Wajid Ghani Vs Wakeel Ghani

I

v JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial DePartment)

C.R No. 10 60-P12022

fifajid GhaniVs. Wakeel Ghani) Present: Mr. Manfat Ali, Advocate fot petitioner.

Mn Shahabullah Khan, Advo cate for respondent.

Date of hearing: L8.07.2024

JUDGMENT

MUHAMMAD NAEEM ANWAR, f.- Impugned through instant civil revision petition is the judgment and order of the learned Additional District Judge-II, Mardan at Takht Bahai dated 23.LL.2022 whereby the judgment and. order of the learned Civil Judge-II, Takht Bhai dated 15.09.2022 was set aside, the suit was restored, and the respondent/plaintiff was directed to deposit 173'a of the sale consideration of the pre-empted amount.

2.Briefly, the respondent Wakeel Ghani (Pre- emptor), frled a suit for recovery of possession in respect of the property as mentioned in headnote of the plaint situated in the revenue estate of Sher Garh, Tehsil Takht Bhai, purchased by the present petitioner wajid Ghani through Mutation No. 4689 attested on 18.02 .2022 and Mutation No. 4713 attested on 06.04.2022. On getting knowledge regarding sale of the pre-empted land from Muhammad Iqbal son of Jan Muhammad on25.04.2022 at 1O:OO A.M in presence of zahit Gul son of Haleem (s.8) Hon'ble Mr. Justlce Muhammad Naeem Anwar Tajamul/CS'

Gul, Zia-ur-Rahman son of Darwesh Gul and Abdi Ali son of Muhammad Iqbal, when they all were present at 'Chopal Fruit Farosh', as such, he then and there a.nnounced his intention to pre-empt the property which was sold in lieu of Rs.30,00,000/-, however, per contention of the respondent/pre-emptor, an exaggerated amount was mentioned in the mutations which is inoperative upon his right. Talab-e-Muathibat was followed by Talob-e-Ishhad by sending a notice under the cover of registered AD. The respondent/pre- emptor filed the suit on 28.05.2022 before Civil Judge, Tehsil Takht Bhai being based upon his superior right of the suit property. After verification about the contents of the plaint as correct, it was directed vide order dated 25.05.2022 th;at the suit be registered in the relevant register with further directions to the respondentlpre- emptor to deposit 113'a of the pre-emption amount within 30 days and the case was posted for O4.O7.2022. On the date fixed, the respondent/pre-emptor moved an application seeking extension for deposit of the 1/3ra of the pre-emption amount along with affidavit. The case was adjourned to 29.07.2022 and thereafter for O5.O9.2O22. On the date fixed the trail Court was apprised that the respondent/pre-emptor had moved an application for transfer of the suit with further request that it may be adjourned till decision of the transfer application. The case was posted for 15.09.2022 w}:er:

Tajamul/CS' (s'Bl Hon'ble Mr. Justlce Muhammad Naeem Anwar

the learned trial Court, after hearing the parties, dismissed the suit under Section 2aQl of the Khyber Pakhtunkhwa Pre-emption Act, L987 (athe Act of 1987,,1 for non-deposit of 173'a of the pre-emption amount. The respondent/plaintiff preferred appeal which was allowed vide judgment and order dated 23.11.2022, hence, instant petition.

3.Learned counsel for the petitioner/vendee contended that the mandatory provision of the Act of L987 was violated which in clear terms dictates the dismissal of the suit for failure on the part of pre-emptor for non-compliance of the directions of the Court about deposit of 1/3ra of the pre-emption amount. He argued that not only the order of the Court was disobeyed but on O4.O7 .2022 an application was moved for extension of time. The learned counsel further contended that when the pre-emption amount is not deposited under S. 24(21 of the Act of tg87, the suit of the responde nt/pre- emptor was no more in the lield after lapse of the time provided by the Court, as such, the Court was functus officio and could not extent the time. He went on to say that the learned appellate Court has fallen into error while allowing the appeal and extending the time in negation of the mandatory provision of the Act of 1987, as such, the learned appellate Court has committed an illegality, and the impugned order requires reversal.

