enactment are strictly complied with or not. (See Craies on Statute Law, Fifth Edition, pages 240-241). There is no general rule as to when an enactment is to be considered mandatory and when merely directory and it is the duty of the Court to ascertain the real intention of the Legislature having regard to the whole scope and purposes of the enactment to be construed."

14. The maxim "Actus curiae neminem gravabit" (an act of the Court shall prejudice no man) as already stated is now fully engrained in our system of administration of justice.. This principle 'was considered by this Court in the case of Rashad Ehsan and others v. Bashir Ahmad and another (PLD 1989 SC 146) in the following words:-- " ....the maxim 'Actus curiae neminem gravabit' comes into play, with a view to obviate hardships and which may otherwise be the result of the errors of the Court itself. Thus, where a non compliance with the mandatory provisions of a law occurs by complying with the direction of the Court, which is not in conformity with the law, the party complying therewith is not to be penalised. Indeed, the law becomes flexible to absorb such abnormalities and treat the infractions as harmless. Where the directions issued while administering the law have been followed but it is found that the authority itself had acted in deviation of the law in some particulars, the party acting in accordance with such directions is not held to be blameworthy." In the case of The State v. Asif Adil and others (1997 SCMR 209) it has been held that it is a well-settled proposition of law that a party should not be made to suffer on account of an act/omission on the part of Court or other State functionaries. In this regard, reference may be made to the case of Muhammad Hanif and others v. Muhammad and others (PLD 1990 SC 859), the case of Fateh Khan v. Boze Mir (PLD 1991 SC 782), the case of Abdul Rashid v. Abdul Salam and others (1991 SCMR 2012). Reference is also made to the case of Muhammad Afsar v. Mst. Munawar Jan (PLD 1961 (W. P.) Lahore 199), the case of Central Exchange Bank Ltd. v. Ch. Dilawar Ali Khan and others (PLD 1965 (W.P.) Lahore 628), the case of Mian Ijaz Iqbal and others v. Faisalabad Chamber of Commerce and another (PLD 1983 Lahore 1), the case of Hafiz Muhammad Ahsan v. The State (1987 PCr. LJ 2434), the case of Ghulam Haider and others v. Mst. Raj Bharri and others (PLD 1988 SC 20), the case of Muhammad Ramzan and another v: Haji Karim Bakhsh and 5 others (1988 CLC 448), the case of Iqbal Ahmad v. Industrial Development Bank of Pakistan arid 3 others (1989 CLC 1365), the case of Abdul Rashid v. Abdul Salam and others (1991 SCMR 2012), the case of Naseer Ahmed v. District Judge, Multan and 4 others (PLD 1992 Lahore 92) and the case of Iftikhar Baig v. Muhammad Azam and others (1996 SCMR 762).

15. Another principle of law attracted in this case is that if the law requires a thing to be done in a particular manner it must be done in that manner and not otherwise. The trial Court after filing of the suit has to regulate its provision qua the deposit of one-third of the sale price in accordance with section 24 of the Act. This section as already stated in clear terms has made it the responsibility/duty of the trial Court to pass an order of deposit. In the instant case, as is apparent beyond doubt, the trial Court totally failed to comply with the mandatory provisions contained in section 24 of the. Act. Its order dated 13-1-1992 calling upon the respondents/plaintiffs to deposit one-third of the sale price by 15-1-1992 was harsh as there was hardly a day for its compliance keeping in view the amount to be deposited. This sort of approach by the trial Court in inflicting penalty of dismissal of the suits upon the innocent litigant can never be appreciated. The function of the Court is not to simply dispose of the matter but is required to do justice in accordance with the provisions of law. We feel sorry in noting that non-action on the part of trial Court in this case has caused not only financial loss to the parties but has also prolonged their agony spreading over a period of one decade in this uncalled for litigation consuming much of the time of the superior Courts.

16. Resultantly, for what has been stated above, the present appeal having no substance is hereby dismissed leaving the parties to bear their own costs. Q.M.H./M.A.K./G-60/S Appeal dismissed.