Haji JANAT GUL KHAN vs Haii FAQIR MUHAMMAD KHAN and 4 others

1. ' WALI MUHAMMAD KHAN, J.--Haji Janat Gul Khan, appellant in the instant two Appeals Nos.231-P/90 and 232-P/90, through leave of the Court, has called in question the order dated 4-6-1989 passed by a learned Division Bench of the Peshawar High Court dismissing his Writ Petition No,207 of 1989 and R.A. No,28 of 1989 and maintaining the order of District Judge dated 5-3-1989. The leave granting order is as follows:-- "The learned counsel appearing on behalf of the petitioner in both the matters while reading section 23, subsection (4) of the N.-W.F.P Preemption Act, 1987 contends that the section itself is clear that the Court has the discretion to extend further time and to allow the plaintiff to make the deposit and thus according to him the discretion so exercised by the trial Court was in accordance with the law.

2. ' After hearing the learned counsel we think his contention relates to the interpretation of a relevant section of the N.-W.F.P.Pre-emption Act to the subject matter involved in these petitions, which needs determination of this Court. Leave to appeal is, accordingly, granted in both these petitions."

3. ' The facts of the case, briefly stated, are that the defendants/respondents purchased, the suit land vide Mutation No,3228 attested on 19-3-1987 which gave rise to a pre-emption suit by the plaintiff/appellant. The trial Court ordered the plaintiff to deposit 1/3 of the consideration amounting to Rs,80,000 in cash and to furnish bank guarantee for the remaining amount before 15-10-1987. On the application of the plaintiff/pre-emptor the time fixed was once extended to 11-11- 1987 and further extended to 21-11-1987. The plaintiff/appellant complied with the order during the extended period.The defendants/respondents moved an application before the trial Court that the plaintiff/appellant was required to deposit the amount in cash as well as bank guarantee within one month of the order as per the mandatory provision of section 24 of the N.-W.F.P. Preemption Act, 1987 and that the orders of the Court twice extending the period were in violation of the mandatory provision of law, in excess of jurisdiction and ineffective on the rights of the vendees/defendants. The learned trial Court vide its order dated 2-7-1988 did not accede to the prayer of the defendants/respondents and dismissed the application, observing that it was empowered under section 148, C.P.C. To extend the time. Aggrieved therefrom the defendants/respondents preferred appeal/revision before the learned District Judge, who treating it as revision accepted the same, set aside the orders of the trial Court and dismissed the suit of the plaintiff/appellant. R.F.A. No,28/89 and Writ Petition No,207/89 were filed against the said order which were dismissed through the impugned order.

4. ' We have heard Mian Shaukat Hussain, Advocate, for the appellant; Mian Younus Shah, Senior Advocate, for respondents 1 to 3; and have perused the record of the case.

5. ' Section 24 of the N.-W.F.P. Pre-emption Act, 1987 provides for the deposit of sale price of the property which is reproduced as under for convenience sake:-- "24. Plaintiff to deposit sale price of the property.--(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: ' 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 corresponding provision contained in the repealed N.-W.F.P. Preemption Act in section 23 has been substantially departed from. Under the old law the Court had the discretion to direct the deposit of any amount viz., the entire consideration mentioned in the sale-deed or sale mutation, or part thereof, or partly in cash and partly security, or security for entire. There was no restriction of time for deposit of amount or security and the Court had also the power to extend the time from time to time In the event of default the plaint had to be rejected with the result that if period of limitation permitted, fresh suit could also be filed as the matter did not operate as res judicata. In view of the change in the pre-emption law bringing it in line with the Islamic Law of Pre-emption, provision for Talb was made, the essence whereof is that immediately on coming to know of sale transaction, the prospective preemptors have to declare their intention to pre-empt the transaction by making Talb-i-Muwathibat immediately to be followed by Talb-i-Ishad in order to create evidence regarding their intention to pre-empt the transaction within a maximum period of fifteen days. No doubt, the period of one year has been prescribed in the statute for Talb-i- Khusumat i,e, filing of suit for pre-emption but once the suit is filed, it is mandatory for the pre- emptor to deposit one-third of the amount mentioned in the sale-deed in cash and two-third through bank guarantee or the entire amount in cash and that too, within thirty days of the filing of the suit and in the event of non-compliance thereof, the suit shall stand dismissed, which obviously clinches the matter against the pre-emptor and debars him from filing a fresh suit though he may still have time for filing the same, as there is only one Talb-i-Khusumat The case in hand was filed on 30-7-1987 after the promulgation of N.-W.F.P. Pre-emption Act, 1987 when the previous Act had already stood repealed and, as such, the learned trial Judge proceeded with the same under the new Act and directed the preemptor to deposit one-third of the sale consideration in cash and two-third in bank guarantee on or before 15-10-1987, vide his order dated 2-9-1987, as in the intervening period the Court remained closed for summer vacation. Even this time was beyond the statutory period of thirty days but the appellant/preemptor did not avail of it and applied for extension of time on 12-10-1987 and for further extension on 11-11-1987. The Court did allow time up to 21-11-1987 and the pre-emptor made the deposit during the extended time, but the question is whether the Court had the power and jurisdiction to extend time statutorily fixed or not. In view of the mandatory provision contained in section 24 of the Act ibid obviously it could not and the orders for extension of time for the deposit of money are coram non judice and without lawful authority.

