PLJ 2023 Lahore (Note) 159
Present: Ahmad Nadeem Arshad, J.
BASHARAT ALI--Petitioner
versus
SUBEDAR KHAN etc.--Respondents
C.R. No. 193043 of 2018, heard on 20.1.2022.
Civil Procedure Code, 1908 (V of 1908)--
----O.VII R. 11--Punjab Pre-emption Act (IX of 1991), S. 24—Rejection of plaint—Oral sale mutation—Lesser deposit of Zar-e-Soim--Pre-emption--Application for interim relief--Direction for deposit of zar-e-soim--Bona fide mistake--Challenge to--Wrong calculation by trial Court--The trial Court wrongly calculated 1/3rd of sale price (Zar-e-Soim) as Rs. 3,83,334/-instead of Rs. 3,83,333.3333/---Lapse on part of petitioner was a bona fide mistake as he made Zar-e-Soim round figure in a lesser side rather greater side because paisas (coins) are not counted now a days and he was not guilty of contumacious--It is also settled principle of law that procedural technicalities cannot restrain court in doing complete justice--Civil revision allowed.
[Para 10 & 12] B, C & D
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 24--Requirement--Pre-emptor/plaintiff is required to deposit 1/3rd of sale price of property under pre-emption in Court.
[Para 10] A
2000 SCMR 866 & 2016 SCMR 40 ref.
M/s. Raja Rafaqat Ali and Shabbir Ahmad Khan, Advocates for Petitioner.
Ch. Abdul Majeed and Ch. Ihsan-ul-Haq, Advocates for Respondents.
Date of hearing: 20.1.2022.
Judgment
The petitioner through this civil revision called in question the validity and legality of the judgments and decrees of learned courts below whereby his suit for possession through pre-emption was rejected under Order VII, Rule 11, C.P.C.
2. Facts in brevity are that petitioner instituted a suit for possession through pre-emption on 16.04.2014 by pre-empting the suit property sold through oral sale mutation No. 2026 dated 25.02.2014 for a consideration of Rs. 11,50,000/-. Inadvertently, the learned trial Court failed to direct the petitioner/plaintiff for deposit of Zar-e-Soim, however, on 13.06.2014 the learned trial Court directed the petitioner/plaintiff to deposit Zar-e-Soim Rs. 3,83,334/-in the following terms:
“The Zar-e-Soim amount was not deposited by the plaintiff and it is stated that the same could not be done because no order was passed in this regard and submitted that plaintiff may be allowed to deposit the same. In support of his arguments, learned counsel for the plaintiff placed on respected ruling reported as 1995 CLC 957. The record reflect that the plaintiff was not directed to deposit the Zar-e-Soem, so while placing reliance on the respected ruling cited above, the plaintiff is allowed to deposit Zar-e-Soim Rs. 3,83,334/-within a period of 30 days from today and submit receipt/copy of challan by or before next date of hearing.”
3. The petitioner/plaintiff deposited Rs. 3,83,333/- instead of
Rs. 3,83,334/-, less amount of Rs. 01/-, through challan No. 32-A in the head of Court account G-11215/RD on 17.06.2014. The learned trial Court while deciding application for temporary injunction vide order dated 23.06.2016 directed the petitioner/plaintiff to argue with regard to the effect of said lesser deposit of Zar-e-Soim. Thereafter, the learned trial Court vide judgment and decree dated 07.06.2017 rejected the plaint under order VII rule 11 C.P.C. in the following manner:
“So, plaintiff is unable to deposit 1/3rd sale price of the property. So, under Order 24(2) where the plaintiff fails to make a deposit under subsection (1) within the period fixed by the court or withdraws the sum so deposited by him, his suit shall be dismissed. In these circumstances, plaint of plaintiff is hereby rejected Under Order VII, Rule 11, C.P.C.”
4. Feeling aggrieved, petitioner/plaintiff filed an appeal which was dismissed by the learned appellate Court vide judgment and decree dated 23.02.2018. The operative part of the judgment is as under:
“For the foregoing reasons, when the specific amount of Zar-e-soim as directed by the learned trial court in its order dated 13.06.2014 i.e. amount of Rs. 383334/-or the required amount of Zar-e-soim under Section 24 (1) of Punjab Pre-Emption Act, 1991 i.e. Rs. 383333.33/-keeping in view the sale consideration of Rs. 11,50,000/-was not deposited, the learned trial court has no option but to dismiss the suit under Section 24 (ii) of Punjab Pre-Emption Act, 1991. The impugned order of the learned trial court was passed after due consideration of facts, record of the case and according to law. Resultantly, when the appellant has failed to point out any illegality or irregularity in the impugned order dated 07.06.2017, instant civil appeal being devoid of merits stands dismissed. The appellant/plaintiff may withdraw the deposited amount of Rs. 383333/-as per prescribed procedure. Parties are left to bear their own costs ……..”
