ABDUL GHAFOOOR Versus IQBAL BEGUM

Land measuring 100 kanals and 5 marlas situate in the revenue estate of Hadali, Tehsil Pasrur, District Sialkot was sold by its owner Muhammad Siddiq to Abdul Ghafoor, applicant, and Ismail, respondent No. 3 on the 3rd of June 1964. Mst. Iqbal Begum and Shahid Jamil, respondents 1 and 2 filed a suit on the 29th of May 1965 for possession of this land through pre emption. In obedience to an order of Court, the plaintiffs deposited on the 21st of July 1967 an amount of Rs. 3,000 which represented one-fifth of the sale price. During the pendency of the suit, Ismail sold away his share in the land to Abdul Ghafoor. The Civil Judge by his judgment dated the 11th of January 1968 decreed the suit of the plaintiffs on payment of Rs. 14,088 which included also the mortgage money of Rs. 2,600. and directed them to deposit the remaining amount of Rs. 11,088 which represented the balance of the pre-emption money, by the 25th of February 1968. The plaintiffs complied with the order on the 14th of February 1968. Abdul Ghafoor, defendant went in appeal against the judgment and decree. The plaintiffs also filed an appeal assailing the findings of the trial Judge on issues 5 and 6, and pleaded that the pre-emption money had not been correctly determined. Both the appeals were dismissed by the learned Additional District Judge, Sialkot, by his judgment and decree dated the 13th of February 1969. Abdul Ghafoor filed a second appeal in this Court which was admitted to full hearing on the 4th of March 1969. In the application for suspension of the operation of the judgments and decrees of the Courts below, the learned Judge observed: "The operation of judgment and decree of the lower Appellate Court is suspended provided the appellant furnishes security to the satisfaction of the executing Court within the meaning of Order XLI, rule 5, C. P. C" During the pendency of the defendant's second appeal, the plaintiff respondents submitted an application seeking permission of the Court to withdraw the pre-emption money, pending decision of the appeal. Mr. Justice Nasim Hassan Shah thereupon passed the following order on the 24th of April 1969:

"Learned counsel for the appellant does not oppose the prayer of the respondents for withdrawal of the amount of Rs. 14,088 pending decision of this appeal. The prayer of respondents Nos. 1 and 2 in this regard is granted and the order passed by this Court on 14-3-69 is varied to the extent just mentioned."

2. The only ground taken by the defendant-vendee in the second appeal was that the sale being of evacuee property it was not pre-emptible. Relying on the dictum in Sultan Muhammad v. Muhammad Siddiq P L D 1973 S C 347, 1 dismissed the defendant-vendee's appeal by my judgment and decree, dated the 19th of June 1974. This is a petition under rule I of Order XLVII of the Code of Civil Procedure seeking review thereof.

3. It is contended by the learned counsel for the applicant that the moment the plaintiff pre-emptors withdrew the pre-emption money, their suit stood dismissed under clause (a) of subsection (5) of section 22 of the Punjab Pre-emption Act, 1913, and consequently the appeal of the defendant-vendees should have succeeded. Section 22 of the Act reads as follows:-

"22. (1) In every suit for pre-emption the Court shall at, or at any time before, the settlement of issues require the plaintiff to deposit in Court such sum as does not, in the opinion of the Court, exceed one-fifth of the probable value of the land or property, or require the plaintiff to give security to the satisfaction of the Court for the payment, if required of a sum not exceeding such probable value within such time as the Court may fix in such order.

(2) In any appeal the Appellate Court may at any time exercise the powers conferred on a Court under subsection (1).

(3) Every sum deposited or secured under subsection (1) or (2) shall be available for the discharge of costs..

(4) If the plaintiff fails within the time fixed by the Court or within such further time as the Court may allow to make the deposit or furnish the security mentioned in subsection (1) or (2), his plaint shall be rejected or his appeal dismissed as the case may be.

