Abdul Waheed Vs Ikram Ullah Khan & others

Judgment Sheet

IN THE PESI.IAWAR HIGH COURT, BANNU BENCH

JUDICIAL DEPARTMENT

Civil Revision No. 1 0*8f201 9 AbdulWaheed Vs

lkramullah Khan etc.

JUDGMENT

Date of hearing

For petitioner: Mr. Khanzada Khan afiocate.

For rcspondent: Mr. llmar Dafa Kraltak adtrocate. rl*+*:a**t*rt*r*ir***

KAMRAN HAYAT MIANKHEL. J.- This revision petition is directed against the judgrnent and decree dated 12.01-2019, of leamed District Judge, Karak, whereby appeal against the order/ judgment dated 15.11.2018 of leamed Civil Judge-IV, Karak was dismissed and consbquently pre-emption suit of petitioner was dismissed due to non submission of l/3d pre- emption amount.

2.Brief facts of the case leading to file instant petition arc that, the petitioner instituted a suit No' 164ll of 2016 against the respondents by exercising his right of pre- emption, before the leamed Civit Judge-IV, Karak' Vide order sheet dated 15.10.2016, the petitioner was directed to submit ll3'd of pre-emption amount and notice was issued to the respondents. The respondents submitted written statement on 05.10.2018, while on 26.10.2018 the respondents submitted application for rejection of plaint for nondeposit of entire pre-

emBtion arnount. Learned trial Court after hearing arguments on the application vide order/ judgrnent dated 15.11.2018, rejected the plaint. Feeling aggrieved the petitioners filed appeal before the leamed District Judge, Karak, who after hearing arguments of leamed counsel for the parties, vide impugned judgment and decree dared 12.01.2019 dismissed the appeal. Hence, the instant revision petition.

3.Arguments of learned counsel for the parties heard and record perused.

4.Perusal of the record reveals that the petitioner/ plaintiff in his plaint mentioned that the property in dispute was transferred in favour of respondents vide mutation No' 962 datad 21.06.2016, wherein the sale consideration has been entered as Rs.133000/135000/-. Perusal of the impugred mutation No. 962 dated 27.06.2016 depicts that the same warl entered on the basis ofjudgment and decree dated09'12'2015, passed in civil suit No' 148/1, filed on 06.11.2015, passed by learned Civil Judge-III, Karak, on the sale consideration of Rs. 1 33 000.00/ I 3 5000.00, in favour of respondent Ikramullah Khan and Alam Nawaz sons of Naseeb Khan (the respondents herein). After institution of the suit, the leamed trial Court directed the petitioner to deposit 1/3'd of the total pre-emption amount. The petitioner / plaintiff submitted l/3d amount of sale consideration as Rs.433341-.Itwas contention of leamed counsel for the petitioner that substantial portion of the one-

J

third amount has been deposited and due to meager shortfall ln of the one-third amount, that too, bY the petitioner cannot be non-

suited. However, the question before this court is, as to whether the Court has any discretion to proceed with the case in defiance of section 24 of the pre-emption Act' For convenience the relevant section 24 of the Khyber Pakhtuntifiwa Pre-emption Act, 1987, is reproduced as under:

"24. Plaintiff to deposit sale price of the propefi. (1) In every suit for t

the court shall require the to

deposit in such court one-third of the sale price of lhe property in cash within such period as the Courl maY fix:

Provided lhat such period shall not ertend beyond thirty days of the liling of the suit;

if no sale price is Provided further that mentioned in the sale deed or in the mulation, or the price so mentioned appeats to be inflated, the Coutt shall require deposit of one-third of the probable value of the proPefi.

(2)llhere the plaintifffails to make a deposit under subsection (1) withtn the period ftxed by the Court, or withdraws the sum so deposited by him, his suit shall be dhmissed'

(3)Every sum deposited under subsection

(1)shall be available for the discharge of costs.

(4)The Probable value frxcd under subsection (1) shall not alfect the Jinal determination of the price payable by the pre-emptor.u

5.The above provision clearly postulate that the petitioner shall deposit l/3d of sale price of the property within such period as the Court may fix and if no sale price is mentioned in the sale deed or in the mutation, one-third of t}te probable value ofthe propefiy shall be deposited; and ifthe plaintiff failed to deposit one-third of the sale price or probable value the ,rit ,hali b" dismissed. In the instant case in the impugned mutation No.962, dated 27-06.2016, sale price has been mentioned as Rs.133000/135000, hence, the petitioner was under legal obligation to have deposited one- third of the said amount, which comes to Rs.44333.33 I 45000.00, while he deposited Rs.43 33 4/-, which is short of Rs.1000.00/2000.00, hence petitioner/plaintiff failed to deposit the one-third amount of sale consideration within the time prescribed by the court order, which cannot extend beyond thirty days. The consequence is the dismissal of the suit, while no sort of discretion to proceed with the suit in defiance of section 24 of the Khyber Pakhtunkhwa Pre-emption Act, 1987, has been provided' Guidance may be taken from the judgrnent reported in case titled,:flgw

throush LRs. (PLD 2022 Suoreme Cowt3l' relevant Para is reproduced as under:

n5. It appearc that the shoilfall in depositing of the one-third amount of the sale consideration was u mistake because the plaintiff who was prepared, and did deposit, a substantial portion of the one- third amount will not non-suit himself by failing to deposit a small portion thereof. However, the qaestion befote us is, whether the court has discretion to proceed in a mannet not stipulated in section 24 of the Act. The provision is self-contained and cleur. It also mentions the consequences for the plaintiJf in failtng to deposit the one' third amount of sale consideration within the time prescribed by the courts otders, which cannot ertend beyond thirty days. The consequence is the d.ismisssl of the suit' While one can sympathize with the plaintiff pre-emptor for miscalculating the amount but the law is clear and Permits no discretion of the sort as exercised in the t

6 It was contention of learned counsel for the petitioner that he after confirming the sale consideration as Rs.130000/- in the impugred mutation from Patwari halqa' he

has deposited l/3d pre-emption amount, but before raising objection by the respondent, the petitioner/ plaintiff did not

sought amendment in the plaint to correct the wrong mentioning of sale consideration in the plaint, so it is held that the petitioner/ plaintiff has deliberately submitted the less amount and despite having knowledge he did not botler to rectifi his plaint, which is suggestive of the fact that he did not come to the court with clean hands. Leamed courts below have rightly appreciated the facts and circumstances ofthe case and thereby correctly applied the law on the subject' Leamed counsel for the petitioner could not point out any illegality or inegularity, which may warrant interfere under revisional ofthis court, hence, this revision petition has been found to be meritless and same is accordingly dismissed.

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(s.B) Hor,'bL Mr. Iastie l<arfiqn H^Yat Mifir,,k'hel o '(l rNNlilr 0:lri

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