NAZAR HUSSAIN Versus DISTRICT JUDGE, ATTOCK

ORDER

1. The facts of the case taken from the available record giving rise to the' present litigation are briefly these:‑

2. Nazar Hussain, Talib Hussain petitioners purchased 15 kanals 3 marlas of land situate at Mauza Tanveen, Tehsil Pindigheb. Sultan Muhammad and Haq Nawaz pre‑empted the sale. On 24‑3‑1983, a decree was passed for possession of 13/14th share in the suit land fn favour of Sultan Muhammad conditionally on payment of Rs.11,607 whereas the remaining 1/14th share was decreed to Haq Nawaz subject to payment' of Rs.893. Sultan Muhammad decree‑holder complied with the terms of the decree and deposited the purchase money in time. Haq Nawaz rival pre‑emptor decree‑holder and the vendees went up in appeal. Learned Additional District Judge, Attock, accepted the appeal and gave decree for possession by pre‑emption to the extent of 1/2 share to each, namely, Sultan Muhammad and Haq Nawaz, subject to payment of Rs.6,250. As Sultan Muhammad had already deposited a sum of Rs.11,607, in appellate Court in regard to him observed that his legal heirs shall receive the refund of the excess amount. In regard to Haq Nawaz, he was directed to deposit the enhanced amount till 31‑10‑1984. It is not in dispute that Haq Nawaz faithfully complied with the terms of the decree mace on appeal and got title to the land decreed in his favour. Un the strength of the direction in the decision of the Appeal Court, legal heirs of Sultan Muhammad deceased received in refund Rs.6,250, whereas on proper calculation they were entitled to refund of Rs.5,357 only. This amount was received by them through cheque on 22‑12‑1984. It is not in dispute that the refund obtained was in excess to the extent of Rs.893.00. Nazar Hussain and Talib Hussain applied to the trial Court for receiving the purchase money deposited by decree‑holders. They received the amount deposited by Haq Nawaz but in regard to the amount deposited by Sultan Muhammad it was discovered that only a sum of Rs.5,357 was lying in deposit with the trial Court, and that the excess amount was withdrawn by the legal heirs of Sultan Muhammad decree‑holder. In this circumstance, vendees requested the trial Court that the decree passed in favour of Sultan Muhammad had become void and that it be declared as such. In reply it was submitted that it wag because of inadvertence that the excess amount than the one permitted by the Appeal Court was withdrawn by them and that they be permitted to deposit the shortfall of Rs.893. Trial Court entertained their request and allowed them to deposit the sum of Rs.893 for being paid to the vendees, and at the same time permitted the latter to receive a cheque of Rs.6,250 from the Court vide its decision dated 11‑11‑1985. Vendees of the suit property preferred a revision (Civil Revision No.24/86). It failed on 4‑5‑1986 in the Court below.

3. In application under Article 199 of the Constitution filed by the vendees through Malik Mukhtar Hussain, Advocate, it is contended that since the purchase money was short paid by a sum of Rs.893, pre‑emption decree given to Sultan Muhammad deceased became void as his suit shall be deemed to have been dismissed in terms of order XX, Rule 14, C.P.C. as also the mandatory requirements, in which the pre‑emption decree was couched. In support, learned counsel referred to some decisions, which either related to decisions under section 22, Punjab Pre‑emption Act, 1913, or were decisions to the effect that if purchase money is not paid within the time fixed by the Court in the pre‑emption decree, pre‑emption suit stands dismissed automatically and the decree passed becomes void. Some of the decisions cited at the bar indicated that the Court after passing a decree becomes functus officio to extend the time for deposit of pre‑emption money. Since no such point was involved in the case, the decisions cited at the bar are not much helpful to the petitioners and I do not think it necessary to make a reference thereto because it shall serve no useful purpose. Effect of non‑payment of purchase money in time on the fate of suit is not in dispute. The question arising herein was slightly different, and turned on the effect of the withdrawal of purchase money after it had been deposited in Court in time. Matter can be looked at with reference to Order XX, Rule 14, C . P. C . So for as it is relevant for our present purpose, it reads:‑