5. Being dissatisfied petitioner/plaintiff filed instant civil revision. Learned counsel appearing on behalf of the petitioner maintains that the learned courts below without application of judicial mind and without proper appreciation of the facts of case passed the impugned orders; that the petitioner/plaintiff deposited Rs. 3,83,333/-as Zar-e-Soim keeping in view the sale price of Rs. 11,50,000/-within time allowed by the Court but the learned trial Court unlawfully, arbitrarily and in haste manner rejected the plaint and while relying upon case law titled as “Gul Usman and others versus Mst. Ahmero and 11 others” (2000 SCMR 866) and “Wasal Khan and others v. Dr. Niaz Ali Khan” (2016 SCMR 40) prayed for acceptance of the revision petition and restoration of his suit.
6. Contrary to that, learned counsel appearing on behalf of respondents argued that impugned orders of learned courts below are in accordance with law and passed keeping in view facts and circumstances of the case; that the learned trial Court vide order dated 13.06.2014 had directed to deposit a specific amount of Rs. 3,83,334/-which was not deposited within time allowed by the Court, therefore, the learned trial Court rightly rejected the plaint of the petitioner/plaintiff which was also rightly upheld by the learned appellate Court and while relying upon “Malik Tariq Mahmood and others v. Ghulam Ahmed and others” (PLD 2017 SC 674) prayed for dismissal of the revision petition.
7. I have heard the learned counsel for the parties at full length and perused the record with their able assistance and also gone through the case laws cited at bar by the learned counsel for the parties.
8. Admittedly, the petitioner/plaintiff pre-empted a sale which was occurred through oral sale Mutation No. 2026 dated 25.02.2014 for a consideration of Rs. 11,50,000/-. There is no denial to the fact that suit was instituted on 16.04.2014 and the learned trial Court failed to make any direction with regard to deposit of Zar-e-Soim. The controversy revolves around the interpretation of Section 24 of the Punjab Pre-emption Act, 1991, therefore, in order to reach at a just and fair conclusion, it would be beneficial to reproduce the said section, which reads as under:
Section 24 of Punjab Pre-emption Act, 1991.
(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 the suit: Provided further that if no sale price is mentioned in the sale-deed or in mutation, or the price so mentioned appears to be inflated, the Court shall inquire deposit of one-third of the probable value of the property.
(2) Where the plaintiff falls to make a deposit under subsection (1) within period fixed by the Court or withdraws the sum so deposited by him, his suit shall be dismissed.
(3) Every sum deposited under subsection (1) shall be available for the discharge of costs.
(4) The probable value fixed under subsection (1) shall not affect the final determination of the price payable by the pre-emptors.
9. A bare perusal of said section it appears that the Court is bound to require the pre-emptor to deposit 1/3rd of the sale price (Zar-e-Soim) of the property sought to be pre-empted within a period left to the discretion of the court. However, through first proviso of the section ibid such discretion is restricted by a maximum period of 30 days from the filing of the suit. It is also manifest from the section ibid that the required deposit is subject to the order of the Court, therefore, if the Court failed to pass an order to deposit Zar-e-Soim then the pre-emptor cannot be penalized for such non-deposit as it is a settled principle of law that no one shall be prejudice by an act of the court. Guideline has been taken from the esteemed judgment of Hon’ble Supreme Court of Pakistan titled as “Malik Tariq Mahmood and others versus Ghulam Ahmad and others” (PLD 2017 SC 674). The relevant para is as under:
“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 omission on the part of the Court (like in the instant case) in timely directing the pre-emptor to deposit the zar-e-soim and the pre-emptor takes shelter of subsection (1) which subjects the deposit under the order of the Court, by taking a defence that since there was no order of the Court directing deposit of zar-e-soim, therefore, pre-emptor could not be penalized by invoking the provisions of subsection (2) which provides dismissal of suit on account of non-deposit of zar-e-soim within a maximum period of 30 days. 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 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 the 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 to Court to grant any period of time upto 30 days in one go 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. Even otherwise, time for deposit of zar-e-soim is not granted to the pre-emptor to generate fund from his resources as the pre-emptor must in his pocket one-third of the sale price of the property sought to be pre-empted while approaching the Court.”
