MUHAMMAD FAROOQ Versus DISTRICT JUDGE, MARDAN

MUHAMMAD BASHIR KHAN JEHANGIRI, J : The short question arising in this writ petition is whether the extension of the validity of bank guarantee furnished after few days of the expiry of stipulated date would be tantamount to withdrawal within the contemplation of section 24(3) of the N: W.F.P. Pre‑eruption Act (No.X of 1987) (hereinafter called as the Act).

2. The relevant facts are that on 4‑12‑1987 Haji Noor Muhammad Khan, respondent No.3 herein, filed a suit for pre‑erupting 108 square yards equal to 3‑3/5 marlas of land situated in Mardan which had been sold by means of mutation No.1474 attested on 7‑12‑1986 in favour of Muhammad Farooq.and 4 other vendees for an ostensible sum of 85.6,00,000. The respondent No.3 asserted that true price was only Rs.1,00,000 whereas the remaining amount was fictitious. The learned trial Judge, acting under subsection (1) of section 24 of the Act, passed an order that pre‑emptor should deposit Rs.2,00,000 in cash in Court and furnish bank guarantee for the remaining Rs.4,00,000 before the specified date. Accordingly the cash amount was deposited and the bank guarantee valid up to 1‑1‑1989 was furnished on 2‑1‑1988 by the Muslim Commercial Bank, Bank Road Branch, Mardan. The validity of original bank guarantee (No.40/01 dated 2nd January, 1988) was extended up to 1st January, 1990 but the memo. of extension was dated 19‑12‑1988. Again, the same guarantee was extended up to 1st January, 1991 but the memo. was dated 14‑1‑1990.

3. On 24‑4‑1991, the vendees‑defendants made an application to the learned trial Court praying for dismissal of the suit for the failure of the pre emptor to furnish `renewal' of the original bank guarantee before the expiry of the date of validity thereof. This application was, however, rejected by the learned trial Judge by his order dated 18‑5‑1991 and deferred the disposal of the objection till completion of the evidence of the parties as the two P.Ws. had already been examined.

4. The vendees‑petitioners went in revision to the learned District Judge, Mardan, which was dismissed on the ground that `as the Bank Guarantee stands valid up to 1‑1‑1992, therefore, for want of renewal of Bank guarantee the pre‑eruption suit of the pre‑emptor cannot be dismissed.'

5. Aggrieved by the orders referred to above, vendees‑petitioners have come up with the instant petition.

6. Mr. Muhammad Umar Khan, learned counsel for the petitioners, contended that section 24(2) of the Act is in para materia with section 23(5) of the N: W.F.P. Pre‑eruption Act, 1950 (since repealed) and, therefore, the failure on the part of the pre‑emptor to get his original guarantee validated before the expiry of the stipulated date would be tantamount to `withdrawal of the sum deposited' whereby the suit was liable to dismissal.

7. Mian Shakirullah Jan, learned counsel for the respondent, on the other hand, contended that it was not a case of withdrawal of bank guarantee within the contemplation of subsection (3) of section 24 of the Act. According to him, the certificate qua the extension of validity of the original guarantee had been furnished for ,the first time with 18 days and the second 13 days' delay which does not attract the punitive section provided for under subsection (3) of section 24, ibid. The learned counsel then submitted that the impugned order was interlocutory in nature, therefore, it did not attract the extraordinary jurisdiction of judicial review vested in this Court.

8. After hearing the learned counsel for the parties at length, we regret that we have not been able to subscribe to the interpretation of section 23(5) of repealed Act or that of section 24(3) of the Act put forth on behalf of the petitioners. It is neither a case of withdrawal of the cash deposit within the contemplation of section 23(5)(a) of the repealed Act nor of withdrawal of the sum deposited by him or of bank guarantee furnished by him under subsection (3) of section 24 of the Act. A close look into the bank guarantees, photo copies Annexures V and VI, would show that the letters of validation of the original bank guarantee No.40/01 dated 2nd January, 1988 firstly up to Ist January, 1991 and subsequently up to 1st January, 1992 were respectively dated 14‑1‑1990 and 17‑1‑1991. The precise objection raised on behalf of the petitioners is that it should have been dated prior to 1st January, 1990 and 1st January, 1992 respectively. Apparently, it is a case of furnishing with delay of 18 days in the first and 13 days in the second instance the certificate of validation of the original guarantee. It is not even a case of delayed validation of the original bank guarantee. It is also doubtful if, in the circumstances of this case, the punitive action envisaged by section 24, ibid, would have been legally warranted against the pre‑emptor because, as stated earlier, it is not the case of withdrawal of the bank guarantee but delayed certification of its validity to the trial Court. Both the validated guarantees disclose that validity thereof had been extended up to 1st January. 1990 and 1st January, 1991.

9. The learned trial Judge, as stated earlier, had no doubt deferred the disposal of the application culminating in this petition. The learned revisional Court, however, dismissed the petition on merits and held that delayed furnishing of extension of validity of the original guarantee did attract the punitive action as prayed for before it. In consequence, the impugned order of the learned District Judge has not remained one of interlocutory nature. Even if it be so, all the interlocutory orders are not immune from the writ jurisdiction of the superior Courts. We are, therefore, clear in mind that the impugned order is not of interlocutory nature and even if it be, so, having been decided on merits in revision, it would be amenable to our extraordinary jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.

10. For the above reasons, we hold that there is no force in this writ petition which is accordingly dismissed. The stay order issued by this Court on 6‑10‑91 is recalled.

AA./1268/P Petition dismissed.