HAJI FAZLE REHMAN Versus HAJI GUL NABI
JUDGMENT.
This revision petition is directed against the order and judgment 'of the learned Addl. District Judge, Mardan dated 24‑11‑1991 whereby the order and judgment of learned Civil Judge, Takht Bhai dated 3‑6‑1991 was maintained.
2. Brief facts of the case are that the petitioner filed suit for pre‑emption in the Court of learned Senior Civil Judge, Mardan on 27‑1‑1991. Vide order dated 27‑1‑1991 the plaintiff/petitioner was directed to deposit 1/3rd of the sale price i.e. 24,000 in cash and to furnish a bank guarantee of the remaining amount within thirty days. Plaintiff/petitioner was also allowed to deposit the entire sale consideration, if he so desired, and in fact the plaintiff/petitioner deposited the entire amount of Rs.70,000. Thereafter, the case was transferred for trial to Civil Judge, Takht Bhai. On 22‑4‑1991 respondent/defendant submitted an application for dismissal of suit or in alternative issuing a direction to the plaintiff/petitioner to deposit Rs.7,00,000 (seven lacs). This application was contested by the plaintiff/petitioner but the learned Civil Judge reviewed the previous order of learned Senior Civil Judge, Mardan by directing the plaintiff/petitioner to deposit Rs.7,00,000. Against the order of the Civil Judge, the plainiff/petitioner filed appeal before the learned District Judge Mardan which was dismissed, vide impugned order dated 24‑11‑1991.
2‑A. I have heard the learned counsel for the parties and have perused the record. Learned Counsel for the petitioner submitted that section 24 of the N: W.F.P. Pre‑emption Act, 1987 is very clear which lays down that in every pre‑emption suit the Court shall require the plaintiff to deposit in Court 1/3rd of the sale price of the property in cash and for the remaining 2/3rd to furnish bank guarantee to the satisfaction of the Court within such period as the Court may fix. He further referred to section 24 of the Act which provides that such period shall not extend beyond thirty days of the filing of the suit. For convenience sake section 24 of the N.‑W.F.P. Pre‑emption Act, 1987, is reproduced below:‑‑
"(1) In every suit for pre‑emption the Court shall require the plaintiff to deposit in such Court one‑third of the sale price of the property in cash and for the remaining two‑third furnish bank guarantee to the satisfaction of the Court within such period as the Court may fix."
3. Learned counsel for the plaintiff/petitioner submitted that the pre -emption suit was filed on 27‑1‑1991 and on the same day the Court ordered that the plainiff/petitioner should deposit 1/3rd i.e. 24,00,000 in cash and furnish a bank guarantee for the remaining amount within thirty days. He submitted that the plaintiff/petitioner deposited the entire pre‑emption amount of Rs.70,000 within the specified period. He submitted that Mutation No.5321 attested on 29‑1‑1990 shows Rs.70,000 as sale consideration of the said land and not 7,00,000 (seven tars). He further submitted that the second order of depositing of Rs.7,00,000 by the petitioner as a pre‑emption amount was passed on 3‑6‑1991 which was beyond the period of thirty days which is hit by the first proviso to subsection (1) of section 24 of the Act, 1987. Learned Counsel for the petitioner placed reliance on 1992 SCMR 746.
4. On the other hand, the learned counsel for the respondent/defendant submitted that the first order was .passed by the learned Senior Civil Judge on the wrong information furnished by the plaintiff/petitioner. He submitted that as matter of fact the sale consideration was Rs:7 lacs and not 70,000. He submitted that the respondent filed an application before the Collector for correction of the entries in the mutation with regard to the sale amount which was accordingly done after hearing both the parties. According to the order of the Collector the sale amount was Rs.7 lacs and not 70,000 on which a cess/tax was paid by the vendee to the concerned District Council. He submitted that when this fact was brought to the notice of the Court it passed the impugned order asking the plaintiff/petitioner to deposit Rs.7 lacs. He submitted that the impugned order was not in fact a review order but it was an order just to modify/replace the previous order of the learned Senior Civil Judge Mardan. He further submitted that the authority quoted by the learned counsel for the petitioner is not applicable in the present case.
5. After giving consideration to the arguments advanced by the learned counsel for the parties, I have core to the conclusion that the impugned order passed by the learned Trial Court was against the very sprit of section 24 of N.‑W.F.P. Pre‑emption Act, 1987. The first order, was passed within thirty days and the proviso to subsection (1) of section 24 of the Act, is specific that the Court shall require the plaintiff to deposit in such Court 1 /3rd of the sale price of the property in cash . . . . . . . .and that such period shall not extend beyond thirty days of the filing of the suit. The impugned order modifying or reviewing the first order is clearly beyond thirty days which is hit by the first proviso to subsection (1) of section 24 of the Act. The first order is supported by the order of the Revenue Officer on the Mutation No.5321 attested on 29‑1‑1990 which contained the sale consideration as Rs.70,000 and not 7 lacs. The deposit of the sale consideration under section 24 of the Act is a tentative amount which is subject to final determination of the exact price under section 28 of the Act after recording evidence of both the parties. In other words, it is not final or last word of the Court. As far as the judgment of the Hon'ble Supreme Court reported in 1992 SCMR 746 is concerned, it is applicable to the present case on all fours. The Hon'ble Chief Justice has laid down in the above authority as follows:‑‑
"With respect the distinction made by the High Court for extension of time‑‑one at the behest of the plaintiff and the other when the Court on its own, considers appropriate, is not supported by the language of the law. The first proviso bars the extension of time beyond thirty days by a positive command in the negative. Therefore, if the period cannot be extended on the asking of the plaintiff it cannot be extended even suo motu. The question of act of God as a reason for extension may have to be examined in another appropriate case:'
6. it is further laid down in the said authority as follows:‑‑
"In the light of the foregoing discussion no amount could be ordered to be deposited beyond 30 days. Hence the direction for further deposit in this case was not lawful. Accordingly, the said order as well as the impugned judgments upholding the same are set aside. The Trial Court shall now proceed beyond the stage of the deposit of amount under section 24:"
7: As discussed above, in the impugned mutation the sum of Rs.70,000 was mentioned as sale consideration of the suit land, therefore, the plaintiff/petitioner was obliged to show that amount as sale consideration in the plaint. He cannot be said to have deviated from the record then existed. I, therefore, do not see as to how can he be held responsible for the mistake rectified thereafter. Moreover, whatever be the value of the suit land, it is to be determined by the Trial Court in the light of the evidence of the parties.
8. The result is that setting aside the impugned orders, I accept this revision petition with direction to the Trial Court to proceed with the trial of the suit and dispose it of on merit and according to law. No order as to costs.
AA./1392/P Revision accepted.