(5) (a) If any sum so deposited is withdrawn by the plaintiff, the suit or appeal shall be dismissed.

(b) If any security so furnished for any cause becomes void or insufficient, the Court shall order the plaintiff to furnish fresh security or to in crease the security, as the case may be within a time to be fixed by the Court, and if the plaintiff fails to comply with such order, the suit or appeal shall be dismissed.

(6) Estimate of the probable value made for the purpose of subsection (1) shall not affect any decision subsequently come to as to what is the market value of the land or property."

In support of his contention that the provisions of clause (a) of subsection (5) of section 22 of the Act were applicable to the present case, learned counsel for the applicant placed reliance on Paras Ram v. Dalpat Rai 54 I C 268 where the facts were that the plaintiff had filed a suit for pre-emption which was decreed on the 26th of August 1918 by the trial Court. The District Judge accepted the appeal and dismissed the suit of the plaintiff on the ground that the sale was for necessity. The High Court also upheld this finding. However, while dealing with the contention that the alternate claim for pre-emption had been ignored by the lower appellate Court, it was observed by Martineau. J. "This contention is correct, but the claim for pre-emption must also fail, as the money deposited by the plaintiff under section 22 of the Pre-emption Act was withdrawn by him on the 11th November 1918. Subsection 5(a) of that section provides that if the sum deposited is withdrawn by the plaintiff the suit or appeal shall be dismissed." The facts of that case are distinguishable from those of the one in hand. In that case the plaintiff withdrew the amount during the pendency of the vendee's appeal before the District Judge, without leave of the Court. The plaintiff respondents in the instant case had depo sited one-fifth of the sale price during the pendency of the suit. When the suit was decreed in their favour, they deposited the remaining amount of the pre-emption money as determined by the Court. The amount was not with drawn by them till the disposal of the first appeal by the Additional District Judge. They did not do so even when this Court admitted the second appeal to full hearing and suspended operation of the judgments and decrees in favour of the plaintiff-respondents. Even during the pendency of the second A appeal they did not withdraw the amount without leave of the Court. Their application seeking permission of the Court in this behalf was not opposed by the counsel for the applicant, as is evident from this Court's order dated the 24th of April 1969 whereby the prayer of the plaintiff-respondents was allowed. Learned counsel for the applicant then relied on Prem Singh v. Lakha Singh and others A I R 1929 Lah. 387. In that case the judgment delivered by Dalip Singh, J., was : "In this case, the plaintiff sued for pre-emption of certain property and was ordered to deposit certain money. He deposited the same but his suit was dismissed. After the suit was dismissed he withdrew the deposit money. It is alleged that he re-deposited it before the appeal, which he took for that decree, was heard. The learned Judge in appeal held that under the terms of section 22(5) the plaintiff's appeal was bound to be dismissed and accordingly dismissed the appeal. He also held that there was nothing on the record to show that the plaintiff had re-deposited the amount and if he had, as the trial Court had become functus officio, no such re-deposit could be regarded as valid. In the second appeal all that has been contended before me is the having regard to the terms of section 22(2) the appeal or suit should only be dismissed if there is an order by the appellate Court to deposit the pre-emption money afresh and that withdrawal of the deposit money ordered to be deposited by the trial Court does not mean that the appeal should be dismissed without such an order by the appellate Court. Paras Ram v. Dalpat Rai however, is directly against this argument. This is a Single Bench ruling, but I see no reason to differ from it and it seems to be supported by the view of the learned author, Mr. Elbs on Pre emption in his Commentary at p. 320 of the 5th Edn. I, therefore, dismiss the appeal with costs." Apart from the fact that Dalip Singh, J , had not given any reason whatsoever in support of his decision, his judgment had no validity in law inasmuch as it was based wholly on an earlier decision of a Single Judge of the Lahore High Court in Paras Ram v. Dalpat Rai which had itself lost all sanctity, because a contrary decision had, in the meantime, been pronounced by a Division Bench, comprising Lumsden and Abdul Raoof, JJ., of the same Court in Sanwal Day v. Jaigo Mal and others A I R 1924 Lah.

