In this Constitutional petition, the petitioner has prayed for setting aside judgment dated .27.1.2005 passed by learned Addl. District judge, Rawalpindi.
2. Relevant facts for the disposal of this writ petition are that petitioner filed suit for possession through pre-emption against the respondents. On 22.7.2004 learned trial . Court directed the petitioner/plaintiff to deposit 1/3rd of the sale price within 30 days, However he failed to deposit the same within 30 days. Later on petitioner filed application for depositing 1/3rd of the sale price and his petition was allowed vide order dated 11.12.2004. The respondents/defendants filed revision petition thereagainst which was accepted vide judgment dated 27.1.2005. Hence this writ petition.
3. I have heard the arguments and perused the record.
4. As mentioned above petitioner/plaintiff had filed suit for possession through pre-emption against the respondents. On 22.7.2004 learned trial Court directed the petitioner to deposit 1/3rd of the sale price within 30 days but he failed to deposit the same. However on 23.9.2004 he submitted application for depositing the said amount and thereafter on 27.9,2004 he again submitted application and contended that on 22.7.2004 trial Court had not passed any order for deposit of 1/3rd and he came to know about the same on 31.7.2004. Learned trial Court accepted his application and allowed him to deposit 1/3rd of sale price. The copy of order dated 22.7.2004 shows that on that date (22.7.2004) trial Court had directed the petitioner to deposit 1/3rd of sale price within 30 days. As such there was no justification for granting him further time to deposit 1/3rd of sale price. Even otherwise trial Court had not jurisdiction to extend period for said deposit beyond 30 days of the institution of the suit. According to Section 24 of Punjab Pre-emption Act if plaintiff fails to deposit 1/3rd of sale price within the period fixed by the Court the suit would be dismissed.
Section 24 of Punjab Pre-emption Act reads as under:-- "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) Whether the plaintiff fails to make a deposit under sub-section (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 sub-section (1) shall be available for the discharge of costs.
(4) The probable value fixed under sub-section (1) shall not affect the final determination of the price payable by the pre-emptor."
So it is clear that trial Court had to dismiss the suit where deposit was not made within the time fixed by it, which time must not be beyond 30 days of the institution of the suit. So order dated 11.12.2004 passed by trial Court is not sustainable in the eyes of law and learned Addl. District Judge has rightly set aside the same. The order dated 27.1.2005 shows that learned Addl. District Judge has decided the revision petition brought by respondents after appraisal of entire material available on record. The impugned judgment is just and proper. Para No, 4 of the said judgment reads as under:-- "Perusal of record reveals that learned trial Court had directed the plaintiff/respondent to deposit `Zare-e-soem' within thirty days, as is quite evident from order sheet and which fact is also admitted by the respondent/plaintiff in his application filed on 23.9.2004. This application was filed after lapse of period required for deposit of `Zare-soem', and it appears that the respondent took a summersault and took up a plea that the Court did not pass. such an order while dictating the order in the. Court. The respondent could not be allowed to take such position when order was there and its existence was admitted in earlier application. Presumption of truth is attached with the proceedings of the Court and the order directing the respondent to deposit `Zar-e-soem', is very much there and there is nothing to believe that it was written by the learned Judge subsequently as is being tired to allege. The learned trial Court, therefore, could not allow the respondent to deposit `Zar-e-soem' by labeling- it knockout on technical ground as substantial rights had been accrued to the appellant by lapse of time fixed for deposit of `Zar-e-soem' within stipulated period. The impugned order, therefore, suffer from illegality. The Court has failed to exercise its jurisdiction in proper manner. The order cannot sustain in the eye of law. The impugned order is set aside and revision petition is accepted as prayed for."
It is well reasoned judgment. There is no illegality or infirmity in the impugned judgment, therefore, there is no justification to set aside the same.
5. The upshot of the above discussion is that this writ petition has no force and the same is accordingly dismissed in limine.