PLJ 2023 Lahore (Note) 1
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 24(1)(2)--Constitution of Pakistan, 1973, Art. 199--Application for dismissal of pre-emption suit due to non-deposit of zar-e-soim--Dismissed--Revision petition--No specific order for deposit of zar-e-soim--Omission of Court--Zar-e-soim deposit after requisite period of promptly by respondent--Question of--Whether Court fails to give direction for deposit of zar-e-soim or omits to pass an order for deposit during statutory period--Whether on account of omission of Court party can be made to suffer--Challenge to--Provision of law pre-requires a direction for deposit of amount of zar-e-soim with a view to attract consequential penalty and obviously party cannot suffer on account of any omission on part of Court to give such direction--Once order was made, respondent wasted no time by depositing amount within 04 days--Dispatch of respondent in making deposit, as such, was consistent with spirit of promptitude and constituted reasonable and prudent approach that did not attract attribution of delay--Suit should be dismissed for non-deposit of zar-e-soim was justifiably turned down--Petition dismissed. [Para 5 & 6] A, B & C
PLD 2017 SC 674 and 2005 SCMR 720 ref.
Mr. Sadaqat Mehmood Butt, Advocate for Petitioners.
Mr. Irfan Saeed, Advocate for Respondent No. 3.
Date of hearing: 9.12.2021.
PLJ 2023 Lahore (Note) 1
Present: Rasaal Hasan Syed, J.
ANJUM SARWAR BUTT and another--Petitioners
versus
ADDITIONAL DISTRICT JUDGE, GUJRANWALA and others--Respondents
W.P. No. 54744 of 2019, heard on 9.12.2021.
Judgment
Through the instant Constitutional petition orders dated 06.3.2018 and 06.8.2019 of the learned Courts below have been called into question.
2. Respondent No. 3 Muhammad Aslam instituted a suit to pre-empt the sale of suit property measuring 16 marlas on the basis of being shafi-e-sharik alleging therein that the sale thereof vide sale deed bearing document No. 4431 dated 11.4.2016 was made collusively and secretly and that he came to know of the same on 23.7.2016 at 9:30 a.m. near Pak Land Model School near Police Station Cantt., Gujranwala when he was accompanied by Ehsan Ullah son of Muhammad Aslam, his real son; Nasrullah Cheema, Advocate; and Muhammad Afzaal son of Muhammad Tufail on the information received from the mouth of one Ahmad son of Liaqat Ali who had come to know of it from the patwar khana at Rahwali and that immediately upon receiving the information in the presence of witnesses a jumping demand was made which was followed by notice of Talb-e-Ishhad dated 26.7.2016 and, thereafter, by suit which was filed on 04.8.2016. Summons were issued to the opposite side for 10.8.2016 whereafter the case was fixed for 05.9.2016 on which date Court ordered for deposit of zar-e-soim that was made by the respondent on 09.9.2016. On 07.11.2017 the petitioner moved an application claiming therein that the suit was liable to be dismissed for violation of the mandatory provision of Section 24(2) of the Punjab Pre-emption Act, 1991 as zar-e-soim had not been deposited within time. After hearing both sides the application was dismissed vide order dated 06.3.2018 by the trial Court. Petitioner’s Revision thereagainst too remained unsuccessful and was dismissed by the learned Addl. District Judge, Gujranwala vide order dated 06.8.2019. Both these orders are subject-matter of the instant Constitutional petition.
3. Learned counsel for the petitioner submits that the respondent was liable to deposit the zar-e-soim within 30 days of the date of filing of the suit as required by Section 24 of the Act ibid. and that, as such, the orders of the learned Courts below in turning down the plea of the petitioner for dismissal of the suit for non-compliance are illegal and liable to be interfered with in the Constitutional jurisdiction. Learned counsel for the respondent on the other hand defended the orders of the Courts below and prayed for dismissal of instant petition.
4. Perusal of the copies of record appended with the instant petition reveals that the suit was presented before the Duty Judge, for the first time on 04.8.2016 during summer vacation; it was adjourned to 10.8.2016 and thereafter to 05.9.2016. On both these dates i.e. 04.8.2016 and 10.8.2016 no specific order was passed requiring the pre-emptor to deposit the amount of zar-e-soim. Section 24(1) of the Act ibid. contemplates to the effect that in every suit for pre-emption the Court shall require the plaintiff to deposit in such Court 1/3rd 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 30 days of the filing of the suit. Careful consideration of the provision of law leaves little room for doubt that the Court is obligated to require the pre-emptor to deposit the amount of zar-e-soim within the statutory period and in the event, the plaintiff pre-emptor fails to make such deposit within the period fixed by Court or withdraws the sum so deposited, the suit shall be dismissed.
