NAWAB KHAN Versus UMAR ALI KHAN

ORDER

SYED YAHYA ZAHID GILLANI, J.-- Nawab Khan petitioner instituted a pre-emption suit. Rs.80,000 were mentioned as sale consideration in the impugned registered sale deed but the pre-emptor disputed the sale price in the plaint with the plea that the sale was actually struck on Rs.15,000. The trial Court, on 18-5-2005, directed the plaintiff-pre-emptor to deposit 1/3rd pre-emption money within thirty days. In compliance thereof, the plaintiff-petitioner deposited Rs.5,000 within the given time. The defendants-respondents moved an application that the deposited pre-emption money is deficient and consequently the suit may be dismissed. The trial Court, vide order dated 19-9-2005, agreed and held that the sale consideration mentioned in the registered sale deed being Rs.80,000, the pre-emptor was bound to deposit Rs.26,666/67 instead of Rs.5,000, which is deficient, and resultantly dismissed the pre-emption suit. The plaintiff-pre-emptor went in appeal but failed on the ground that he did not comply with the provisions of section 24(1) of the N.-W.F.P. Pre-emption Act, 1987. Hence, this revision petition.

2. I have heard the arguments of Mr. Gauhar Zaman Kundi Advocate, learned counsel for the pre-emptor-petitioner and Mr. Sanaullah Khan Gandapur, Advocate, learned counsel for the vendee.:-respondents. Record has been gone through.

3. Learned counsel for the petitioner argued that the order of trial Court dated 18-5-2005 was not clear in terms that the amount required to be deposited was not specifically mentioned. The ambiguous order of the trial Court misled the pre-emptor. Deposit of Rs.5,000 was a bona fide mistake, correctable by the office of the trial Court, when application was moved for deposit and office report was asked for by the trial Court. The plaintiff-pre-emptor should not suffer due to act of Court. He placed reliance on the cases of Mst. Amiran Bibi v. Muhammad Ashraf 1994 MLD 2319 and Muhammad Salim v. Muhammad Amin 2002 CLC 545.

4. Conversely, learned counsel for the respondents argued that section 24(2) of the N.-W.F.P. Pre-emption Act, 1987 is quite clear that the pre-emptor is bound to deposit 1/3rd of the sale price of the property. The petitioner-pre-emptor as well as his counsel knew that Rs.80,000 were mentioned in the impugned registered sale deed as sale price and the amount to be deposited was not Rs.5.,000. This was an act of pre-emptor' and not his omission. As such this act is not condonable as held in the cases of Ghulam Shabbir v. Muhammad Khan PLD 1996 Pesh. 28, Kamran Ali Khan v. Mst. Rashda Bibi 2000 CLC 576.

5. I have contemplated over the controversy. The amount alleged as sale price in the registered sale deed was Rs.80,000 but this was not admitted by the plaintiff-pre-emptor as correct sale price. He disputing the same, raised counter allegations that the bargain was struck for Rs.15,000 only. In such circumstances the provisions of section 28 of the Act (ibid) was to come in play which make incumbent upon the trial Court to determine the market value of the property at the time of final adjudication, when the sale consideration is disputed. This being the position on record, even at initial stage, the contents of the plaint virtually disputed the amount of sale consideration.

6. There can be no difference of opinion on the point that it is always fundamental duty of a Court to pass orders sans ambiguity. In above discussed circumstances, when the sale price stood disputed in the plaint, the Court could not be deemed absolved from its important duty to clearly mention the specific amount required to be deposited by the pre-emptor, within the given time, in compliance of section 24(1) of the Act (ibid) because the pre-emptor could be under a bona tide impression that he was supposed to deposit 1/3rd of the amount which he believes to be correct.

7. In the case-in-hand, the application for deposit of pre-emption money was not drafted by counsel for the petitioner-pre-emptor nor signed by him. The job was done clerically. The Court directed Moharrir to submit report and the Moharrir simply repeated the figures mentioned in the heading of application, whereupon the Court allowed deposit, per report of Moharrir. It appears that the whole process was carried out mechanically in which the record was not consulted by the Moharrir or the Presiding Officer of the Court. The mistake ensured due' to ambiguity in the relevant order sheet, for non-mention of specific amount which could not be rectified by the Moharrir. The prevailing practice of asking report of Moharrir highlights the requirement and existence of a process of rectification wherein incorrect figures could be corrected provided that the order sheet of the Court was not confusing. So, I would not hesitate to hold that in this case the mistake in deposit of pre-emption money is attributable to the act of Court as well as the office of the Court. Had there been no system of Moharrir report and consulting the record before final permission of the Court for deposit of money, the responsibility would lie alone on the shoulders of petitioner-pre-emptor, but the existing well devised established mechanism equally makes the Court and Court's staff responsible for correction of such error. In these circumstances, the fault caused by the confusion created by the Court and error on the part of Court staff are act of the Court for which the pre-emptor-petitioner was not responsible. Reliance is placed on the identical cases of Mst. Amiran Bibi v. Muhammad Ashraf 1994 MLD 2319, Muhammad Salim v. Muhammad Amin 2002 CLC 545.

8. Moreover, reliance is also placed on the case of Gul Usman v. Mst. Ahmero and others 2000 SCMR 866. In this case, the Honourable apex Court has held that a plaintiff-pre-emptor cannot be non-suited for short deposit of pre-emption money due to mistake on the part of office of the Court.

9. The cases referred by learned counsel for the respondents are distinguishable on the point that the question of confusion created by the Court or error on the part of Court staff, relevant over here were not involved in those cases.

10. While parting with the judgment, it is pertinent to bring on record my observations that the trial Courts dealing with pre-emption cases, must mention the specific amount required by the plaintiff-pre emptor to be deposited in Court as pre-emption money especially when consideration mentioned in impugned sale deed or mutation has been disputed by a pre-emptor with a counter allegation in his plaint. This would be in the interest of justice, proper compliance of section 24(1) of the N.-W.F.P. Pre-emption Act, 1987 and apt performance of the duty of the Court towards passing unambiguous orders, leaving no room for any confusion for the party which is bound to comply the order.

11. As a sequel to above discussion. I hold that the petitioner-pre emptor could not be non-suited for short deposit of pre-emption money due to confusing order dated 18-5-2005 of the trial Court and the judgments of both the Courts below non-suiting the pre-emptor are thus in illegal exercise of jurisdiction. Such judgments are reversible in the revisional jurisdiction in the light of case law reported as Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700(f).

12. The revision petition is, therefore, accepted, the impugned judgments and decrees of the trial as well as appellate Court are set aside and pre-emption suit of the plaintiff-pre-emptor is restored for trial from the stage at which it was dismissed. The parties are directed to appear in the trial Court on 13-10-2008. The trial Court shall inform the plaintiff-petitioner about exact figures of deficit amount of 1/3rd pre-emption money, for deposit by him within one month from the date of conveying him the exact due amount.

H.B.T./28/P Petition accepted.