PLJ 2016 SC 102
K.P.K. Pre-emption Act, 1987 (X of 1987)--
----S. 24--Right of pre-emption--Sale consideration--Inadvertently mentioned sale consideration paid by vendee to vendor--Differential amount was less than 1/3rd of total amount of sale consideration--Statutory words, sale consideration misnomer describing pre-emption money--Misconceived practice--Validity--Due to mistake of fact draftsman/lawer inadvertently without any mala fide intent had mentioned sale consideration--Pre-emptor had also applied to trial Court for amendment of plaint to rectify same which fact would show bona fide intention--Pre-emptor had not gained any undue benefit because he had sincerely and faithfully complied with Court order by depositing huge amount thus by not depositing additional amount could not be held to be deliberate non compliance with Court order--Courts are under obligation to facilitate litigant to maximum extent by passing clear order giving direction without any ambiguity--It is duty of Court to tell pre-emptor exact amount he is required to deposit 1/3rd of sale consideration--Order for depositing of amount was passed in great haste and also in entire vaccum which led pre-emptor to wrong conclusion--Once it is established that initial error was committed by Civil Court then blame cannot be shifted pre-emptor--No error much less legal infirmity of High Court--If due to dismissal of suit pre-emptor had not deposited so far remaining amount as worked out on basis of total sale consideration, then he gave a time of 20 days to deposit remaining amount with trial Court--Appeal was dismissed. [Pp. 105, 106 & 107] A, B, D & H
K.P.K Pre-emption Act, 1987 (X of 1987)--
----S. 24--Sale consideration--Description like pre-emption money was patently wrong construction on statute--Differential amount which was less than 1/3rd of total amount of sale consideration--Deficiency by depositing remaining amount--Validity--It is also duty of Court to clearly tell plaintiff/pre-emptor that he is required to deposit 1/3rd of sale consideration shown in sale deed or mutation moreover, for deposit of said 1/3rd of sale consideration a reasonable time must be given because Civil Judge was acting as MOD and was not a trial judge, thus, pre-emptor was required to apply to trial Court getting permission to deposit amount in Court--Subsequent conduct of pre-emptor by quickly moving an application for amendment of plaint to show correct amount and willing to deposit balance amount of 1/3rd at 'any time loudly speaks about his bona fide and once a wrong was committed by trial Court causing prejudice to pre-emptor on subject issue then, pre-emptor could not be visited with penalty much less harsh one by dismissing his suit on account. [P. 106] C & E
Unnecessary litigation--
----Sale consideration--Mentioned in registered sale deed or mutation--Period for deposit 1/3rd of sale consideration must be reasonable--Giving three days time was absolutely marginal and harsh--Dispensation of justice--Validity--In future, sale consideration given a misnomer as pre-emption money would not be used but statutory phrase/words 1/3rd of sale consideration would be invariably employed so that responsibility of vendee/pre-emptor is to be made more specific and clearer--If a penalty like dismissal of suit on account of deposit of deficient amount is to be imposed then it should be clearly established that it was pre-emptor who deliberately committed default and not due to bona fide mistake--Similarly trial Court shall perform its legal obligation in a proper and fair manner by passing a clear order about deposit of calculated amount of 1/3rd of total sale consideration mentioned in sale deed, mutation--If Court commits a default in that regard then pre-emptor cannot be visited with such a penalty like dismissal of suit because fault in such a case would lay with Court for which pre-emptor in no manner can be blamed for depositing less amount.
[P. 107] F & G
Mr. Ahsan Hameed Lilla, ASC and Syed Rifaqat Hussain Shah, AOR for Appellants.
Mr. Mohsin Akhtar Kiyani, ASC for Respondent.
Date of hearing: 30.9.2015.
PLJ 2016 SC 102
[Appellate Jurisdiction]
Present: Sarmad Jalal Osmany & Dost Muhammad Khan, JJ.
WASAL KHAN, etc.--Appellants
versus
Dr. NIAZ ALI KHAN--Respondent
C.A. No. 535 of 2015, decided on 30.9.2015.
(On appeal from the judgment dated 13.6.2014 passed by the Peshawar High Court, Peshawar in Civil Revision No. 509-P/2013).