Tajamul/CS* (s.8, Hon'ble Mr. Justice Muhammad Naeem Anwar

v 4. Conversely, learned counsel for the respondent/pre-emptor contended that neither the pre- emptor was directed to deposit L l3,a of the total sale consideration nor specific date was gtven to him regarding which he has moved an application to the effect tJ,at the latter part of the order sheet No.2 dated 28.05.2022 was hand-written with fountain pen as compared to the remaining printed portion of the order sheet, hence, the directions with regard to depositing L /3ra of the pre-emption amount were added in the order sheet later on in absence of the pre-emptor. According to him, the failure on the part of the pre-emptor in non- depositing the L /3ra of the pre-emption amount could not be attributed to pre-emptor being not his fault rather it was the act of the Court for which no one could be blamed or penalized. He added that the Court has got ample powers to extend the time under S. 148 of the Civil Procedure Code, 1908 and the prayer of the pre- emptor was rightly considered by the learned appellate Court, therefore, the amount has already been deposited and this petition has become infructuous.

5.Arguments heard and record perused.

6.The main questions involved in the instant petition requiring resolution by this Court are (i) whether of the of the for

depositlng 1/3'a of the pre-emption amount could be resulted into dismlssal of the suit under S. 24{2} of the Tajamul/cs* (s.Bl Hon'ble Mr. Justice Muhammad Naeem Anwar

Act of 1987? (ii) Illhether the directions of the Court for deposlting 1/3'a of the total sale consideration are mandatory? and (iii) Could the Court errtend the time for depositing 1/3ra amount after expitirr of the time provided by the Court? Section 24 of the Act of L987 deals with depositing of the L l3,a of the sale price of the property by the pre-emptor. Sub-section (2) of S. 24 pertarns to the failure on the part of the per-emptor and consequences thereof, which for convenience is reproduced as under:

24.(ll 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. (21 Where the plaintlff fails to deposit one-third of the sale price or the probable value of the propertv within the nerlod flxed bv the Court. his sult shall be dismissed.

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

In the instant matter, it was categorically mentioned by the respondent/pre-emptor that the property was sold in favor of the petitioner/vendee through two mutations i.e., mutation No. 4689 dated 18.02.2022 ar:d mutation No. 4713 dated 06.04.2022, however, in order to defeat the right of pre-emption, an exaggerated amount of Rs.3O,O0,00O/- (thirty lacs) was mentioned in the mutations which has never been paid, in such an eventuality in accordance with sub-section Tajamul/CS+ (s.Bl Hon'ble Mr. Justlce Muhammad Naeem Anwar

(21 of S. 24 of the Act of L987 as reproduced above, the pre-emptor was required to deposit 173'a of the total sale consideration as mentioned in the mutations within the period fixed by the Court. The record reflects that the learned trial Court has directed the registration of the case after verification of the contents thereof with further direction to the pre-emptor to deposit L /3,a of the total sale consideration with specilication of 30 days. It is worth mentioning that the directions for depositing I /3,a of the pre-emption amount were given to pre-emptor on 28.05.2022 whereafter the case was fixed for O4.O7.2022 and as per directions of the trial Court, the respondent/pre-emptor could deposit the amount on or before 28.06.2022 but he moved an application seeking extension of time on the date lixed by the Court i.e., O4.O7.2022 aurtd even thereafter he waited rather sought adjournment, moved an application before the learned District Judge for transfer of the case and ultimately his suit was dismissed on 15.09.2022 on the ground of his failure to comply with the directions of the learned trial Court for depositing L/s'a of pre-emption amount. The learned trial Court has not only glven the specific time i.e., 30 days to the respondent/pre-emptor but the N directions for depositing of L l3'a of the total sale consideration was also mentioned in order sheet No.2 dated 28.05.2022. Neither the directions of the Court were ambiguous or vague rather the same were explicit Taiamul/CS' {s,Bl Hon'ble Mr. Justlce Muhammad Naeem Anwar

v and clear, nor the time grven to respondent/pre-emptor was short for depositing the L/3ra of the pre-emption amount. There was a period of 30 days for depositing the specific amount, but the pre-emptor failed in complying with the directions of the Court. Sub-section (2) of S.24 of the Act of L987 as reproduced above provides that failure of the pre-emptor would result into dismissal of the suit. Since, penal provision has been provided by the legislature in the matter, therefore, the directions of the Court could never be termed to be directory in nature rather it was mandatory as held by the superior Courts that whenever the axillary clause i.e., "shall" or "may" is there in any statute but added by the penalty then it shall be termed to be mandatory provision, otherwise it shall be regraded as directory in nature. During arguments, learned counsel for the respondent/pre- emptor made reliance on oRehman-ud-Dln and another Vs. Sah;lbzado, t2004 scrlR 4781 and contended that in view of the principle laid down by the apex Court in tJ,e referred to above judgment, the pre- emptor was required to be dealt with low magnitude of consequences of dismissal of the suit for the act of the Court. In the mentioned case, the trial Court had dismissed the suit and although the learned appellate Court, while accepting the appeal, extended the time and allowed the pre-emptor to deposit 173'a of the total sale consideration but the facts of the mentioned case are TaJamuUCS* (s.Bl Hon'ble Mr. Justice Muhammad t{aeem Anwar

