2024 MLD 2013
It is mandate of the law that once a suit for pre-emption is instituted and an application is also filed for determining the tentative price for the purpose of depositing zar-e-soem, an inquiry/probe is to be made which in the present cases, the learned Trial Court decided not to conduct and passed a direction to deposit zar-e-some on the basis of the amount recorded in the sale deeds that are registered documents having presumption of truth attached to them unless the same are cancelled by the competent authority.
Writ Petition No.43399/2021 Muhammad Saleem Versus Additional District Judge, etc.
2024 MLD 2013
It is mandate of the law that once a suit for pre-emption is instituted and an application is also filed for determining the tentative price for the purpose of depositing zar-e-soem, an inquiry/probe is to be made which in the present cases, the learned Trial Court decided not to conduct and passed a direction to deposit zar-e-some on the basis of the amount recorded in the sale deeds that are registered documents having presumption of truth attached to them unless the same are cancelled by the competent authority.
Writ Petition No.43399/2021 Muhammad Saleem Versus Additional District Judge, etc.
It is settled principle of law that procedural rules should be so interpreted and applied that justice may be handy and quickly available.
2024 MLD 2013
It is admitted feature of the case that in the suits for pre-emption, followed by filing of applications for ascertaining the price for the purpose of depositing zar-e-soem, the pre-emptor was directed to deposit zar-e-soem in terms of the amounts recorded in the sale deeds while the applications remained pending and the said order to deposit zar-e-soem was complied with and the amount so deposited was invested in various investment schemes at the specific request of the pre-emptor. The order having been acted upon, if allowed to be reopened, it will not put an end to the litigation, which is not the object of law. It is settled principle of law that procedural rules should be so interpreted and applied that justice may be handy and quickly available. It is also admitted feature of the case that the issues have already been framed, which, inter alia, include issues regarding the ascertainment of the price.
Writ Petition No.43399/2021 Muhammad Saleem Versus Additional District Judge, etc.
2024 MLD 2013
Needless to mention that as per mandate of the applicable law, as envisaged under Rule 2 of Order XIV, CPC, where issues, both of law and fact, arise and the Court is of the opinion that it should dispose of the issues of law only, it is obligatory for it to try the same first and for that purpose, the Court may, if it deems appropriate, postpone the settlement of issues of fact until the issues of law have been determined, however, if the decision is required on issues of law and the Court is called upon to record evidence of the parties, even in such eventuality, such legal issues should be decided alongwith the remaining issues on facts. Having above legal position in sight, it is observed that in the cases in hand, soon after the settlement of the issues, the pre-emptor did not make any such request rather acted upon the direction of the Court to deposit the amount of zar-e-soem as per the amount recorded in the sale deeds executed in favour of the petitioners, rendering his pending applications filed prior to framing of issues infructuous, and hence, estopped to agitate the same. Needless to mention that being factual in nature, issues No. 3 and 4 cannot be decided in isolation with the remaining issues which are even more pertinent and goes to the root of the lis as the same relate to the talbs purportedly exercised by the preemptor, in accordance with law. It is only once the said burden is discharged by the pre-emptor/plaintiff and the Court reaches the conclusion that a case of pre-emption has been setup, then the Court is required to proceed and determine the sale price in terms of Section 24(4) of the Act. Decision regarding the ascertainment of the price at this stage by way of decisions on issues No.3 and 4 will make exercise of power/duty of the Court under Section 24(4) redundant.
On a pointed question as to the scope of Section 24(4), which becomes redundant if the decision on issues No.3 and 4 is rendered in the first instance, learned counsel for the pre-emptor could not offer any plausible argument to refute the same. It is pertinent to observe that determination of probable value under proviso to Section 24(1) of the Act is only tentative in nature that is to be made on the basis of available record or any preliminary probe without recording of evidence and before direction is passed to deposit zar-e-soem and cannot be equated with the determination, which is to be made after framing of issues and recording of evidence that falls under the purview of Section 24(4) of the Act. Suffice to observe that the former determination can be made even though the right of the pre-emptor is yet to be established whereas the latter determination is to follow the establishment of right of pre-emption and if a pre-emptor/plaintiff fails to establish his right, the determination under Section 24(4) of the Act is not required to be made. Therefore, this Court is of the opinion that in the instant case, stage of determination of probable value under proviso to Section 24(1) of the Act has gone by and acted upon and even the consent of the petitioners/defendants cannot rewind the clock and any determination while deciding issues No.3 & 4 prior to establishment of right of the pre-emption amounts to putting a cart before the horse.
Writ Petition No.43399/2021 Muhammad Saleem Versus Additional District Judge, etc.
2024 MLD 2013
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