Usman Khan Vs Jandool Khan

PESHAWAR HIGH COURT, PESHAWAR

(Revisional Jurisdiction) C.R.No. 1538‐P/2025.

Usman Khan.

Vs .

Jandool Khan.

Petitioner(s) by: Mr. Jehanzeb Khan Khalil, Advocate. Respondent(s) by: Mr. Rasheed Ahmed, Advocate. Research Assistance: Mazhar Ali Khan, Research Officer. Date of hearing: 11.09.2026

JUDGMENT

MUHAMMAD FAHEEM WALI, J.‐

1.The only question that arises for determination in this Civil Revision, filed by the plaintiff/petitioner, is whether, for the purposes of Section 24 of the Khyber Pakhtunkhwa Pre‐ emption Act, 1987 (Act OF 1987), the obligation of a pre‐emptor to deposit one‐third of the sale consideration, of the suit property arises automatically upon institution of the suit and independently of any order of the Court, or whether it remains contingent upon the Court itself fixing the period within which such deposit is to be made; and, correspondingly, whether the failure of a pre‐emptor to make such deposit, in a case where the Court has at no stage passed any order calling upon him to do so, can validly found the rejection of the plaint and dismissal

of the suit.

2.Briefly stated, the petitioner/plaintiff, Usman Khan, instituted a suit for possession through exercise of a right of pre‐ emption, coupled with permanent and mandatory injunction, against the respondent/defendant, Jandool Khan, before the learned Civil Judge‐III, Mohmand (trial Court), on 26.12.2023, asserting a superior right of pre‐emption over the suit property, said to have been sold by the respondent for a consideration of Rs.15,00,000/‐. Notices were issued to the respondent, and upon his non‐appearance he was proceeded against ex parte;

the ex parte proceedings were, however, set aside vide order dated 25.07.2024, whereafter the respondent filed his written statement, together with an application under Order VII Rule 11, C.P.C., on 28.11.2024, seeking rejection of the plaint on the ground, inter alia, that the petitioner had failed to deposit one‐ third of the sale consideration as required under Section 24 of the Act of 1987. The petitioner filed his reply to the said application. It is not in dispute, and stands borne out from the record, that at no stage between the institution of the suit on 26.12.2023 and the disposal of the application under Order VII Rule 11, C.P.C., a period exceeding thirteen months, did the learned trial Court pass any order calling upon the petitioner to deposit any amount, or fixing any period therefor.

3.Vide order dated 31.01.2025, the learned trial Court accepted the application under Order VII Rule 11, C.P.C. and dismissed the suit of the petitioner, holding, in substance, that the requirement of depositing one‐third of the sale consideration under Section 24 of the Act is mandatory and stands attracted independently of any order of the Court, that the omission of the trial Court to pass a specific order in this behalf did not absolve the petitioner of his own statutory obligation, and that non‐ deposit for over a year rendered the suit incompetent ab initio.

Feeling aggrieved, the petitioner preferred Civil Appeal No.14/13 of 2025 before the learned District Judge, Mohmand (appellate Court), which too came to be dismissed vide judgment and decree dated 16.09.2025, the learned appellate Court having framed and answered, in the negative, the point as to whether the omission of the trial Court to pass an explicit order under Section 24 excuses the petitioner’s failure to deposit, and whether such omission could be rectified at the appellate stage;

the petitioner’s application seeking permission to deposit the amount at the appellate stage was also declined. Feeling aggrieved of the concurrent findings of both the Courts below, the petitioner has approached this Court in its revisional jurisdiction under Section 115, C.P.C.

4.In order to answer the question formulated above, it

is necessary first to examine the text and scheme of Section 24 of the Act of 1987, which, in so far as relevant, reads as under:

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 within such period as the Court may fix;

Provided 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.

(2)Where the plaintiff fails to deposit one‐third of the sale price or the probable value of the property within the period fixed by the Court, his suit shall be dismissed.

(3)Where the plaintiff withdraws the sum deposited under‐sub‐section (1), his suit shall be dismissed.

(4)Every sum deposited under sub‐section(l) shall be available for the discharge of costs.

(5)The probable value fixed under sub‐section (1) shall not affect the final determination of the price payable by the pre‐emptor.

