Haji BAHADAR HILAL Versus Engineer MUHAMMAD AYUB

MALIK HAMID SAEED, J.‑‑‑ Haji Bahadur Hilal, petitioner, is the pre‑emptor in a suit filed by him against Engineer Muhammad Ayub Khan, respondent, before the Senior Civil Judge/A'ala IIlaqa Qazi, Swat, praying for grant of a decree with respect to the suit‑land having been sold to the defendant at a sale consideration of Rs.36 lacs. The learned trial Court directed the pre‑emptor/petitioner to deposit 1/3rd amount of the aforesaid amount as pre‑emption money before 18‑2‑2004, which order has been complied by the petitioner even before the said date. The respondent/defendant instead of filing written statement, however, filed an application before the learned Senior Civil Judge on 18‑2‑2004 praying therein that the petitioner be directed to deposit 1/3rd of Rs.76 lacs as pre‑emption. The petitioner contested the said application but the learned lower Court accepted the plea of the respondent and directed the petitioner to deposit 1/3rd of Rs.76 lacs before 6‑5‑2004 vide order, dated 6‑4‑2004, hence this revision petition by the petitioner.

2. Perusal of the material placed on file reveals that the learned trial Court reviewed its earlier order on the basis of a deed purportedly executed on 15‑9‑2003 wherein the transaction in question is shown to have taken place at a sum of Rs.76 lacks and certain cheques drawn in the concerned bank in the account of the vendor.

3. The learned trial Court while deriving meaning of the word "Probable, value" as used in section 24 of the N.‑W.F.P. Pre‑emption Act, 1987, from various Dictionaries and placing reliance on the authority reported in 1994 SCMR 845, directed the petitioner to deposit one‑third of 76 lacs as the sale price of the property, as according to the learned trial Court the august Supreme Court in the said judgment has distinguished its judgment reported in 1992 SCMR 746.

4. In the case reported in 1992 SCMR 746, the question before the august Supreme Court was as to whether the trial Court can make a fresh order for deposit of 1/3rd of the pre‑emption amount beyond the period of 30 days as mentioned in section 24 of the N.‑W‑F‑P‑ Pre‑emption Act. The august Supreme Court of Pakistan, therefore, held no order can be passed after the period of 30 days as given in section 24 of the N.‑W.F.P. Pre‑emption Act. It may be mentioned that by now the said period of 30 days has been substituted with the words "within such period as the Court may fix".

5. The case reported in 1994 SCMR 845 was of the nature that the plaintiff/pre‑emptor alongwith his suit had filed a copy of the alleged mutation in which the price of Rs.70,000 was mentioned, but when the defendant produced copy of the actual mutation, the original receipt of District Council and the report of Patwari, it revealed that the plaintiff had produced an incorrect copy of the mutation, hence order was passed on the basis of the price mentioned in the actual mutation and the august Supreme Court of Pakistan also held the same as an appropriate and legal order for deposit of money under section 24 of the N.‑W.F.P. Pre -emption Act.

6. In this case, both the aforesaid circumstances are missing. Neither the order is beyond the prescribed limit of 30 days after amendment of section 24 of the N.‑W.F.P. Pre‑emption Act nor did the plaintiff produce any documentary proof with his plaint. The stand of the petitioner/plaintiff as mentioned in the plaint is that on 20‑12‑2003 he was informed about selling of the property in favour of the defendant at a sum of Rs.36. lacs whereafter he made the required Talb and asked the defendant to receive the said amount of Rs.36 lacs from him and hand over the suit property to him but he refused. The learned trial Court on 5‑1‑2004 summoned the defendant for 18‑2‑2004 and also ordered the plaintiff to deposit 1/3rd of Rs.36 lacs, which he deposited well before the next date of hearing. On 18‑2‑2004 the defendant instead of filing written statement filed an application supported by a deed with respect to the suit property whereby the same was purchased at a sum of Rs.76 lacs and also copies of certain cheques vide which he had transferred the said amount to the vendor's account. The petitioner/plaintiff contested the application and stated that the deed in question vide which the defendant purchased the suit property is unregistered, hence yet to be proved at the trial and that the bank statement and alleged cheques are also obtained by deceitful manners hence cannot be relied upon for want of cogent proof.

7. Para. 7 of the application of the defendant/respondent before the learned trial Court is to the following effect:‑‑

From the above it can be presumed that even the alleged amount of Rs.76 lacs was less than the market value of the suit property (probably less amount would have been entered for avoiding high taxation). Anyhow, the defendant would try for a high amount than Rs.76 lacs according to the market value whereas the plaintiff would prove his own stand, but at this stage one thing is very much clear that neither the amount of Rs.36 lacs nor the amount of Rs.76 lacs is the actual price of the, suit property and the objections raised by the plaintiff/petitioner about non‑registration of the deed and obtaining other documents through deceitful manner which are yet to be proved at the trial get force in the circumstances of the case, requiring the dismissal of the application of the defendant for issuing another order for the deposit of the requisite amount within the meaning of section 24 of the N.‑W.F.P. Pre‑emption Act.

8. The fixation of the amount under section 24 of the N.‑W.F.P. Pre‑emption Act is tentative in nature and the very purpose of section 24 is to keep a check on frivolous suits and the Court would proceed with the case only when a suitable security is furnished by the pre‑emptor by the deposit of cash. The actual price of the suit property is yet to be determined by the trial Court after recording of evidence and the same would be payable by the plaintiff/petitioner if he succeeds to establish his superior right of pre‑emption before the learned trial Court. In our view, the impugned order dated 6‑4‑2003 of the learned trial Court, in absence of any authentic document and the fact that the same has been passed at a time when the defendant is yet to appear and file his written statement, is not in consonance with the spirit of section 24 of the N.‑W.F.P. Pre emption Act and is, therefore, liable to be set aside.

9. This revision petition is, therefore, admitted and accepted accordingly. The impugned order, dated 6‑4‑2003 of the learned trial Court is set aside with direction to the trial Court to proceed further in the matter in accordance with law. No order as to costs.

H.B.T./135/P Revision petition accepted.