Shortfall in depositing of the one-third amount of the sale consideration was a 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.

 It appears that the shortfall in depositing of the one-third amount of the sale consideration was a 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 question before us is, whether the court has discretion to proceed in a manner not stipulated in section 24 of the Act. The provision is self-contained and clear. It also mentions the consequences for the plaintiff in failing to deposit the one-third amount of sale consideration within the time prescribed by the courts orders, which cannot extend beyond thirty days. The consequence is the dismissal 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 impugned judgment.

Section 115 of the Code enables a court to exercise revisional power, the contours of which are proscribed. The learned Judge of the High Court assumed jurisdiction which was not vested in him by section 115 of the Code.

Therefore, the suit was correctly dismissed, and in accordance with the law. Moreover, clauses (a), (b) and (c) of sub-section (1) of section 115 were not attracted therefore jurisdiction thereunder could not be exercised by the High Court. This is also not a case where the Court had itself calculated the one-third amount and made a mistake which required correction. In this case the plaintiff/pre-emptor himself committed the mistake, the consequences whereof he had to suffer. The quantum of the mistaken amount was inconsequential. The plaintiff/preemptor did not deposit the stipulated one-third of the sale consideration amount within the prescribed period, as provided for in section 24 of the Act, and thus attracted the consequences thereof, which was the dismissal of the suit.

Civil Appeal No. 183 of 2015
Hamza Sheraz and another. Versus Riaz Mehmood (deceased) through L.Rs