2007 SCMR 1091 (PLP)

CH. IJAZ AHMED, J.

The brief facts out of which the present appeal arises are that original owners namely Ahmed Khan, Abdul Ghaffar and Mst. Amir Begum sold their land measuring 83 Kanals, 14 Marlas to the appellants for a consideration of Rs.25.00,000 vide Mutation No.910 which was attested on 24-12-2001. Respondents Nos.1 and 2/plaintiffs filed suit for pre-emption against the appellants in the Court of Civil Judge, Talagang on 14-3-2002. Respondents Nos.1 and 2 also filed an application under section 24(1) of the Punjab Pre-emption Act in the said Court stating that since the stated sale price in sale mutation was inflated and market value of the land in suit in terms of annual sale average came to Rs.3,85,471.88, an order for deposit of Zar-e-Soem in accordance with it may be made. The trial Court directed the respondents Nos.1 and 2/plaintiffs to deposit Zar-e-Soem in the sum of Rs.1,74,375 vide order, dated 15-3-2002. Appellants being aggrieved filed revision petition under section 115, C.P.C. in the Court of Additional District Judge, Talagang which was accepted vide judgment and decree, dated 6-5-2003 wherein respondents/plaintiffs were directed to deposit Zar-e-Soem of Rs.25,00,000 i.e. Rs.8,33,

334. Respondents being aggrieved filed Constitutional Petition No.1236 of 2003 in the Lahore High Court which was accepted vide impugned judgment, dated 9-9-2003. Appellants being aggrieved filed C.P. No.2552 of 2003 before this Court which was fixed on 5-10-2005 and leave was granted in the following term:-- "It is inter alia contended that probable value of the land in question has been determined in vacuum and the relevant five mutations went unnoticed by the learned High Court which resulted in serious miscarriage of justice. It is also pointed out that the writ jurisdiction as conferred upon learned High Court under Article 199 of the Constitution of Islamic Republic of Pakistan could not have been invoked in this case. In this regard reference has been made to Noor Muhammad v. Sarwar Khan PLD 1985 SC 131, Muhammad Zahoor v. Lal Muhammad 1988 SCMR 322 and Bishambhar v. IIIrd Additional District Judge, Azamgarh AIR 1992 All.

178. It is further contended that proper opportunity of hearing was not afforded and the probable value has been fixed without proper notice and inquiry which should have been done before determining the probable value."

2. Learned counsel of the appellants submits that trial Court had accepted the application of the respondents Nos.1 and 2/plaintiffs without judicial application of mind as evident from order, dated 15-3-2002. He further maintains that learned High Court erred in law to interfere with the order passed by the revisional Court merely relying the law laid down by this Court in Haji Ghulam Nabi v. Mst. Sahib Jamala and others 1994 SCMR

845. He further urges that order of the trial Court was not in consonance with the mandatory provisions of section 24(1) of the Pre-emption Act as the trial Court had passed the impugned judgment without holding any inquiry into the matter.

3. Learned counsel of the respondents has supported the impugned judgment. He further maintains that revisional Court has passed the impugned order without judicial application of mind.

4. We have given our anxious consideration to the contentions of the learned counsel of the parties. In case the judgments of all the Courts below are put in juxta position then it is crystal clear that all the orders/judgments were passed without judicial application of mind as evident from order dated 15-3-2002. Operative part of the judgment of the Additional District Judge and para.8 of the impugned judgment which did not contain any reasons. This Court has laid down parameters/guidelines that Courts have to decide the cases after judicial application of mind with reasons. See Gouranga Mohan Sikdar v. The Controller of Import and Export and others PLD 1970 SC 158 and Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC

173. After addition of section 24-A in the General Clause Act even the public functionaries are duty bound to decide the applications of the citizens after judicial application of mind with reasons as laid down by this Court in Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268. As mentioned above all the judgments and orders of the Courts below are not sustainable in the eyes of law in view of the law laid down by this Court in the aforesaid judgments. Therefore, Courts below have committed material irregularities while deciding the lis between the parties under section 24(1) of Pre-emption Act. It is settled proposition of law that the learned Courts entertaining the suits under the Punjab Pre-emption Act, 1991, ought to examine the plaint and any material accompanying it while passing orders for deposit of 1/3rd and the amount payable and direct the parties to deposit the said amount in order to avoid complication later on. See Habibullah Khan's case 1995 SCMR 345, Awal Noor's case 1992 SCMR 746, Janat Gul Khan's case PLD 1993 SC 204, Haji Gul Nabi's case 1994 SCMR 845, Mian Asif Islam's case. 1999 SCMR 1350 and Haji Gul Nabi's case PLJ 1994 SC

201. It is an admitted fact that trial Court had accepted the Probable value of the land in question in terms of annual sale average came to Rs.3,85,471.88, order for deposit of Zar-e-Soem on 15-3-2002 wherein the respondents/plaintiffs were directed to deposit Rs.1,74,

375. The respondents had complied the order, dated 15-3-2002 while depositing 1/3rd amounting to Rs.1,74,

375. In the interest of justice and fair play instead of remanding the case to determine the probable value of the property in question in term of section 24 of the Punjab Pre-emption Act, 1991 we direct the respondents to deposit Rs.5,00,000 within one month excluding the sum of Rs.1,74,375 (already deposited by the pre-emptors). This is of course subject to final determination of the sale price by the trial Court and the trial Court shall determine the sale consideration without being influenced by the observation of this Court in accordance with law.

5. In view of what has been discussed above, the appeal is allowed in the aforesaid terms with no order as to costs. M.H./M-34/SC Appeal allowed.