68. Their Lordships had observed: "It appears that after the institution of this appeal the appellant obtained an order for stay of execution. The plaintiffs-pre-emptors thereupon applied for permission to withdraw the pre-emption money deposited in accordance with the decree and this application was accepted by a Judge in Chambers. The pre-emptors armed with this permission accordingly with drew their deposit of Rs. 9,221-13-0. Counsel for the appellant now argues that the withdrawal of this sum entails the dismissal of the pre-emptors' claim under the provisions of clause (a) of subsection (5) of section 22 of the Pre emption Act, 1913. In the special circumstances we have allowed this objection to be raised though no additional ground of appeal relating to it was put in. We are satisfied, however, that the objection must be repelled. In the first place the pre-emptors are not the appellants in the case. In the second place the word 'so' in the clause cannot be ignored. That word refers to the preceding section and in the case of an appeal obviously relates to action taken by an appellate Court under subsection (2). 1n the present case there is no order by this Court under that subsection. In the third place it is clear that the object of an order under section 22(1) is to guarantee vendees against frivolous proceedings on the part of possible pre-emptors. The deposit is a token of good faith and once the pre-emptor has obtained a decree, the need for a deposit no longer exists so far as the trial Court is concerned. No doubt such deposits are available for the discharge of costs (section 22(3)) but such satisfaction is not the raison detre of the deposit and there is nothing to suggest that a vendee-appellant is entitled to any advantage of the kind. We have no hesitation, therefore, in holding that section 22(5)(a) does not apply to the present appeal." Moreover, the observations are applicable only when the plaintiff-pre-emptor is the appellant and he withdraws the money. In such an event, the suit or the appeal, as the case may be, has to be dismissed under the said clause, but if the plaintiff who is the successful pre-emptor is a respondent in an appeal, the question of dismissal of the appeal does not arise. If there had been any intention on the part of the Legislature to make the withdrawal of the pre-emption money on the part of the respondent-pre emptor militate against him, it could do so by providing in subsection (5)(a) of section 22 that "if any sum so deposited is withdrawn by the plaintiff, the suit or appeal shall be dismissed, and if he is a respondent in an appeal, the appeal shall be accepted". Therefore, in the absence of any provision to that effect, it cannot be said that if the plaintiff-respondent withdraws the amount, the appeal should be accepted. At any rate, the view taken by Dalip Singh, J., in Prem Singh v. Lakha Singh and others was given per incuriam because he acted in ignorance of a previous pronouncement of a Division Bench of his own Court in Sanwal Das v. Jaigo Mal which was binding on him sitting as he was in Single Bench. Learned counsel for the appellant also placed reliance on Azhar Ali v. Nur Mohammed P L D 1960 Lah, 728 where Shabir Ahmad, J. (with whom B. Z. Kaikaus, J., concurred) observed: "It will be noticed that clause (a) of subsection (5) reproduced above talks of a suit or an appeal which it enjoins must be dismissed if the money deposited under the orders of the Court passed under section 22 of the Punjab Pre-emption Act is withdrawn without the permission of the Court." The pre-emption money was withdrawn in the present case with the permission of the Court and, therefore, the case does not militate against the respondent. Besides, it was not the ratio decidendi of the case and the observations were only obiter dicta. The facts of that case were that Azhar Ali brought a suit for possession of a piece of land by pre-emption. The suit was decreed on the 10th of June 1955. When the decree-holder took out execution, objections were raised on behalf of the vendee-defendants that the decree was a nullity inasmuch as a month before the date it was passed, one of the vendees had died and his legal representatives had not been brought on record in his place. The executing Court upheld the objection and dis missed the execution application. The decree-holder, Azhar Ali Shah, went in appeal against this order. Abdul Aziz Khan, J., by his order dated the 26th of June 1958 dismissed the appeal on a preliminary objection raised on behalf of the vendees "that the appeal, which was presented on the 1st of October 1956 could not proceed because the decree-holder