5.A plain reading of the provision reproduced above shows that the obligation cast upon the pre‐emptor to deposit one‐third of the sale consideration, or of the probable value, of the suit property is, in terms of sub‐section (1), an obligation which the Court is required to exact “the Court shall require the plaintiff to deposit” within “such period as the Court may fix”.

The penal consequence of dismissal, provided in sub‐section (2), is in turn expressly conditioned upon failure of the plaintiff “to deposit... within the period fixed by the Court”. The language of the provision, both in sub‐section (1) and sub‐section (2),

consistently ties the obligation, and the sanction for its breach, to a period that is to be “fixed by the Court”; it nowhere provides that such period shall, in the absence of an order of the Court, be deemed to run from the date of institution of the suit, nor does it prescribe any outer statutory limit, such as thirty days, within which the deposit must in any event be made irrespective of whether the Court has passed any order in that behalf.

6.This is a matter of some significance, because it is the express first proviso to Section 24(1) of the Punjab Pre‐emption Act, 1991, a provision worded materially differently from, and considerably more elaborate than, its Khyber Pakhtunkhwa counterpart which provides that “such period shall not extend beyond thirty days of the filing of the suit”. It is upon an interpretation of that proviso, and of the analogous provisions of the Punjab Act, that the body of Supreme Court jurisprudence relied upon by both the Courts below namely Hasnain Nawaz Khan v. Ghulam Akbar (PLD 2013 SC 489) and Malik Tariq Mahmood v. Ghulam Ahmed (PLD 2017 SC 674) proceeds. No corresponding proviso finds place in Section 24(1) of the Khyber Pakhtunkhwa Act, 1987, a distinction that was in fact specifically drawn to the attention of the Hon’ble Supreme Court in Hasnain Nawaz Khan (supra) itself, where one of the learned Amicus Curiae submitted that the Khyber Pakhtunkhwa Act, though

“almost an analogous provision”, has “some distinctive features” as against the Punjab Act, and that reliance on judgments rendered under one Act to construe the other would be misplaced.

7.Reading sub‐sections (1) and (2) of Section 24 of the Khyber Pakhtunkhwa Act harmoniously, and giving the words “the period fixed by the Court” in sub‐section (2) the same meaning they bear in sub‐section (1), it follows that the sanction of dismissal is attracted only where a period has in fact been fixed by the Court and the plaintiff has failed to deposit within that period. Where, as in the present case, no such period was ever fixed by the trial Court at any stage of the proceedings, the precondition to the operation of sub‐section (2) was never satisfied, and the sanction of dismissal could not, consistently with the plain words of the statute, be invoked against the petitioner for a default that, on the record, was never his to begin with. In reaching this conclusion, I am fortified by this Court’s judgments in Sher Zada v. Shaukat Ali (2019 MLD 2029);

Bahramand v. Jamal‐Ud‐Din (2016 MLD 383) & Miraj‐Ud‐Din v.

Muhammad Shoaib (2012 MLD 1371).

8.This construction is fortified by well‐settled canons governing the interpretation of a provision that visits a litigant

with the drastic and final consequence of dismissal of his suit for default of a particular act. Where sub‐section (2) makes that consequence turn upon default “within the period fixed by the Court”, the requirement that the Court itself fix such a period is properly read as a condition precedent to the operation of the penal consequence, and not as a mere descriptive reference to a period running automatically by force of the statute alone. A provision working a forfeiture of a substantive right is to be strictly, and not liberally, construed against the party in whose favour the forfeiture operates, and a court ought not extend the reach of sub‐section (2) so as to penalise a plaintiff for the non‐ fixing of a period which, on the words of the statute, only the Court is empowered and required to fix. This reading is supported by a further, closely related canon: where the Legislature, in a materially similar enactment governing the same subject matter, the Punjab Pre‐emption Act, 1991 chose expressly to superimpose an outer statutory limit of thirty days operating independently of any order of the Court, and the Legislature of Khyber Pakhtunkhwa, while enacting an analogous provision, did not adopt that language, the omission must be presumed deliberate. It is not for a court, on the principle that a casus omissus cannot be supplied by judicial construction, to read into Section 24(1) of the Khyber Pakhtunkhwa Act a default period

which the Legislature has, on a plain comparison of the two texts, chosen not to enact. Nor can such a reading be justified merely because a similarly worded provision under a different statute has been so construed by the Superior Courts. Since a court, before transplanting the ratio of a judgment rendered on one statute onto another, must first satisfy itself that the two texts are, in the relevant respect, in pari materia; where, as here, the two provisions diverge in a manner going to the very root of the controversy, therefore, such transplantation is not permissible.

