Hashim Khan through LRs Vs Saad Ullah Khan through LRs

IT]DG SHEET

PESHAWAR HIGH COI]RT. PESHAWAR

.IUDICIAL DEPARTMENT

W.PNo.17 00/2022

Hashim Khan throush I-Rs Vs. Ullah Khan throueh LRs & 02 others.

Date of hearing: 04.07.2025.

Mr..Iehanzeb Khan Muharnmadzai. Advocate. for the petitioners.

Malik Muhanrmad Iqbal. Advocate . for the resoondents (throuqh Video l,inH.

IUDGMENT

MUIIAMMAD NAEEM ANWAR. I: - Hashim Khan, predecessor- in-interest of the petitioners, instituted a suit on 26.07 .2014 seeking a declaration that the transfer of property measuring 0l Kanal l3 Marla out of Khasra No. 3853 measuring 02 Kana.ls I I Marla, situated in the revenue estate of Ghari Muwaz Khan, Tehsil and Disrict Kohat, via Mutation No. 19514 dated 31.03.2014, was in fact a sale transaction. It was asserted that Saad Ullah Khan, the vendee, had purchased the property for consideration of Rs. 100,000/-, but to defeat the plaintiffs right of pre-emption, the transaction was mischaracterized as an exchange, which is contrary to the actual facts and thus warrants rectification. Along with the declaratory relief , the plaintiff also sought a permanent injunction Sth{I\\tS to restrain the vendee lrom interference and construction over the suit properff and further prayed for possession thereof through pre-emption. The plaintiff averred that he received information of the sale on21.07.2014 at 3:00 PM from his son, Khayyam Khan, while present at his residence in Shah Abad Colony, Kohat. He immediately made a formal declaration of his intention to pre-empt the property and subsequently had a notice under Section l3(3) of the Khyber Pakhtunkhwa Pre-emption Act, 1987 ("the Act of 1987") prepared and dispatched via registered post with acknowledgment due (AD) on 23.07.2014. Being a co-sharer and holder of a superior right under the head of appendages, the

plaintiff claimed pref'erential entitlement over the vendee/respondent and thus sought a decree in his f'avour.

2, The responden[ was proceeded against ex parte. Upon completion of the evidence, the leamed Civil .|udge, through ex parte judgment and decree dated 31.10.2019, decreed the suit and directed the respondent to deposit the remaining amount of Rs. 25,80,446.35 within thirty days, failing which the suit would be deemed dismissed. Pursuant to the ex parte decree, thc respondent applicd Ibr attested copies through Application No. 8282 dated 31.10.2019. -I'he ccrtificd copies were prcpared and handed over to him on 09. 12.2019. Thereafter, the respondent filed an application before the learned Civil Judge seeking permission to deposit the remaining pre<mptjon amount under Section 25 of the Khyber Pakhtunkhwa Pre-emption Act, 1987. The application was allowed on 06.01.2020, whereby he was griurted seven days' time to deposit the said amount. This order was challcnged by the petitioner through Civil Revision No. 01 of 2020, which was allowed by the revisional court through the impugned judgnent and order datcd 27.01.2022. Hence, the instant pctition.

3.lrarned counsel for the petitioner/decree-holder contended that the decree dated 31.10.2019 was passed ex parte, whereupon the petitioner applied for attested copies on fhe same day, However, thejudgrnentwas authored, finalized, and consigned to the record room on 09.12.2019, the date on which the attested copies were handed over to the petitioner. Upon receipt of the judgment and decree, the petitioner immediately rnoved an application seeking permission to deposit the decretzrl arnount, which was duly allowcd ll1'the lcrncd trial court, He lurther argued that the specilic dccretal arrlount was not alrnounccd in open court a[ the time of pronouncement of the judgment, and thus the petitioner could not have ascertained the exact figure required for compliance. It rvas only upon receiving the atlested copies that the petitioner came to know that the decree pertained to a sum of Rs. 25,80,446.35/-. Accordingly, the subsequent deposit made by the petitioner in pursuance of the trial court's permission was in full

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conformity with law. He maintained that the learned appellate court in reversing the order of the nial court, exceeded its jurisdiction and acted contrary to the settled principles of law. He p laced reliance on the cases of 'Rahamdal Khan Vs. Ihsan LIIlah & others" (2022CLC210O, "Wali Khan Vs. Waheed Ghani Khan" (2013 MLD 360), "Sherin & 04 othe rs Vs. Fazal Muharnmad & 04 others" (1995 SCMR 584), "AMul Ghani Vs. Ghulam Sanrya.r" (PLD 1977 SC 102), "Iftikhar Bais Vs. Muhamrnd A?arn & others" (1996 SCMR 762), "Fida Hussain Vs. The State & others" (PLD 2002 SC 46), nSaiawal KhanVs. Wali Muhammad& others" (2002 scMR 134), "Iawad MirM & others Vs. Haroon Mirza & others" (PLD 2007 SC 472), "Ghulam Haider & others Vs. Msr Rai Bharri & othen' (PLD 1988 SC 20), "Fateh Khan Vs.