v distinguishing from the facts of the present case as in the mentioned case the pre-emptor had handed over | /3,a of the pre-emption money to an official of the Court who had failed to deposit the same in time. The ratio of the judgment relied upon by the respondent/pre-emptor is that if pre-emptor is not vigilant in exercising his right of pre-emption, no discretion can be exercised in his favour and he must face consequences of the dismissal of suit as the Court in such cases is not supposed to condone the default while exercising power under S.

148, CPC by taking away the valuable right of the opposite party, therefore, the case law relied upon by the respondent/pre-emptor is going against him. In the case of oMallk Tarlq Mahmood, and, others Vs. Ghulo;m Ahmcd, and. othersD IPLD 2O77 S,C 674) it was observed by the apex Court that when reasonable time was provided to pre-emptor for depositing the 1/3ra of the pre-emption amount without specification of the time then in such an eventuality the time for depositing the amount could not be extended in view of S.148, CPC. It was observed by the apex Court that:

1O. As to the second limb of the submission i.e. when the suit after filing is not formally placed in Court for orders or when there is an omisslon on the part of the Court (ltke in the instant case) ln tlmely dlrectlng the pre- emptor to deposit the zar-e-soht and the pre- emptor takes shelter of subsection (11 whtch subJects the deposit under the order of the Court, by taking a defence that since there was no order of the Court dlrectlng deposit of zar-e- Tajamul/CSr (s.Bl Hon'ble Mr. Justice Muhammad ilaeem Anwar

v solm, therefore, pre-emptor could not be penallzed by invoking the provisions of subsection (21 which provides dlsmissal of sult on account of non-deposit of zar-e-solzr within a maximum perlod of 3O days. Though a pre- emptor in view of subsection (1| must be ready and have in his pocket the required amount of zar-e-solm at the time of filing of suit and to show hls bona llde should ensure that the order for deposit of zar-e-sotm is promptly passed so lts compliance be effected in terms of the first proviso. However, since the required deposit is subJect to the order of the Court, therefore, in cases where Court omits to pass order or the matter is not placed in Court withln the time frame as provided in the flrst provlso then the pre-emptor cannot be blamed and penallzed for such non-deposlt as the deposit of zar-e-soim is subJect to the order of the Court and thts Court in such circumstances by upholding the principle that an act of Court shall preJudice no man, has condoned such default. Reference can be made to the case of Nabi Ahmed v. Muhammad Arshad {2OO8 SCMR 16851. However, ln such ceses upon realizing its mistake the Court while grantlng time for payment of zar-e-solm would not be exercising power under the flrst proviso which empowers the Court to grant any period of time upto 3O days in one go or by entendlng the period from tlme to time upto the maximum of 3O deys but would remedy lts fault under the age old princlple "Acttts curlae nemlnem groaablt" i.e. an act of the Court shall preJudlce no men, therefore, once a reasonable time is granted for deposlt of zar-e- solm to remedy its mlstake, the Court shall have no power to extend and grant further time. Even otherqrise, time for deposit of zar-e- solm is not granted to the pre-emptor to generate fund from hls resources as the pre- emptor must have in his pocket one-third of the sale price of the property sought to be pre- empted while approaching the Court.

Reliance may also be placed on oSher Zada Vs. Shauka,t Alt qnd t2079 MLD 20291.

Tajamul/CS' (s.Bl Hon'ble Mr. Justlce Muhammad Naeem Anwar

_l0- \r' nJansher and, o;nother Vs. lllst. Zamina and, others, (2O77 CIE Note 97) and oJerhanzeb Khan Vs, Jan MuhatnrnadD MLI' 83N.

7.Insofar as the controversy as to whether the provisions of section 24 of the Act of 1987 are directory or mandatory, this issue came up before this Court in the case of "Wali l{han Vs, Waheed Gho;nl Kho;d' (2013 MtD 360, Peshawar), wherein this Court, while going through from the relevant provisions of law along with the principle enunciated by the apex Court in the cases of Muhammad Nawaz (1995 SCMR 105). Naztr Ahmad. (1999 SCMR 3421. Muhammad Irshad, (1991 SCMR 2149). Bhat Kho;n (1986 SCfrIR 8491.