Judgment
Dost Muhammad Khan, J.--With the leave of the Court, through this appeal, the appellants have challenged the legality of the judgment dated 13.6.2014 of the learned Judge of the Peshawar High Court, Peshawar passed in Civil Revision No. 509-P/2013.
Arguments of the learned ASC for the appellants as well as respondent heard and available record carefully perused.
2. The epitome of the controversy is that respondent/ plaintiff instituted a suit claiming right of pre-emption over the suit property described in the plaint measuring 11 Marla 4 Sarsahi.
3. In the plaint, as it appears, respondent/pre-emptor inadvertently mentioned the sale consideration allegedly paid by the vendee to the vendor as Rs. 14,00,000/- (fourteen lac) while in fact the sale consideration mentioned in the mutation was Rs. 14,40,000/-.
4. The trial Judge without fulfilling its legal obligation in a proper and fair manner passed an order under the provision of Section 24 of the NWFP Pre-emption Act, 1987 (now KPK) which reads as follows:-
“ORDER # 1
09.06.2012
1. The instant suit file submitted today during the MOD. Entrusted to the Court of the learned Civil Judge-III, Lahor and plaintiff to attend the proceedings therein while he is directed to deposit 1/3rd of the pre-emption amount within three days starting from today.
2. On submission of summon forms the defendants be summoned for 20-06-2012.
Sd/-
(ARBAB SOHAIL HAMID)
MOD/Civil Judge-II, Lahor”
5. The respondent/pre-emptor deposited 1/3rd of the pre-emption amount i.e. of the total amount shown in the plaint as
Rs. 1400,000/- (fourteen lac) within the time given by the Court.
6. The appellants/vendees with an attempt to get benefit of this bona fide error, took a plea of short deposit of 1/3rd of total amount both in the written statement as well as in the application submitted in the trial Court and prayed for dismissal of the suit because an amount of Rs. 13330/-was the deferential amount which was less than the 1/3rd of the total amount of the sale consideration of Rs. 14,40,000/- and because Section 24 of the Act leave no discretion with the Court but to dismiss the suit. The learned trial judge dismissed the suit on 14.2.2013 for non-compliance with the Court order with regard to the deposit of 1/3rd of the pre-emption money, however, on appeal filed by the respondent/pre-emptor, the learned Additional District Judge, Lahor, District Swabi, for cogent reasons set aside the judgment and allowed the pre-emptor to make good the deficiency by depositing the remaining amount of Rs. 13330/- and remanded the case to the lower Court for trial.
7. Aggrieved from, this judgment, the appellant filed Revision Petition No. 509-P/2013 in the Peshawar High Court,
8. It is unfortunate that the statutory words i.e. sale consideration has been given a misnomer describing the same pre-emption money and it is invariably used in the trial Court and even in the District Appellate Court which is a wrong practice being misleading one and because it is distortion of the statutory phrase employed in the provision of Section 24 of the Pre-emption Act “sale consideration”. The same is thus, misconceived practice.
9. In the instant the case, due to mistake of fact the draftsman/lawyer inadvertently without any mala fide intent has mentioned the sale consideration as Rs. 14,00,000/- (fourteen lac), instead of Rs. 14,40,000/-. For the correction of the same, the. respondent/pre-emptor has also applied to the trial Court for amendment of the plaint to rectify the same which fact would show his bona fide intention. The respondent/pre-emptor has not gained any undue benefit because he has sincerely and faithfully complied with the initial Court order by depositing a huge amount of Rs. 466670/- thus by not depositing the additional amount of Rs. 13330/- could not be held to be a deliberate non-compliance with the Court order. More so, when the trial Judge had not specifically directed him to deposit 1/3rd of the sale consideration mentioned in the mutation.
