MUHAMMAD MUZAMMAL KHAN, J.--This Constitutional petition assails judgment and decrees dated 18-11-2002, 22-5-2003 and 17-9-2003 passed by the learned Civil Judge and learned Additional District Judge, Jhang, decided lis against the petitioner.
2. Precisely, relevant facts are that petitioner filed a suit for possession through pre-emption against the sale of 8 kanals, 18 marlas of land, effected vide mutation No. 1208 dated 21-6-2002 for an amount of Rs. 100,000/-. Petitioner claimed his superior pre-emptive right being "Shafi Sharik', `Shafi Khalit' and Shafi Jar' and asserted In his plaint that he has performed the requisite "talabs' in terms of Section 13 of the Punjab Pre-emption Act, 1991. This suit was filed on 17-8-2002 and on the same day was put up before the learned trial Judge, who directed the petitioner/plaintiff to deposit an amount of Rs. 33,334/- (One third of the sale price) within a period of 30 days, which was deposited by him on 7-9-2002, within the period allowed by the trial Court.
3. Respondents being defendants in the suit appeared before the trial Court and filed their written statement contesting the suit. It appears from the interim orders that from 17-8-2002 suit was adjourned to 21-9-2002 for summoning of the respondents/defendants, but on this date the Presiding Officer was busy in election duty, thus the suit was ordered to be adjourned to 26-10- 2002, on which date learned counsel appearing on behalf of the respondents/defendants filed his power of attorney and case was adjourned to 18-11-2002, on which date the suit was dismissed under Section24(2) of the Punjab Preemption Act, 1991. Petitioner after dismissal of his suit filed an application for revival of the suit with the averments that he had already deposited one-third of the sale price under the order of the Court on 7-9-2002 and thus dismissal of suit was not warranted and the same may be ordered to be revived. This application of the petitioner was dismissed on 22-5-2003 by the learned trial-judge taking the view that receipt for deposit of one-third of the sale price was not produced on three consecutive dates and thus plaint was rightly rejected under Order VII, rule 11 CPC. Thereafter, petitioner filed a revision petition before the learned District Judge, but remained unsuccessful as the same was dismissed on 17-9-2003. Petitioner thereafter filed the instant Constitutional petition seeking findings of both respondents No. 1 and 2 to be declared illegal, void and of -no legal consequence. In response to notice, respondents No. 3 to 11 are represented through their counsel.
4. Learned counsel for the petitioner submits that the petitioner had complied with the orders dated 17-8-2002 by depositing an amount of Rs.. 33,334/- in the treasury through a challan dated 7-9-2002, copy of which has been appended with the petition and as such, order impugned was absolutely illegal and unauthorized. He further submits that respondent No. 2 never required the petitioner to produce the deposit receipt in Court, as such, the same could not be brought on the record before the order dated 18-11-2002 and in this manner he claimed that respondent No. 2 acted illegally and without jurisdiction. He further elaborates his arguments by saying that petitioner has been condemned unheard because he was never asked to show proof of deposit, default of which has been attributed to him and consequently claimed that orders challenged in the petition in hand are opposed to principles of natural justice.
5. Learned counsel appearing on behalf respondents Nos. 3 to 11 refuted the assertions of the petitioner , supported the judgments/orders of respondents No. 1 to 2 and urged that the petitioner was required to deposit one third of the sale price by the trial Court and he after deposit of it, was required to furnish proof of the deposit, which he failed to do and was accordingly rightly proceeded against. He further contends that order dated 1811-2002 is under Order VII rule 11 CPC having the force decree and was appealable under Section 96 of the CPC. No such appeal was filed and instead a miscellaneous application was presented to the trial Court, which could not have been entertained and was correctly rejected.
6. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Petitioner was required by the trial Court to deposit an amount of Rs. 33,334/- being one third of the sale price, within a period of 30 days under Section 24(1) of the Punjab Pre-emption Act, 1991. He undeniably deposited this amount in the treasury after getting approval of challan forms from the learned trial Judge on 7-9-2002. In this manner, petitioner had complied the order dated 17-8-2002. The only thing which requires to be determined in this case is as to whether on account of non-furnishing of receipt to the trial Court, suit of the petitioner could have been dismissed under Section 24(2) of the Act ibid. For convenience and ready reference, Section 24 of the Act ibid, is reproduced as below:- "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 subsection (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 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 preemptor".
From a bare reading of the above reproduced provision of law, it is obvious that in case of default of the petitioner, in deposit of the amount required to be deposited, he was to be proceeded under the provision of sub-section (2) of the above section and not under Order VII, rule 11 CPC.
Subsection (2) of Section 24 of the Act ibid. Equips the Court with the power to dismiss the suit of the plaintiff in case he fails to make a deposit under subsection (1) within the period fixed by the Court. Deposit having been made as referred above, penal action under subsection (2) could not have been taken against the petitioner. It is practice and a logical damand of the law, as well, that Courts normally require the plaintiff to produce receipt showing deposit as ordered by them. In the instant case, on none of the three dates fixed, petitioner was required to place on file the deposit receipt. Record shows that petitioner was not asked whether he has done the needful or not, even on the date on which his suit was dismissed. Rather it appears that his suit was dismissed on 18-11- 2002 in his and his counsel's absence, meaning thereby that petitioner had no notice of dismissal of his suit on account of non-deposit of one-third of the sale price and in this manner it has rightly been argued on his behalf that order passed by the learned trial Judge is violative of the law, as well as, principle of natural justice.
7. Undeniably, order dated 1.8-11-2002 was appealable , but no appeal thereagainst was filed. This order on the first hand, was passed in absence of the petitioner and his counsel and on the other hand, it was patently illegal and void and it was flouting on the face of the record. The miscellaneous application filed by the petitioner before the trial, Court was in form of a review which fulfilled all the prerequisites of Section 114 and Order XLVII, rule 1 CPC. Under these provisions of law, respondents No. 1 and 2 had jurisdiction to undo the error apparent on the face of the record , but they, fell into elusions in dismissing cause of the petitioner without any just cause or reason.
Entire emphasis of respondents No. 1 and 2 was that petitioner did not produce the deposit receipt, which for the reasons noted above, is without any lawful basis/ substance. Besides inherent powers of a Court to set right the record and to do complete justice between the parties, ignoring even their review powers, under the general principles known for administration of justice they had power to rescind their own illegal and void orders. Reference in this behalf can be made to the alighted judgment of the Honourable Supreme Court in the case of The Engineer in. Chief Branch through Ministry of Defence, Rawalpindi and another Vs. Jalaluddin (PLD 1992 SC 207).
8. For what has been discussed above, I am constrained to hold that all the three judgments/orders dated 18-11-2002, 22-5-2003 and 17-9-2003 passed by respondents Nos. 1 and 2 are illegal, void, unauthorized and contrary to law and as such this petition is allowed and writ as prayed is issued, annulling all the three orders, with the result that suit of the petitioner shall be deemed to be pending before the trial Court and shall be decided in accordance with law. No orders as to costs. .