10. Undeniably, the learned trial Court vide order dated 13.06.2014 directed the petitioner/plaintiff to deposit Zar-e-Soim
Rs. 3,83,334/-within a period of 30 days but the petitioner deposited Rs. 3,83,333/-instead of Rs. 3,83,334/-. Under Section 24 of Act ibid the pre-emptor/plaintiff is required to deposit 1/3rd of the sale price of the property under pre-emption in the Court. The property under pre-emption was sold through oral sale mutation for a consideration of Rs. 11,50,000/-. The learned trial Court wrongly calculated the 1/3rd of the sale price (Zar-e-Soim) as Rs. 3,83,334/-instead of Rs. 3,83,333.3333/-. Although, under Section 24(1) of the Act ibid the Court is only required to direct the plaintiff to deposit 1/3rd of sale price (Zar-e-Soim) and the Court is not bound to mention specific amount of Zar-e-Soim. However, the learned trial Court had directed the petitioner/plaintiff to deposit a specific amount of Zar-e-Soim which petitioner/plaintiff was failed to comply with. The petitioner/plaintiff deposited less amount of Rs. 1/-in the light of direction of the learned trial Court and deposited less amount of 33 paisa in the light of sale amount as mentioned in the mutation. Section 24 (2) of Act ibid provide penal consequence for not depositing the Zar-e-Soim within a period of 30 days, by dismissal of the pre-emption suit but in the present case the less deposit is very meager amount i.e. 33 paisa as mentioned in the oral sale mutation and less Rs. 1/-in the light of order of learned trial Court. The petitioner/plaintiff deposited deficient amount due to bona-fide mistake as the law required for a deposit of 1/3rd of the sale consideration amount but the learned trial Court directed to deposit an amount with wrong calculation. Such a bona fide mistake or lapse in good faith on the part of petitioner deserved serious, earnest and compensate consideration as the Courts under obligation to decide the lis on merit rather as per technicalities. The August Supreme Court of Pakistan in reported judgment “Gul Usman and two others v. Mst. Ahmero and 11 others” (2000 SCMR 866) held as under:
“…….. if the appellants were able to deposit a sum of Rs. 4,000 less thirty paisas in compliance with the decree as amended by the High Court as far back as 1982 it cannot be conceived that they were defaulters in compliance with the decree of the Court to the extent of thirty paisas. Such a bona fide mistake or lapse in good faith on the part of the appellants deserved serious, earnest and compassionate consideration of the Courts below as well as a learned High Court who appeared to have laboured under misconception that the appellants by short deposit of thirty paisas disregard of the Court’s order even after availing of the fruits of a decree in suit for pre-emption. On our part, we are inclined to ignore and condone such delay in exceptional circumstances of the case which would be just, fair and equitable. Even otherwise this Court being the highest Court of law under the Constitution is empowered to pass any, order decree and issue any directive for the advancement of complete and substantial cause of justice, and procedural technicalities cannot restrain this Court in doing complete justice as ordained by Article 187 of the Constitution.”
11. In another case, whereby in a plaint the draftsman/lawyer inadvertently without any mala fide intend has mentioned the sale consideration as Rs. 14,00,000/-instead of 14,40,000/-and because of said mistake deposited less amount of Rs. 13,333.34/-the august Supreme Court of Pakistan in its judgment reported as “Wasal Khan and others v. Dr. Niaz Ali Khan” (2016 SCMR 40) held that where a Court wanted to impose a penalty like dismissal of suit on account of deposit of deficient amount, then it should be clearly established that it was the plaintiff who deliberately committed the default and it was not a bona fide mistake. The relevant portion is as under:
“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.”
12. In the light of above said dictums laid down by the august Supreme Court of Pakistan, my considered opinion is that the lapse on the part of petitioner/pre-emptor was a bona fide mistake as he made Zar-e-Soim round figure in a lesser side rather greater side because paisas (coins) are not counted now a days and he was not guilty of contumacious. Therefore, in the interest of justice and equity the mistake having occurred in the said case is required to be ignored and condoned for the advancement of complete and substantial cause of justice. It is also settled principle of law that procedural technicalities cannot restrain the court in doing complete justice.
13. The case law referred by the learned counsel for the respondent is not applicable to the facts and circumstances of the case.
14. In the light of above discussion, the instant civil revision is allowed and impugned judgments and decrees of learned Courts below are hereby set-aside. Resultantly, the suit of the petitioner deemed to be pending before the learned trial Court who shall decide it expeditiously and strictly in accordance with law. The parties shall appear before the learned District Judge, Faisalabad, on 21.02.2022 who shall entrust the case to a court of competent jurisdiction. No order as to cost.
(Y.A.) Civil revision allowed
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