Boze Mir" (PLD 1991 SC 782), "Ghulam HassanVs.JamshedAli & others" (2001 SCMR l00l), "Abdul Qudoos Vs. Commandant Frontier C,onstabularv. Khvber Pakhurnkhwa. Peshawar & another' (2023 SCMR 334), "Abid Ian Vs. Ministrv of Defence throueh Secretarv. Islamabad & others" (2023 SCMR L45I),"U Khan Vs. Imdad Hussain" (1995 MLD 737) , "Muhanrmad lrshad Khan Vs. Muharnmad Tario Bais & 02 others" (2008 cLC 300), "Nazir Ahmad & ther Vs. Abdullah" (1999 SCMR 342), "Rehmat Ali Vs. Nabi Ahmad & 02 others" (2000 YLR 789), "Gh Vs. Muhammad Fiaz (2016 cLC

1547), "Anium Sarwar Bun & another Vs. Additional Disrict Iudse. Guiranwala & 02 others" (2022 YLR 1077) eu:.d "Iiaz Hussain & 03 others Vs. Qaiser Mahmood & 03 others" (2021

YLR 183).

4.Conversely, learned counsel for the respondent/judgment- debtor contended that once the judgment was pronounced, it was incumbent upon the decree'holder to deposit the decretal arnount within the period lixed by the leamed lrial courL Upon pronouncernent of the judgment, the trial court became funchrs officio, and therefbre , neither could any application bc courpetently filed by Hashim Khan (the decree-holder), nor could the trial court lawtully entertain or allow such an applicatiorr. It was lurther argucd that the trial coult lailed to properly appreciatc this legal position,

and the appellatc court rightJy rect.ified this illcgality. He in support of his submission p laccd reliance on dre cases ol'"I ehanzeb Khan Vs. Ian Muhammad" (2009 MLD 837), "Rahamda] Khan Vs. Ihsan Ullah & others" (2022 CLC 21061, "Shuiat Ali Vs Muhammad Riasat& othen" (PLD 2006 SC 140), "WaIiKhanVs. Waheed Gharri Khan" (2013 MLD 360).

5.ArgumenLs heard record perused.

6.The central issue requiring determination is whether the trial court, after pronouncement of the decree and preparation of the.ludgment, lvas empowered to extend the time stipulated therein Ibr dcposit of thc pre-enrption anrount. It is zur admittcd lact that the pre-elnptor's suit was decreed ex pa.rte on 31.10.2019, with the trial court directing the pre-emptor to deposit the remaining amount of Rs. 25,80,446.35 rvithin thirty days o[ the order. It is further undisputed that the pre-emptor applied lbr attested copies on the same day, i.e., 31.10.2019, and the said copies were delivered to him on 09.12.2019.It is also a matter of record that, upon receipt of the attested copies, the pre-emptor filed an application seeking extension of time for deposit of the remaining pre-emption arnount.

7.The Prc-ernptior.r Act, 1987 prescribcs two distinct timelines. [Jnder Scction 24(l), deposit of' one-t]rird of the prc- emption amount is mandatory and non-compliance entails disrnissal of the suit. However, the present controversy pertains to Section 25 of thc Act, which, as interpreted by the Hon'ble Supreme Courl is directory in nature. There is nothing on record to suggest that thc pre{mptor was informed of the exact amount payable under the decree at the time of pronouncement of judgment. 1'he specific arnount of Rs. 25,80,446.35 became known to the decree-holder only upon receipt of the attested copies on 09.12.2019, pursuantto application No. 8282 dated 3l'10.2019, In tlre ca-se ol' Rahrntdal Khan v. Ihsan Ullah & othen (2022 CLC 2106), aI'ter consi<lcring various precedents including 2013 MLD 360, 1999 SCMR,?42, t99t SCMR 2149, 1986 SCMR 849, PLD 2006 SC 140,and 2005 SCMR 1664, this Court held that trial courts <lrdinarily do not issue a short wriuen order at the time of

pronouncement that specilies the exact pre-emption amount and related directions. Consequently, the Registrar o[ this Court was directed to circulate a copy of the said judgment among the District Judges for further dissemination to CivilJudges of the province.

8.While the decree was announced on 81.10.2019, attested copies were provided only on 09.12.2019. In the absence of a written short order specilying the amount and conditions, the pre- emptor could not reasonably be expected to cornply with the direction prior to receiving the attested copies. lramed counsel lbr the petitioner riglrtly contended that no short ordcr was issued by the trial court. Therefore, in the absence o[ any evidence to the conftary, thc u-ial court appropriately allowed the application for extension. Though section 25 of the Act does provide the period of 30 days llut without any penal consequence for deposit of the remaining amount and has consistently been held to be directory by the Superior Courts.

9.It is also noteworthy that the judgnent-debtor, despite not having contested the suit initia-lly, subsequently challcnged the trial court's order allowing the application, leading to its reversal and dismissal ol'the pre-emptor's suit. 'fhe tlial court's order was based on a proper and larvful interpretation of Section 25 of the Act of 1987, considered in conjunction with the factual timeline regarding the preparation and delivery ol'the judgment and decree. The application rvas liled promptly after receipt o[ attested copies, and the trial court committed no legal error in granting it. The reliance placed by learned counsel for the respondent on precedents was misplaced as those cases are clearly distinguishable on f'acts' The revisional court, in accepting the rcvision petition, acted in excess ol'its.iurisdiction..ludicial orders must be clear and sell'-explanatory; they should not require speculative interpre tation or mental exertion to ascertain their true import' Thus, the llial courCs order, being in confonnity with established legal principles, was lawful, whereas the revisional court's order is untcnable in law.

10.For the reasons stated above, this petition is allowed, The judgment and order ofthe revisional court arc hercby set aside, and

the order of the trial court is restored. There shall be no order as to costs, Annonnced on 04.07 .2025 Released on 22.07 .2025.

JUDGE

ltz;1cr Shzh, SSS (SB) ltoablc Mrtutiu Mulpnad N*.d AM