9.Even if the ratio of Hasnain Nawaz Khan (supra) were to be treated as of persuasive application to the Khyber Pakhtunkhwa Act, a proposition to which, for the reasons already stated, this Court is not inclined to subscribe without qualification that judgment is, in any event, distinguishable on facts. In Hasnain Nawaz Khan, the trial Court had, in fact, passed an order fixing the probable value of the suit property and directing deposit of one‐third thereof within the statutory period. The controversy before the Hon’ble Supreme Court arose because the pre‐emptor, instead of complying with that order, chose to challenge it in revision, and the statutory period of thirty days was consumed in the process without the deposit having been made. It was in that context that it was held that the pre‐emptor could not obtain a fresh period merely because

he had chosen to litigate the correctness of the value fixed. The observation in paragraph 7 of that judgment, that even where the Court, on account of omission or lapse, has failed to specify the time, a deemed period of thirty days shall be taken to have been allowed was made while explaining the outer limit placed by the first proviso to Section 24(1) of the Punjab Act on the Court’s own discretion, and was not addressed to a case in which the trial Court had, for the entire life of the suit, never passed any order under Section 24 at all. The present case, where no order was passed by the learned trial Court at any stage between the institution of the suit on 26.12.2023 and the disposal of the application under Order VII Rule 11, C.P.C. on 31.01.2025, stands on a materially different footing.

10.The judgment in Malik Tariq Mahmood (supra), also relied upon by both the Courts below, in fact addresses the very situation that arises in the present case, and does so in terms that do not support the view taken by the Courts below. It was observed therein that “since the required deposit is subject to the order of the Court... in cases where Court omits to pass order or the matter is not placed in Court within the time frame... the pre‐emptor cannot be blamed and penalized for such non‐ deposit”. The default in such a case being condoned upon the principle actus curiae neminem gravabit, that an act, or

omission, of the Court shall prejudice no man, subject only to the qualification that, upon the Court realizing its omission, a further reasonable period, and not a fresh period of thirty days, should be fixed for compliance, beyond which no further extension is permissible. Neither of the Courts below, though each cited Malik Tariq Mahmood for the proposition that the statutory period cannot be extended, adverted to this part of the judgment, which was directly attracted to the facts before them and which, if applied, would have led to the conclusion that the petitioner could not be penalized for the trial Court’s own omission, spanning the entire life of the suit, to pass any order under Section 24.

11.For the foregoing reasons, this Court is of the considered view that the learned Courts below fell in error, both on a true construction of Section 24 of the Khyber Pakhtunkhwa Pre‐emption Act, 1987, and in the application of the case‐law relied upon by them, in holding that the petitioner’s suit was liable to rejection for non‐deposit of one‐third of the sale consideration in the absence of any order of the trial Court calling upon him to make such deposit. The error goes to the competence of the trial Court to reject the plaint under Order VII Rule 11, C.P.C. on the ground assigned, and is accordingly amenable to correction in the exercise of this Court’s revisional

jurisdiction under Section 115, C.P.C. Consequently, this Civil Revision Petition is ALLOWED. The impugned judgment and decree dated 16.09.2025, passed by the learned appellate Court, and the impugned order dated 31.01.2025, passed by the learned trial Court, are hereby SET ASIDE. The suit is restored to its original number and remanded to the learned trial Court, with a direction that it shall, in the first instance, determine and fix, by a reasoned order, the amount and a reasonable period for deposit of one‐third of the sale consideration, or of the probable value, of the suit property, in terms of Section 24 of the Act, and shall thereafter proceed with and decide the suit in accordance with law, on its own merits, uninfluenced by any observation made hereinabove save as to the interpretation of Section 24.

No order as to costs.

Announced

JUDGE

(Mahar Ali Khan, Research Officer). (SB) Hon’ble Mr. Justice Muhammad Faheem Wali