Muhammad Yusuf (2007 SCMR 7485). Rtaz Elussatn (2OOS SCMR 1664) and Shulat Alt (PLD 2OO6 SC 140), has held that:

(il The provlsions of sectTon 24 of the Act are mandatory and the time frxed for payment of the initial l/$ra of the sale price ought not to be extended.

(it)The provisions of sectlon 25 of the Act are directory' and the Courts may in appropriate cases entend the time period for payment of the pre-emption amount decided. (iiif The criteria for determlnlng whether to allow the time period to the pre-emptor under sectlon 25 of the Act, would depend upon whether the delay wes caused due to 'bona fide' conduct of the pre-emptor or the 'act of & the Court'.

(iv)After a Court has declded a case, it cannot, unless lt has assumed revlew Jurisdiction or to correct any clerical or arithmetical mistake' errtend the perlod of pa5rment of pre-emption amount under section 25 of the Act.

Taiamul/CS' (s.Bl Hon'ble Mr. Justlce Muhammad Naeem Anwar

- ll - v (vl A Court having decided a matter cannot assume the Jurisdictlon and errtend the time period under section 148 of the C.P.C. ln pre- emptlon eases, as provided under sectlons 24 and 25 of the Act, as the satd statute has a stipulated time period mentioned therein., The principle enunciated by this Court that the provisions of section 24 of the Act of 1987 are mandatory and the Court cannot extend the time for payment of ll3,a of the preemption amount whereas section 25 is for deposit of 213ra of the remaining amount is also mandatory in view of the dicta laid down by the apex Court in Muhammdd Yusufs case (2OO7 SCMR 1485), wherein the apex Court has held that the delayed payment reflects the contumacious conduct of the pre- emptor, which affects his bona fide intention, wherein he could not be held entitled for discretionary relief. Similarly, in Muhammad, Nqwaz's case (1995 SCMR 105), it was held by the Honble Supreme Court that:

*However, neither a trial Court nor an appellate Court can extend time for deposit of pre-emption money once the matter stands dlsposed of and it is no-longer pendlng before it. In such an event, the direction contained in the ortgtnal decree to the effect that ln case of failure to deposit the pre-emption money the suit shdl stand dismissed, becomes effective. However, the above rule seems to be subJect to one exception, namely, that if an appellate Court varies the flnding of the Court below on the quantum of the pre-emptlon money, in N other words it either increases or reduces the same, in that event, it should fix fresh reasonable time for deposit of the pre-emption money and in the absence of any such fixation' the pre-emptor may deposlt the same within reasonable tlme.'

Tajamul/CSt (s.8) Hon'ble Mr. Justlce Muhammad Naeem Anwar

v 8. Thus, to cut it short, the above discussion, question No. (i) formulated above is answered in affirmative by holding that non-compliance of the directions of the Court for depositing L /3,a of the pre- emption amount would result into dismissal of the suit under S. 24(2) of tJ,e Act of L987. Similarly, about question No. (ii), the directions of the trial Court for depositing 1/3'a of the total sale consideration are mand.atory in nature and non-compliance thereof by the pre-emptor would result into dismissal of his suit. As far as the last question is concerned, the Court cannot extend the time for depositing l/3ra of the pre-emption amount after expiry of the time provided by the Court.

9.Thus, for what has been discussed above, it is held that the learned appellant Court could not extend the time rather the learned trial Court had given a specilic time to the pre-emptor for depositing of the amount with specilication of I ls'a of the total sale consideration of the pre-empted property as mentioned in the mutations, as such, non-compliance of the directions of the learned trial Court by the respondent/pre-emptor could not be cured, hence, the learned appellant Court has committed an illegality by A\ extending the time to pre-emptor for depositing 1/3ra of the total sale consideration which is in utter disregard of the mandatory provision of Section 2aQl of the Act of L987. Resultantly, instant petition is allowed, the order Talamul/CS* (s.Bl Hon'ble Mr. Justlce Muhammad Naeem Anwar

\r' of the learned appellate Court is set aside and that of the learned trial Court is restored with no order as to cost.

Announced Dt218.07.2024 c_

JUDGE

Tajamul/CS' (s.Bl Hon'ble Mr. Justice Muhammad Naeem Anwar