GUL USMAN and others vs Mst. AHMERO and others
The petitioners sought leave to appeal against a judgment of the Peshawar High Court dismissing their revision petition under section 115 of the Code of Civil Procedure, 1908. The underlying dispute arose from a pre-emption suit where the High Court had decreed the suit subject to the deposit of Rs.4,000 as pre-emption money within one month. The petitioners deposited Rs.3,999.70, falling short by thirty paisa's. Consequently, the respondents filed a separate suit for possession by partition, arguing that the pre-emption suit stood dismissed due to the short deposit. The trial court, appellate court, and the High Court all ruled in favor of the respondents, relying on precedent holding that a shortage in pre-emption money results in the dismissal of the suit. Before the Supreme Court, the petitioners contended that the shortage was unintentional and that the court was competent to extend the time, highlighting a conflict of authority between the Lahore and Peshawar High Courts. The Supreme Court granted leave to appeal to consider whether a nominal shortage of thirty paisa's justified dismissing the pre-emption suit and whether the separate suit was barred under section 47 of the Code of Civil Procedure, 1908.
- Whether the shortage of deposit of merely thirty paisa's in pre-emption money justified the dismissal of the suit for pre-emption?
- Whether the suit brought by the respondents against the petitioners was competent in view of the bar contained in section 47 of the Code of Civil Procedure, 1908?
- Section 115, Code of Civil Procedure 1908
- Section 47, Code of Civil Procedure 1908
ORDER
' MUHAMMAD BASHIR KHAN JEHANGIRI, J.-The petitioners seek leave to appeal from the judgment dated 21-3-1995 of a learned Single Judge of the Pehsawar High Court, dismissing the former's revision petition under section 115 of the Code of Civil Procedure, 1908.
2. The background of these proceedings is that Faqir Gul, the predecessor in interest of the respondents, purchased 1 canal and 10 Marla's of land in dispute by virtue of Mutation No, 2136 sanctioned on 26-6-1968. Gull Usma n and others, petitioners, pre-empted this sale transaction successfully up to the High Court. A learned Judge of Peshawar High Court, while decreeing the preemption suit of the respondents on 3-2-1982 ordered the deposit of a sum of Rs,4000 as pre- emption money within one month. The petitioners, it appears, deposited a sum of Rs,3,999.70 and, therefore, it fell short by thirty paisa's. The vendees-respondents got the knowledge of this shortage when they applied for the release of the pre-emption money. In consequence, they brought a suit on 14-4-1990 against Gull Usman and others, petitioners, for possession by partition of the aforesaid land on the averments that as the petitioners had deposited thirty paisa's short of the pre-emption money ordered by the High Court, the suit for pre-emption stood dismissed; that the respondents had remained the actual owners of the suit land and; that they had been wrongly dispossessed therefrom. The petitioners contested the suit.
3. The main contest centered round the deposit of the pre-emption money. The question reduced into issue No,7 was: "whether the defendants have complied with the orders of High Court for the deposit of pre-emption amount". Another important issue raised between the parties was: "whether the suit was competent in its present form".
4. The learned trial Judge took up issues Nos.2, 3 and 5 and held that the petitioners have produced nothing in support of these issues and decided them against the petitioners. On crucial issue No,7, the learned trial Judge held that owing to the shortage of deposit of thirty paisa's of the pre- emption money, the suit for pre-emption stood dismissed. Resultantly, the suit for possession by partition brought by the respondents was decreed against the petitioners. The appeal filed by the petitioners before the learned Additional District Judge-I, Peshawar, was also dismissed and so was the fate of the revision petition. A learned Judge in Chamber of the High Court placed reliance on the authority of Muzaffar Khan v. Ali Khan and others (1989 CLC 2342) wherein a learned Single Judge in identical circumstances has held that shortage of deposit of four paisa's of the pre- emption money justified the orders of the Courts below in dismissing the suit for pre-emption.
5. Mian Younas Shah, learned counsel for the petitioners, referred to the precedent of Khan Shah Muhammad Khan v. Allah Diwaya and others (PLD 1961 (W.P.) Lahore 743) and contended that though the petitioners did not fully comply with the terms of the decree of the High Court in the pre-emption suit inasmuch as the amount deposited by them fell short by thirty paisa's, the High Court was competent to extend the time for deposit of the money, The learned counsel further contended that failure on the part of the petitioners to deposit the full amount, of the pre-emption money was neither the result of negligence on their part nor was this fault intentional and therefore, it would have been justified the High court in granting further time for deposit of the money
6. There is thus conflict on the main proposition between Lahore High Court in Khan Shah Muhammad's case (PLD 1961 Lahore 743) and Peshawar High Court in Muzzaffar Khan's case (1989 CLC 2342).
7. .Leave to appeal is, therefore, granted to consider: (i) whether the shortage of deposit of merely thirty paisa's in pre-emption money justified the dismissal of the suit for pre-emption; and (ii) whether on the strength of the authority of this Court in Allah Bakhsh v. Umar and another (1994 SCMR 1129) the suit brought by the respondents against the petitioners was competent in view of the bar contained in section 47 of the Civil Procedure Code. .