7. ' The learned counsel for the appelllant cited the authority in case Mst. Sameen v. Afghanullah (PLD 1990 Peshawar 110) and submitted that extension once granted had conferred valuable rights on the pre-emptor of which he could not be legally deprived. We have gone through the cited judgment and find it distinguishable, inasmuch as, the statutory time allowed for the deposit of amount and the bank guarantee in the cited case was before 4-3-1989. As the preceding day i,e, 3-3-1989 happened to be Friday, the plaintiff/petitioner in that case submitted an application on 4-3-1989 seeking permission for the deposit of the entire sale consideration of Rs,40,000 in cash as the bank could not provide her bank guarantee and also for extension of time by 4 days and the Court allowed extension for 4 days. It is also clear from the perusal of the judgment that the petitioner in the cited case was ready with the money as the challan for the deposit of the same was prepared by the Court on the same day viz., 4-3-1989 and before the amount could be tendered in the Treasury the same might have been closed for monetary transaction. The cited ruling, therefore, cannot help the appellant in any way.

8. ' The learned counsel for the appellant, taking advantage of observation in the cited judgment that the plaintiff in that case had still time to file a fresh suit and on that score justified the extension of time, appears to be biter, based on the assumption in view of the orders of the lower forums, that the plaint has been rejected and as such the same cannot be followed being violative of the mandatory statutory provision of section 24 of the N.-W.F.P Pre-emption Act, 1987 prohibiting extension of time and we overrule the same to that extent.

9. Section 13 of the Act ibid governs the whole scheme of the new preemption law brought in conformity with the Injunctions of Islam and Sunnah in obedience to the judgment of this Court in Said Kamal shah's case. According to it, the right of pre-emption is extinguished if the pre-emptor does not make the three Talbs i,e, Talb-i-Muwathibat, Talb-i-lshad and Talb-i-Khusumat, the latter Talb being the enforcement of the right of pre-emption through Court. A bare reading thereof makes it amply clear that the pre-emptor can make Talbi-Khusumat i,e, enforcement of the right of pre-emption, only once and in the absence of any definite provision allowing a second Talb-i- Khusumat if the limitation prescribed under section 31 of the Act permits, this right cannot he imported into it. The substitution of the rejection of the plaint in the repealed Act through the dismissal of the suit in the new Act is suggestive of the fact that the failure to deposit the amount of one-third in cash and two-third as bank guarantee or the whole amount in cash entails dismissal of the suit and has the effect of barring a fresh suit. Reading the two provisions in conjunction, there is no doubt left that the dismissal of the suit under section 24 of the Act ibid finally determines the rights of the parties albeit, subject to the decision of the appeal or revision.

10. ' The controversy regarding the extension for the deposit of preemption money came up for consideration before this Court in case Awal Noor v. District Judge, Karak (1992 SCM R 746) and it was held 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 ptoviso 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."

11. ' Resultantly, there is no legal error in the impugned judgment of the High Court and the instant Appeals Nos231-P and 232-P of 1990 are accordingly dismissed. There is no order as to costs.