' This is a revision petition against the judgment of Additional District Judge-I, D.I. Khan whereby the learned Court has accepted the appeal of the present respondent, set aside the order of the learned trial Court and remanded the case to the Court of Civil Judge for further proceedings.
2. In the background of this revision petition is a suit filed by Haji Muhammad Iqbal plaintiff (now respondent) for enforcing his right of pre-emption with regard to sale of property measuring two Kanals, 10 Marlas situated in Mouza Gara Jamal sold to the vendee (present petitioner). The suit was instituted on 3-6-2003 and it was entrusted to learned Civil Judge-IV, D.I. Khan. On 4-6-2003 the summons was ordered to be issued to the defendant for 19-6-2003 along with a notice for temporary injunction and the order of the status quo. On the reverse of the order sheet, there is a direction that the plaintiff should deposit 1/3rd amount stated in the registered deed/mutation before the date fixed. On 19-6-2003 the learned Court dismissed the suit of the plaintiff for non- deposit of the pre-emption amount before the date. The plaintiff filed an appeal to the learned District Judge stating therein that the order for the deposit of pre-emption money on the overleaf of the order sheet was not recorded in the presence of the plaintiff and his counsel which was added later on and therefore, the plaintiff has been condemned without knowledge and that he could not be held responsible for the act of the Court. Along with this memorandum of appeal, an affidavit by a senior Advocate was also furnished stating that the portion of the order on the overleaf was a latter addition and not within the notice or knowledge of the plaintiff. The learned Additional District Judge-I, D.I. Khan passed an order on 24-6-2003 directing the plaintiff/appellant to deposit 1/3rd of the amount mentioned in the registered deed and mutation before 19-7-2003 and in compliance therewith, the plaintiff deposited the money within the next two days i.e. On 26- 6-2003. Later on vide impugned order, dated 24-11-2003, the appeal was accepted and the order of dismissal of the suit was set aside and the case was remanded to the trial Court for decision of the case on merits. The parties were directed to appear before the learned trial Court on 10-12- 2003. This order has been challenged in the present revision petition.
3. The learned counsel for the petitioner argued that the plaintiff/ pre-emptor, under the N.-W.F.P.
Pre-emption Act, 1987, is required to demonstrate extra care and vigilance because the facilities and concessions available to him in the earlier legislation are no more available and therefore, he had to be alert to the consequences of section 24 of the Act and that the Appellate Court had no jurisdiction under the present law to extend the time and therefore, by placing reliance on an irrelevant judgment of Lahore High Court, the learned lower Appellate Court has exercised the powers not vested in it. Hence it was argued that the failure of the plaintiff/pre-emptor to deposit the money within time has vested the vendee/defendant with a valuable right and that could not be defeated by an order without jurisdiction.
4. Learned counsel for the respondent explained that the affidavit furnished by a senior member of the bar along with the memorandum of appeal provided sufficient proof about the order of the Court passed on 4-6-2003 to the extent of issue of summons, notice and the order of status quo but that the order on the overleaf was a subsequent action without the knowledge or information of the plaintiff/pre-emptor or his counsel. He pointed out that the present petitioner had not controverted the said affidavit by filing a counter-affidavit and that under the general practice, no person can be penalized for the act of a Court. The learned counsel further pointed out that the suit was instituted on 3-6-2003 and the payment was finally made under the orders of the Additional District Judge on 26-6-2003 which indicated the bona fide of the plaintiff/preemptor to implement the orders of the Court and to lead the suit to a successful conclusion.
5. Section 24 of the N.-W.F.P. Pre-emption Act, 1987 provides that:-- "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 if no sale price is mentioned in the sale-deed or in the mutation, the Court shall require the deposit of one-third of the probable value of the property.
(2) where the plaintiff fails to deposit one-third of the sale price or the probable value of the property within the period fixed by the Court, his suit shall be dismissed."
