PLJ 2022 SC 22
Punjab Pre-emption Act, 1991 (IX of 1991)--
----Ss. 13 & 24--Civil Procedure Code, (V of 1908), S. 115(1)(a)(b)(c)--Pre-emption suit--Concurrent findings--Direction to deposit in Court one third of sale-price--Short fall of small portion of sale consideration--Declination of application for deposit of balance amount--Non-compliance of order--Exercising of revision power--Challenge to--Consequences for plaintiff in failing to deposit one-third amount of sale consideration within time prescribed by Courts orders, which cannot extend beyond thirty days--Consequence is dismissal of suit--Section 115 of Code enables a Court to exercise revisional power, contours of which are proscribed--Judge of High Court assumed jurisdiction which was not vested in him by Section 115 of Code--Plaintiff did not deposit stipulated one-third of sale consideration amount within prescribed period, as provided for in Section 24 of Act, and thus attracted consequences thereof, which was dismissal of suit--Appeal allowed. [Pp. 25 & 26 ] A, B & D
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Exercising of revisional jurisdiction--Suit was correctly dismissed, and in accordance with law--Causes (a), (b) and (c) of sub-section (1) of Section 115 were not attracted therefore jurisdiction thereunder could not be exercised by High Court.
[P. 26] C
Raja Muhammad Farooq, ASC and Syed Rifaqat Hussain Shah, AOR for Appellants.
Mr. Muhammad Akram Gondal, ASC and Mr. Ahmed Nawaz Chaudhary, AOR for Respondents.
Date of hearing: 28.10.2021.
PLJ 2022 SC 22
[Appellate Jurisdiction]
Present: Qazi Faez Isa and Yahya Afridi, JJ.
versus
RIAZ MEHMOOD (deceased) through L.Rs.--Respondents
C.A. No. 183 of 2015, decided on 28.10.2021.
(Against the order dated 04.12.2014 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Civil Revision No. 47 of 2007)
Judgment
Qazi Faez Isa, J.--This appeal has been preferred as of right under Article 185(2) of the Constitution as the learned Single Judge of the High Court in exercise of revision powers under Section 115 of the Code of Civil Procedure, 1908 (‘the Code’) set aside two concurrent judgments of the Subordinate Courts which had dismissed the pre-emption suit filed by the respondents’ predecessor on the ground that his non-compliance with the order of the Trial Court, dated 18 May 2005, whereby he was directed to deposit in Court the stipulated one-third of the sale price within thirty days, could be varied, and having come to this conclusion permitted him to deposit the shortfall.
2. Learned counsel for the appellants states that as per record the sale price of the property purchased by the appellants was one million and six hundred thousand rupees, such amount was mentioned in the sale mutation (at page 56) and the plaintiff/pre-emptor had also mentioned it in his plaint however, he had contended that an exaggerated amount was shown and that the actual sale price was six hundred thousand rupees. He submits that since the sale mutation had specifically mentioned the sale price and as the Court had directed deposit of one-third of such amount, which came to five hundred and thirty-three thousand, three hundred and thirty-four rupees and thirty-five paisas this amount should have been deposited. However, the plaintiff/pre-emptor deposited an amount of five hundred and thirty-three thousand rupees only and, thus, there was a shortfall of three hundred and thirty-three rupees and thirty-five paisas. Therefore, the suit was rightly dismissed by the Trial Court and the decision of the Trial Court Judge was upheld in appeal. Learned counsel has also referred to the judgments of Muhammad Talha v Muhammad Lutfi (2005 SCMR 720) and Tariq Mehmood v Ghulam Ahmed (PLD 2017 SC 674) and stated that the learned Judge erred in observing that the second proviso to Section 24 of the Punjab Pre-emption Act, 1991 (‘the Act’) required ‘to deposit the probable value of the property’, which learned counsel submits was incorrect. He further submits that on the basis of this error reliance was placed on certain judgments of the High Court but the principle laid out in such judgments were not attracted to the facts of the instant case. The learned counsel states that when the Act had stipulated that something be done in a particular manner and further provided a penalty that of dismissal of suit, then the Court had no discretion in the matter. Concluding his submissions, he states that one-third of the sale consideration had to be deposited even if the plaintiff-pre-emptor disputed such sale consideration, which dispute would be subsequently attended to after framing of an issue in this regard and recording of evidence and if the pre-emptor succeeded in establishing that a lesser amount was paid as sale consideration he would then be entitled to withdraw the excess amount deposited by him.
3. The learned counsel for the respondents submits that the shortfall of a small portion of sale consideration was a genuine mistake on the part of the plaintiff/pre-emptor and he had moved an application seeking permission of the Court to deposit the balance amount but the same was not allowed. Learned counsel states that it does not stand to reason that a person prepared to deposit a substantial portion of the stated one-third amount would non-suit himself by not depositing a very small portion thereof. Concluding his submissions, he submits that the learned Judge of the High Court had correctly exercised his discretion and the judgments of the High Courts cited in the impugned judgment are fully attracted to the facts and circumstances of this case.
4. We have heard the learned counsel for the parties and with their assistance have examined the documents available on the record as well as the precedents mentioned in the impugned judgment and those referred to by the learned counsel for the appellants. To appreciate the controversy and determine it the applicable Section 24 of the Act is reproduced hereunder:
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 such period shall not extend beyond thirty days of the filing of the suit;
Provided further that if no sale price is mentioned in the sale deed or in the mutation, or the price so mentioned appears to be inflated, the Court shall require deposit of one-third of the probable value of the property.
(2) Where the plaintiff fails to make a deposit under sub- section (1) within the period fixed by the Court, or withdraws the sum so deposited by him, his suit shall be dismissed.
(3) Every sum deposited under sub-section (1) shall be available for the discharge of costs.
(4) The probable value fixed under sub-section (1) shall not affect the final determination of the price payable by the pre-emptor.
115. Revision. (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it think fit.
7. Therefore, for the reasons mentioned above the impugned judgment is not sustainable, which is set aside, this appeal is allowed and the pre-emption suit filed against the appellant is dismissed, but with no order as to costs.
(Y.A.) Appeal allowed
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