5. The crucial question that arises for determination is that in a case where the Court fails to give a direction for the deposit of zar-e-soim or omits to pass an order for deposit during the statutory period, whether on account of act or omission of the Court the party can be made to suffer. True that the provisions of Section 24 are mandated to verify the bona fide of the pre-emptor and that is why a consequential penalty in the event of violation of the order is provided; nevertheless, the provision of law pre-requires a direction for deposit of the amount of zar-e-soim with a view to attract the consequential penalty and obviously the party cannot suffer on account of any omission on the part of the Court to give such direction. Wisdom may be drawn from the rule in case of “Malik Tariq Mahmood and others v. Ghulam Ahmed and others” (PLD 2017 SC 674) wherein the Supreme Court of Pakistan, while considering such situation amongst other, observed to the effect that if the Court omits to pass the order of deposit of zar-e-soim the pre-emptor cannot be blamed or penalized for such non-deposits of the amount of zar-e-soim. The operative part of the observations are as under:
“… Though a pre-emptor in view of subsection (1) must be ready and have in his pocket the required amount of zar-e-soim at the time of filing of suit and to show his bona fide should ensure that the order for deposit of zar-e-soim is promptly passed so its 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 within the time frame as provided in the first proviso then the pre-emptor cannot be blamed and penalized for such non-deposit as the deposit of zar-e-soim is subject to the order of the Court and this 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 (2008 SCMR 1685). However, in such cases upon realizing its mistake the Court while granting time for payment of zar-e-soim would not be exercising power under the first proviso which empowers the Court to grant any period of time upto 30 days in one go or by extending the period from time to time upto the maximum of 30 days but would remedy its fault under the age old principle “Actus curiae neminem gravabit” i.e. an act of the Court shall prejudice no man, therefore, once a reasonable time is granted for deposit of zar-e-soim to remedy its mistake, the Court shall have no power to extend and grant further time …”
(emphasis supplied)
In “Mian Muhammad Talaha Aadil v. Mian Muhammad Lutfi” (2005 SCMR 720) while considering the effect of mistake on the part of the Court in interpreting the provisions of Section 24 of the Act ibid., by directing deposit of zar-e-soim through purchase of Defence Savings Certificates, instead of cash deposit; which was not visualized by law and wherein an objection as to the non-compliance of law and for dismissal of the suit was raised when it was observed that the parties cannot suffer on account of act or omission of the Court. The operative part of the judgment reads as follows:
“8. Undoubtedly, the language used in the statute speaks of deposit of 1/3rd of sale price in cash. Nevertheless, no exception can be taken to the power of the Court to invest the amount deposited by a plaintiff in a profit bearing security, after enforcing the payment of the amount in cash. In the present case, trial Court acting in good faith and being unmindful of the provisions of law proceeded to concede to the prayer of the respondent and allowed him to invest the amount in the purchase of a Defence Savings Certificate and to deposit the same in Court before the last date fixed by the Court. Technically speaking, the order, on the face of it, may not be sustainable but respondent cannot be punished for an act or error on the part of the Court. Indeed, he cannot be saddled with the responsibility of passing of a defective or erroneous order on the part of the trial Court, as it is well settled that no person shall suffer from the act or omission of the Court and the act of Court shall not prejudice any one. In law, the respondent could be punished for his failure, had he not complied with the order of the Court and not otherwise, as contemplated by subsection (2) of Section 24 ibid. For reference sake, there is a plethora of precedent cases i.e. Muhammad Hanif v. Muhammad PLD 1990 SC 859, Fateh Khan vs. Bozemir PLD 1991 SC 782, Abdur Rashid v. Abdul Salam 1991 SCMR 2012, Sherin v. Fazal Mehmood 1995 SCMR 584, Iftikhar Beg v. Muhammad Azam 1996 SCMR 767, State v. Asif Adil 1997 SCMR 209, Muhammad Mansha v. Sabir Ali 1999 SCMR 1782, Muhammad Iqbal v. Khan Muhammad PLD 1999 SC 35, Zahoor Textile Mills Ltd. vs. Federation of Pakistan PLD 1999 SC 880, Imran Ashraf v. State 2001 SCMR 424, Ladha Khan. vs. Mst. Bhiranwan 2001 SCMR 533, Ghulam Hussain v. Jamshed Ali 2001 SCMR 1001, Fida Hussain v. State PLD 2002 SC 46 and Dar Okaz Printing and Publishing Ltd. v. Printing Corporation of Pakistan PLD 2003 SC 808.
9. Irrespective of the circumstances that the trial Court was ill-advised to pass an order permitting the respondent to purchase the Defence Savings Certificates and place it on record, the fact remains that respondent after compliance of the order and having placed the Defence Savings Certificates on the record of the Court can neither be held guilty of wilful default nor non-compliance of the order of the Court, which is a sine qua non for attracting the penal provision contemplated by law. Learned Judges of the High Court, having fully appreciated the factual and legal position after detailed resume of the case-law on the subject cited by the parties. We do not think that jurisdiction exercised by the High Court suffers from any inherent defect or error of jurisdiction or of law …”
(emphasis supplied)
6. In this case too, although suit was filed on 04.8.2016 but no order was made for deposit on the date and on subsequent date and it was on resumption of Court work after summer vacation, i.e. on 05.9.2016, the presiding officer directed that the suit being registered and an order was passed for deposit of Rs. 4,44,334/-within 30 days being 1/3rd of the total alleged sale consideration of Rs. 13,33,000/-along with direction for affixation of Court fee of Rs. 15,000/-and the case was adjourned to 05.10.2016. The respondent on being required instead of waiting for 30 days promptly deposited the requisite amount in the government treasury on 09.9.2016 i.e., within 04 days of the said order and filed a paid challan on the next date i.e., 05.10.2016. Once the order was made, respondent wasted no time by depositing the amount within 04 days. The dispatch of respondent in making deposit, as such, was consistent with the spirit of promptitude and constituted reasonable and prudent approach that did not attract attribution of delay. The fact that the order was not made till 05.9.2016 by the Court requiring him to do so clearly amounted to an act on part of the Court that could prejudice no one in the peculiar situation. The expectation in the circumstances that the suit should be dismissed for non-deposit of zar-e-soim was justifiably turned down. The orders passed, as such, are fair and reasonable and are in spirit with the rule observed by the Supreme Court of Pakistan supra; no interference in extraordinary jurisdiction is warranted.
7. As a result of the above instant Constitutional petition being without substance is, accordingly, dismissed.
(Y.A.) Petition dismissed
0 Comments