On 23-7-1998 a suit for possession through pre-emption was instituted by the petitioner qua the suit-land (description whereof was given in the pliant) that the transaction was indeed a sale and not exchange. The same day the learned trial Court ordered the petitioner/plaintiff to make deposit of Rs,45,334 i,e, 1/3rd of Rs,1,36,000 which was apparently in view of averments made in the plaint.
According to the learned counsel for the petitioner, the defendant/respondent entered appearance before the trial Court and filed written statement whereafter, on 13-10-1998 an application was filed by respondent No,1 that the petitioner/plaintiff had understated the value of the suit-land and order dated 23-7-1998 was procured through fraud and misrepresentation and that the petitioner/plaintiff be ordered to make deposit of 1/3rd of sum of Rs,71,96,292 which according to the respondent/defendant was the probable value of the land. On 2-12-1998 the learned trial Court ordered the petitioner/plaintiff to make deposit of Rs,8 lac as 1/3rd of the sale price of Rs,24 lac after deducting the amount which had already been deposited in the Court. Both parties felt aggrieved of the said order and assailed the same through revision petitions which were heard and decided by the learned Additional District Judge, Depalpur on 9-3-1999. By that judgment the revision petition filed by the petitioner was dismissed whereas that of respondent No,1 (defendant in the suit) was accepted ordering the petitioner/pre-emptor to make deposit of amount of Rs,21,55,000 as 1/3rd after deducting the amount of Rs,45,334 which had already been deposited by him. This judgment has been assailed through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
2. After stating the background in which the suit was filed and the orders were passed by the Courts below, it is contended by the learned counsel that once order dated 23-7-1998 had been passed by the trial Court, no further order could be passed' by it after expiry of thirty days in view of section 24 of Punjab Pre-emption Act, 1991. Reliance for this purpose has been placed upon Awal Noor v. District Judge, Karak and 8 others (1992 SCM R 746). It is contended that the learned Additional District Judge, Depalpur who acted as a revisional Court could not substitute his own probable value of the suit-land which was not even the case of the other side. Inconsistencies in the judgment of the learned Additional District Judge, Depalpur are sought to be pointed out to contend that in passing such an order, the Court acted wholly without jurisdiction. According to him, the order was based on conjectures and assumptions and was not sustainable in law. The learned counsel for respondent No,1 in support of the order of the Courts below has cited Muhammad Din v. Mehboob Khan and 3 others (1993 SCM R 2325) to contend that where the order for deposit of 1/3rd was the result of misrepresentation, the Court could lawfully pass order even after the expiry of thirty days. According to him, writ petition against revisional order of the lower Court was not maintainable particularly when there was no jurisdictional defect in passing such an order. Reference in this context has been made to Noor Muhammad v. Sarwar Khan and 2 others (PLD 1985 SC 131) and Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others (1991 SCM R 970). It is further contended that the petitioner who had suppressed material facts and had not approached the Court with clean hands, was not entitled to relief under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
3. The respective contentions have been considered in the light of the material on the record. The perusal of the plaint would show that the value disclosed therein in particular paragraphs 3, 5 and 7 was Rs,1.36,000. The trial Court was, thus led to pass order dated 23-7-1998 whereby the petitioner/plaintiff was ordered to make deposit of Rs,45,334 as 1/3rd of the same this certainly was an order passed in the absence of the defendant/respondent who had yet to enter appearance and had the right to object to the correctness and legality thereof. It was in such context that the respondent/defendant made application before the trial Court on 13-10-1998 that the earlier order passed by the Court was result of misrepresentation and order for making deposit of 1/3rd of Rs,71,96,292 be made which according to the defendant/respondent was the probable value of the land. It was pointed out in that application that the petitioner/plaintiff had himself stated the value of the land as Rs,24 lac in the notice of Talb-e-Ishhad and was estopped to take any contrary stance. Such a plea prevailed with the Court to the extent that the petitioner/plaintiff had to make deposit of Rs,8 lac as 1/3rd of Rs,24 lac. It was at the same time observed that "the deposition of 1/3rd has to be determined after recording evidence of the parties." In such circumstances when the order dated 23-7-1998 had been passed by the Court in absence of the defendant/respondent, the Court was fully justified to pass a fresh order in view of Muhammad Din v. Mehboob Khan and 3 others (1993 SCM R 2325) wherein such a plea (as has been raised by the learned counsel for the petitioner in this case) was repelled observing that "The order as to the deposit of sale price in the Court having been made in the absence of the respondents would be presumed to have been passed subject to their objection. In any case, the order having been obtained by the petitioner by practicing fraud on the Court, the latter was under obligation to recall the same." This being the later view of the Honourable Supreme Court of Pakistan than that of in Awal Noor's case will be attracted to the facts and circumstances of the present case. The trial Court, thus, was not denuded of the power to recall or vary an order which had been obtained from it by suppressing the material facts. The contention of the learned counsel for the petitioner in that context is untenable and is to be repelled.
4. . Insofar as the order passed by the learned Additional District Judge, Depalpur is concerned, suffice it to observe that while dismissing the revision petition filed by the petitioner, it proceeded to observe that the revision petition was devoid of force and "does not call for any interference in the order of the learned trial Court to the extent of assessing the sale price as Rs,24,00,000 of the suit- land as per admission of the revision petitioner". The revision petition was accordingly dismissed with costs. However, while dealing with the revision petition of the respondent/defendant, the Court adopted a different approach altogether and proceeded to assess the value of the land with reference to the stamp duty paid by the respondent/defendant and, thus, making its assumed calculation the probable value of the suit property was determined at Rs,64,65,000 ordering the petitioner/pre-emptor to pay Rs,21,55,000 as 1/3rd after deducting the amount of Rs,45,334 already deposited by him. I do not consider it appropriate to make any further comment and would refrain from making any observation about the criteria so adopted by the learned revisional Court except to observe that the single order by which the two revisions against the one order of the trial Court were disposed, was fraught with inconsistencies and contradictions apart from the fact that it was based on mere assumptions and conjectures. Needless to observe that the Court was obliged to keep in view the respective stances of the parties (as pleaded by them) even in making prima facie assessm ent of the probable value of the property. There is no valid and cogent basis for such an order, rather it runs counter to what was observed in paragraph 7 of the judgment. Such self- contradictory disposition of the matter cannot be countenanced.
5. The contention of the learned counsel for respondent No,1 that the writ petition should be dismissed as incompetent against revisional order, has in the peculiar circumstances of the case not impressed me. The precedents cited by him cannot be construed to sanctify an order of the revisional Court which may be wholly illegal arbitrary or whimsical in nature. The order passed by the learned Additional District Judge, Depalpur on 9-3-1999 can hardly sustain in law. The same is, thus, to be declared as of no legal effect. The result would be that the revision petitions filed by both sides qua the order dated 2-12-1998 of the learned trial Court would be deemed pending before the revisional Court which need to be heard and decided in accordance with law. The writ petition is accepted in the above terms and is disposed of accordingly with no order as to costs. In order to avoid further delay in the matter, the parties are directed to cause their representation before the learned Additional District Judge, Depalpur on 13-9-2004 by which date the office will ensure the transmission of the records.