10. Courts are under obligation to facilitate the litigant to a maximum extent by passing a clear order, giving direction without any ambiguity to the litigant to act in a certain way and in a particular manner and when it comes to calculation of an exact amount requires to be deposited thus, it must be clearly laid down/shown in the order and the litigant should not be pushed into realm of guess work, where in a uncertain situation, he is unable how to proceed and in what manner to comply with the order of the Court. Therefore, it is the duty of the Court to tell the plaintiff/ pre-emptor the exact amount he is required to deposit i.e. 1/3rd of the sale consideration. The word pre-emption money as stated earlier has been misconstrued in some cases by rustic villagers and when the provision of Section 24 of the Pre-emption Act, 1987 clearly contains the word sale consideration, then giving it another description like pre-emption money is patently wrong construction on the Statute. This practice invariably prevalent and always pressed into service must be stopped henceforth. It is also the duty of the Court to clearly tell the plaintiff/pre-emptor that he is required to deposit 1/3rd of the sale consideration shown in the sale deed or mutation etc. moreover, for the deposit of the said 1/3rd of the sale consideration a reasonable time must be given because in the instant case the learned Civil Judge was acting as MOD and was not a trial Judge, thus, the respondent/pre-emptor was required to apply to the trial Court getting permission to deposit the amount in the Court. Therefore, giving three days time was absolutely marginal and harsh. The discretion vested in the Court to give the time has not been exercised in a just and fair manner. This is no way of performing a judicial obligation in a judicious manner. The order for the deposit of the amount was passed in great haste and also in entire vacuum which certainly led the respondent/pre-emptor to a wrong conclusion. Once it is established that initial error was committed by the learned Civil Judge then the blame cannot be shifted to the respondent/pre-emptor, in view of the well embedded principle that an act of the Court shall prejudice none.
11. From the facts and circumstances, and the subsequent conduct of pre-emptor by quickly moving an application for amendment of the plaint to show the correct amount of Rs. 14,40,000/- instead of Rs. 14,00,000/- (fourteen lac) and willing to deposit the balance amount of 1/3rd at any time loudly speaks about his bona fide and once a wrong was committed by the trial Court causing prejudice to the respondent/pre-emptor on the subject issue then, the respondent/pre-emptor could not be visited with penalty much less the harsh one by dismissing his suit on this account.
12. To avoid such unnecessary litigation on petty matters, it is directed that in future the trial Court shall calculate the sale consideration mentioned in the registered sale deed or mutation or any other document and if these documents are not available then through other reliable source it has to calculate the same and then to direct the vendee/pre-emptor to deposit a specific amount within a stipulated period, however, the period for deposit must be reasonable. In future, the sale consideration given a misnomer as pre-emption money should not be used but the statutory phrase/words 1/3rd of the sale consideration should be invariably employed so that the responsibility of the vendee/pre-emptor is to be made more specific and clearer.
13. The new dispensation of justice in matter of pre-emption requiring the pre-emptor to deposit 1/3rd of the sale consideration in cash in the Court and for the rest he has to furnish surety bond is with the object to ensure that the suit instituted by the pre-emptor is neither frivolous nor it is intended to exploit the vendee through the machinery of the Court and the Court has to satisfy itself about the bona fide of the pre-emptor that his case being genuine. Therefore, if a penalty like dismissal of suit on account of deposit of deficient amount is to be imposed then it should be clearly established that it was the pre-emptor who deliberately committed the default and not due to bona fide mistake. Similarly the trial Court shall perform its legal obligation in a proper and fair manner by passing a clear order about the deposit of calculated amount of 1/3rd of the total sale consideration mentioned in the sale deed, mutation etc. In any case if the Court commits a default in this regard then the pre-emptor cannot be visited with such a penalty like dismissal of suit because the fault in such a case would lay with the Court for which the pre-emptor in no manner can be blamed for depositing less amount.
14. Keeping in view the above facts and circumstances, we do not find any error much less a legal infirmity in the impugned judgment of the High Court and that of the learned Additional District Judge, therefore, this appeal is found devoid of all legal merits and is dismissed. If due to the dismissal of the suit the pre-emptor/respondent has not deposited so far the remaining amount of Rs. 13330/- as worked out on the basis of total sale consideration of Rs. 14,40,000/-, then he is given a time of twenty days to deposit the remaining amount with the trial Court from the date of receiving copy of this judgment to make good the deficiency and the trial of the case be held on merits.
(R.A.) Appeal dismissed
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