4. "Decree in pre‑emption suit‑‑-----

(1) Where the Court decrees a claim to pre‑emption in respect of a particular sale of property and the purchase money has not been paid into Court the decree shall‑‑

(a) specify a day on or before which the purchase money shall be so paid, and

(b) direct that on payment into Court of such purchase money together with costs (if any) decreed against the plaintiff, on or before the date referred to in clause (a) the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase money and the costs (if any) are not so paid, the suit shall be dismissed with costs. "

5. From the above, it manifestly appears that title of the plaintiff to the pre‑empted property commences from the date of payment of purchase money into Court and not from the date of the decree or the sale. Payment should be of full amount and in case purchase money is short paid, the pre‑emption suit suffers a complete dismissal and the decree becomes a decree in favour of defendant: It is not denied that trial Court gave decree to the extent of 13/14th share the suit property to Sultan Muhammad plaintiff subject to his paying Rs.11,607 in Court for its being paid to the vendees. This amount was admittedly deposited by him in time in Court. In accordance with the plain language of the pre‑emption decree and the provisions of Order XX, Rule 14, C.P.C., title to the land decreed in his favour became complete on the date of this payment. However, it was subject to the result of legal remedies available under law to challenge the decree. As observed above, on the appeals of Haq Nawaz rival pre‑emptor and the vendees decree passed by the trial Court was modified. Share in the land given to Sultan Muhammad was reduced to 1/2 and the share decreed to Haq Nawaz was increased correspondingly. Haq Nawaz was directed to make good the deficit deposit but Sultan Muhammad was allowed refund. It so happened that the successors of Sultan Muhammad in getting the refund as ordered by the Appeal Court received Rs.893 in excess. What is the effect of this withdrawal on their rights is the only question, which arises for consideration in the present application. It was observed by the Supreme Court in Shah Wali v. Ghulam Din alias Gaman and another (P L 1) 1966 SC 983):‑

6. "A decree passed in a successful pre‑emption suit is of a composite and contingent character. If the pre‑emptor satisfies the condition imposed on him with regard to deposit of pre‑emption decree, the decree for possession becomes operative in his favour. If he commits a default in that respect, the decree, dismissing the suit becomes effective."

7. In these circumstances, if the pre‑emptor elects not to accept the decree, he is at liberty either to pay or not to pay the purchase money and this is so even if on the trial Court's passing a decree for a certain sum he deposited the decretal amount but on appellate Court's enhancing the amount he decides not to comply with the decree given on appeal and elects to claim refund of the purchase money. In any case, if the pre‑emption decree, either of the trial Court or the Appeal Court is not complied with in regard to the payment of the purchase money, the legal effects visualized in Order; XX, Rule 14, C.P.C. immediately take effect. However, after the purchase money has been deposited in Court in obedience to the decree it belongs to the vendee who is to be divested of his title to the pre‑empted land which is transferred by the force of decree to the successful pre‑emptor. Therefore, if the decree‑holder elected to comply with the terms of the decree and paid the necessary amount, he cannot change his mind subsequently and ask the Court for refund of the purchase money, because the money belongs to the vendee and ownership of the land vests in the successful pre‑emptor. From the above conclusions, it is clear to me that the withdrawal of excess amount viz. Rs.893 would not lead to the dismissal of the pre‑emption suit tiled by Sultan Muhammad as claimed by the petitioners and the only right, which the vendees could legitimately claim was the redeposit of the shortfall and its payment to them. Learned counsel did not cite any decision at the bar, which covered the point involved in the case or came near to its facts. However, on my looking into the law I came across a decision from the Punjab Chief Court in Abdullah v. Amir‑ud‑Din and others (76 Punjab Records 1902) which materially assists the decision of the present case and covers the point mooted at the bar. This decision, in my opinion, enunciates a correct statement of law with which I respectfully agree and hold that the impugned decisions of the Courts below do not call for interference in constitutional jurisdiction. Accordingly, writ petition is found to be without substance and is dismissed in limine.

8. A.A./N‑94/L Petition dismissed.