had, on the 2nd of October 1956, i.e., one day after be presented the appeal to this Court, with drawn the money he had deposited in obedience to the decree of the Court, including one-fifth of the sale price which had been deposited soon after the institution of the suit in obedience to the orders of the trial Court under section 22 of the Punjab Pre-emption Act." Manifestly enough, the appeal which Abdul Aziz Khan, J., had dismissed was not against the original judg ment whereby the suit of the plaintiff pre-emptor had been decreed. It was an appeal against the order passed in execution proceedings. In the Letters Patent Appeal the contention raised before the Division Bench was that the word "appeal" occurring in clause (a) of subsection (5) of section 22 of the Punjab Pre-emption Act included "an appeal in execution". 'the contention was repelled by observing : "I find it difficult to accept this contention, because it does violence to the clear language of section 22 of the Punjab Preemption Act. The context in which the word 'Appeal' occurring in clause (a) of subsection (5) of section 22 of the Punjab Pre-emption Act makes it clear that the appeal contemplated is an appeal in the suit and that too only an appeal by the plaintiff who seeks to get possession in exercise of a right of pre-emption. If the Legislature had intended that even appeals against orders passed in execution were liable to be dismissed if the decree -holder had before the appeal in execution had been disposed of, withdrawn the money which had been deposited under section 22 of the Punjab Pre emption Act, one would have expected to find this clearly mentioned in the section. Of such mention there is a complete absence and I am clear in my mind that it is not permissible to extend the meaning of the word 'appeal' occurring in subsection (5) of section 22 of the Pre-emption Act, especially because by doing that one would be doing violence to the plain language of the statute. This kind of violence to the plain language of a statute is pro hibited by all canons of interpretation, because if Courts were to have the power to extend the meaning of the words used in a statute. they will be travelling beyond their function which is to interpret law and will be launching on what is not their function, i.e., amending or making law. I see no escape from the contention raised by the learned counsel for the appellant that clause (a) of subsection (5) of section 22 the Punjab Pre-emption Act cannot apply to an appeal against an order passed in execution proceed ings themselves and hold accordingly". From the facts, the contentions raised by the respective parties and the decision pronounced by the Division Bench, it is abundantly clear that the observations, viz., "it will be noticed that clause (a) of subsection (5) reproduced above talks of a suit or an appeal which it enjoins must be dismissed if the money deposited under the orders of the Court passed under section 22 of the Punjab Pre-emption Act is withdrawn without the permission of the Court" were not necessary to the decision, went beyond the occasion and laid down a rule that was unnecessary for the disposal of that case. All the observations in a judgment cannot be deemed to establish authoritatively a proposition of law, unless the same form the integral part of the train of reasoning directed to the real question decided. This train of reasoning or the principle upon which the question before the Court has really been determined and which forms the only authoritative element of a precedent is often termed the ratio decidendi. and observations which are not the foundation of a decision are regarded as obiter dicta. Once the learned Judges had held that the word "appeal" occurring in clause (a) of subsection (5) of section 22 of the Act did not include an appeal in execution, the question whether or not an appeal stands dismissed if the pre-emption money is withdrawn without previous permission of the Court could not arise. This question would have invited a decision by the Court only if their Lordships bad held that the word "appear' included an appeal against a decision in execution also. Accordingly, I am of the view that whereas the reasoning directed to the question whether or not the word "appeal" occurring in clause (a) of subsection (5) of section 22 also included an appeal against an order passed in execution proceedings were rationis, the observations in question were merely obiter, and have no binding authority.

4. No other point is urged. The petition has no merit and is dismissed accordingly. There shall, however, be no order as to costs.

S. A. H. Petition dismissed