SIRAJ DIN and 3 others vs SARDAR KHAN and 2 others

1. ' MUHAMMAD AFZAL LONE, J.---The relevant facts, as stated in the leave grant order are that two pre-emption suits brought by the appellants on the ground that the land sued for comprised in their tenancy were decreed by the Civil Court, in pursuance whereof they also deposited the purchase money in the Court. However, on appeal by the vendee-respondent, the District Judge set aside these decrees and transferred the suits to the Assistant Commissioner/Collector vested with the exclusive jurisdiction to hear such cases. The parties litigated under that jurisdiction and it was on 25-11-1980 that the appellants succeeded in second round, in appeal, before the Additional Commissioner, and were directed to deposit the purchase money in the Court within 15 days.

2. Instead of complying within this direction, the appellants moved an application for adjustment against the decrees of the Revenue Court, of the purchase amount already deposited by them in the Civil Court. The Additional Commissioner declined this request, but enlarged the time for payment of the purchase money into the Court. The validity of extension of time was assailed by the vendee in revision before the Member; Board of Revenue, who took the view that after passing the decree no power vested in the Additional Commissioner to enlarge the time and that the appellants having failed to deposit purchase money within the time limit orginally fixed, stood denuded of their right to pre-empt the land. Thereafter, the appellants invoked the Constitutional jurisdiction of the High Court, but both the writ petitions were dismissed on the ground that according to the law laid down by this Court, no decree could be passed in a tenant's suit for pre- emption. The High Court's judgment dated 10-10-1990 is under challenge before us in this appeal by leave to appeal.

2. Leave to appeal was granted' to examine the appellants' contention that under para. 25(8) of the Land Reforms Regultion, 1972, the Collector and other higher forums in the hierarchy of the Revenue Department dealing with the tenant's suit are deemed to be Civil Courts and, therefore, the appellants could justifiably claim adjustment of the amount lying deposited in the Civil Court.

3. It will be seen that under sub-para. 5 of para. 25 of the Land Reforms Regulation incorporated therein by Ordinance )0C of 1976, exclusive jurisdiction is conferred on the Collector to decide suit in which right of preemption is claimed on the basis of tenancy. Sub-para. (8) of para. 25 provides:-- "(8) For the purposes of this paragraph a Collector, a Commissioner and the Board of Revenue shall be deemed to be a Civil Court and shall have all powers of a Civil Court under any law for the time being in force and the final order passed in such suits be deemed to be a decree of a Civil Court and shall be executed as such."

3. The expression "deem" is commonly used to create legal fiction and introduce an artificial conception. Speaking generally when legislature commands that a language is to be deemed to be something, obvious conclusion is that in reality it is not that thing, what the legislature requires it to be treated. It is settled rule that the Court is entitled to ascertain the object for which the legal fiction is created and confined to the purposes for which it is meant. It appears to us that the object of the deeming clause is circumscribed by sub-para. 8 itself, which is to the effect that while entertaining and deciding suits enforcing the right of pre-emption, founded on tenancy, the Collector, the Commissioner and Board of Revenue "shall have all the powers of a Civil Court under any law for the time being in force" but it can well be said that this power could have been conferred on these forums even without importing the concept of legal fiction. One object of user of words "shall be deemed to be a Civil Court" preceding the above-quoted expression seemingly is to put beyond reasonable doubt the availability of such power to the forums entrusted with the hearing of the suits under section 25 of the Regulation. Further in the absence of these words, conceivably such forums would have remained merely quasi-judicial tribunals guided by the provisions of C.P.C. In resolving the disputes brought before them. But, on account of the deeming clause they are clothed with the status of a Civil Court. This effect of combined reading of the aforesaid two "expressions" is that for pronouncement upon the rights of the parties, the Collector and other functionaries have to imperatively investigate and determine the fact objectively and apply law thereto like a Civil Court, and are bound by the principles and procedure laid down in Civil Procedure Code. The latter part of sub-para. (8) demonstracts that final orders passed in such suits are required to be treated as decree of the Civil Court and executed as such; meaning thereby that in executing final order, it is not open to the Collector to follow the procedure other than the one provided by the Civil Procedure Code, and further he can exercise the powers of the Executing Court under the Code, including the powers to determine the question relating to execution, discharge and satisfaction of the decree.

4. In a pre-emption suit, under Order XX, Rule 14, C.P.C. The decree must specify the date on or before which the decree-holder has to pay the purchase money together with costs, if any, into the Court.

5. The decree should also embody a direction that if the purchase money and the costs are not so deposited, the suit shall stand dismissed. The question requiring determination is whether the fictional character of the Collector, as a Civil Court, and of the final order in the suit before him as a decree of the Civil Court, can be enlarged to the extent that the amount already deposited by the appellant in the Civil Court be considered as a deposit for the purpose of the decree in his favour by the Collector. It is difficult to give an answer in the affirmative. Normally the deposit made in one Court on the assignment of the suit to another Civil Court of co-ordinate jurisdiction may be treated as a valid deposit and appropriated for satisfaction of the decree passed by the latter Court; but this rule cannot be extended to the appellant's case, the reason being that opening words of sub-clause (8) "for the purpose of this paragraph" sufficiently indicate limitation on the statutory fiction that it is to be confined to para. 25 only. The Civil Court envisaged by sub-para. (8) cannot be considered as a Civil Court created by Civil Courts Ordinance, 1962, as referred to in the Civil Procedure Code. Furthermore, the decree-holder would be exposed to lot of inconvenience in withdrawing the amount from the Civil Court, in pursuance of the decree of the Collector. The appellant therefore cannot succeed on the point canvassed by him in the leave grant order.

6. However, from the perusal of the record we find that the final order/decree by the Collector does not conform to the requirements of Order XX, Rule 14, inasmuch as it does not embody any direction that in case of appellant's failure to deposit the purchase money into the Court within the stipulated time, his suit would stand dismissed. As held by this Court in Fateh Khan v. Boze Mir (PLD 1991 SC 782). The provisions of Order XX, Rule 14(1), are of penal nature; strict comliance therewith is, therefore, necessary to impose on the appellant the penalty of dismissal of his suit. His suit, therefore, could not have been dismissed due to non-payment of the purchase money into the Court.

7. ' To do complete justice between the parties, these appeals are accepted; the impugned judgment is set aside and the case remanded to the Collector to pass a fresh decree in conformity with law.

8. The parties are left to bear their own costs.