AWAL NOOR vs DISTRICT JUDGE, KARAK and 8 others

1. ' MUHAMMAD AFZAL ZULLAH, C.J.---This appeal through leave of the Court has arisen out of a case of pre-emption.

2. ' The appellant filed a suit for pre-emption under the new law; namely, N.-W.F.P. Pre-emption Act, 1987 on 10-10-1987. On the same day the learned trial Court with the assistance rendered by the appellant fixed the value of the property at a probable amount and directed the appellant to deposit Rs,5,000 before 24-10-1987. According to the appellant it was not a case of sale being incorporated in a sale-deed or in a mutation, therefore, no actual price data being available with him he gave before the trial Court only the estimated value of the property. Later on the respondents/defendants appeared, filed written statement and claimed the value of the property to be Rs,2,25,000 as the same being the sale consideration. The trial Court by a subsequent order dated 19-4-1988 directed the appellant to make deposit of the additional amount of Rs,70,000 and to furnish bank guarantee regarding the remaining amount/the sale price alleged and asserted from the respondents' side. This was alleged to be on the basis of a writing, as stated by the learned counsel, which purported to be a Tamassak.

3. ' The appellant challenged this second direction for the deposit, in revision before the District Court and after its dismissal, then in a Writ Petition before the High Court but without any success.

4. Thereupon leave was granted for the examination of the contention that "once the trial Court has passed an order under section 24 of the N.-W.F.P. Pre-emption Act, 1987 for the deposit of pre- emption amount, which was duly complied with it could not pass any other order after 30 days of the institution of suit".

5. ' Section 24 reads as follows:- "24. Plaintiff to deposit sale price of the property.- -(1) In every suit for preemption 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: ' Provided that such period shall not extend beyond thirty days of the filing of the suit: ' Provided further that if no sale price is mentioned in the sale-deed or in the mutation, the Court shall require the deposit of one-third of the probable value of the property, and a bank guarantee for the remaining two-third of such probable value: ' Provided also that the plaintiff may, in lieu of bank guarantee, deposit the required amount in cash.

(2) Where the plaintiff fails to deposit one-third of the sale price or the probable value of the property and the required bank guarantee under subsection (1) within the period fixed by the Court, his suit shall be dismissed.

(3) Where the plaintiff withdraws the sum deposited by him or the bank guarantee furnished by him under subsection (1), his suit shall be dismissed.

(4) Every sum deposited under subsection (1) shall be available for the discharge of costs.

(5) The probable value fixed under subsection (1) shall not affect the final determination of the price payable by the pre-emptor."

6. The High Court dealt with and answered the legal point raised before it as follows:- "The sole point agitated by the learned counsel for the petitioner is that under section 24 of the N.- W.F.P. Pre-emption Act, 1987, the deposit order with regard to the sale price of the property could not be passed beyond thirty days of the filing of the suit. According to him admittedly the second order was passed beyond thirty days. A bare reading of first proviso attached to section 24 shows that the period for deposit of sale price. Shall not be extended at the behest of the plaintiff. It does not bar the Court to pass in appropriate cases a proper order for deposit of sale price."

7. 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.

8. The second proviso also is restrictive in nature. Those cases in which the sale price is neither in the sale-deed nor in the mutation and also in those cases as in the present one in which there was at the relevant time neither a sale-deed nor a mutation, the Court has to rely on its own judgment after an enquiry of preliminary/summary nature seeking material from the plaintiff and if per chance the defendant has appeared from him also. The determination of the value of the property in these circumstances, of course, has to be probable. Thus the intention of the newly-enacted law in this behalf is clear that the amount has to be deposited upto 30th day of the filing of the suit and not beyond that and the amount has to be determined through a process of approximation resulting in the probable value if there is nothing mentioned in the sale deed or the mutation.

9. 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.

10. ' It may be stated that according to one party the suit has already been dismissed. If it is due to the non-deposit of the additional amount, the same shall be restored to its original number and tried as directed above. If the disposal is due to other causes, law shall have its own course notwithstanding the above order and direction. There shall be no order as to costs.