' Although this section stipulates harsh conditions for the plaintiff/preemptor as compared to the earlier provisions of the Pre-emption Act, 1950 inasmuch as the power of extension in the period for deposit of money has not been provided and the consequences of non-deposit was the rejection of plaint earlier and the Appellate Court was also vested with the power to extend time but in the present law, neither there is a provision for power to extent time by the original Court as well as the Appellate Court nor the failure to deposit results in the rejection of plaint but under section 24(2) the suit has to be dismissed. This is a harsh provision of law with a purpose to avoid the mala fides of the preemptors to prolong the pre-emption suits by exercise of various delaying tactics. Since the right of pre-emption is considered to be a feeble right as it adversely affects the right of property vested in the owner as well as of the purchaser by giving a predominant right to another person and therefore, the legislation has stipulated strict procedure for the potential pre-emptor.
However, it is the responsibility of the Court to analyze the attitude of the pre-emptor whether a particular suit was being delayed merely to disturb the vendee and without having the resources to preempt. In the present case, it is not a case of intentional default in the deposit of money. To meet the ends of justice, the Courts are bound to keep in view the entire aspects for the determination of the real intention of the pre-emptor. It is not the case of the present respondent that he could not arrange the money or that he was not vigilant enough to deposit the money in time and by the time he reached the Court or the Bank, the time was already over. In this case, an entirely different version is put forward that the order of the deposit of the pre-emption money was not passed in the presence of the pre-emptor and the portion written earlier was fully signed and later on, on the reverse of the page, an additional sentence was added by deleting the earlier signature. Therefore, the case of the pre-emptor was that he did not have the knowledge of the additional sentence written after he and the counsel had left the Court room. In such a situation, it is not a case of wilful default, rather it is a case of lack of knowledge and the consequences of the act B of Court and the learned First Appellate Court has rightly interfered to protect the rights of the pre-emptor.
6. It is also worthwhile to note that in the original Act of 1987, it was provided that the period for the deposit of the pre-emption money shall "not extend beyond 30 days of filing of suit" but by an amendment of 1992, the said proviso was deleted which indicates the intention of the legislature not to restrict the period of deposit of the money to 30 days. Normally, as a matter of practice, the Courts prescribed a period of 30 days or more for the deposit of pre-emption money and in the instant case, the suit was filed on 3-6-2003 and the Court took cognizance of the matter on 4-6- 2003 but it appears that the date of 19-6-2003 was fixed for the notice of the application for temporary injunction and since the status quo order was passed, therefore, the case was adjourned for 15 days. Later on when it was noticed that the order for deposit of preemption amount has not been made, an additional sentence was recorded and the date was not changed.
Period of 15 days is normally insufficient for the deposit of pre-emption money and the repealing of the proviso of restricting the, period of 30 days for this purpose indicates the intention of the Legislature that the Courts should be liberal in providing an opportunity to the plaintiffs/pre- emptors for the deposit of money keeping in view the amount required to be deposited. Hence the fixation C of the date of 15 days also indicates that the latter part of the order was an addition and not a portion of the original order recorded because otherwise, the period of at least 30 days, as has been done by the learned Additional District Judge in her order dated 24-6-2003, would have been followed. The pre-emptor has deposited the money within 20 days of the filing of the suit which indicates his bona fides and he cannot be non-suited on mere technicalities.
7. The contention with regard to a particular question of fact, by the present pre-emptor while filing memorandum of appeal with the learned District Judge, was supported with an affidavit and unless such affidavit is controverted by a counter-affidavit, it had a lot of persuasive force. The learned counsel for the petitioner referred to Order XIX, C.P.C. To argue that the affidavits can be filed only on the direction of the Court and since the petitioner was not asked to file a counter- affidavit, he was not required to do so. The said provisions of the C.P.C. Relate to the production of affidavit for the proof of certain facts in the evidence of the parties and it did not relate to the affidavit of the nature supporting the fact for appeal. The arguments of the learned counsel with regard to the powers of the Court of appeal are also without force. Under the previous law, there was certainly a provision for the extension of time but it is not available in the present law which means that the Legislature had not intended to vest the Appellate Court with such powers.
However, as stated hereinbefore, it is not the case of extension of time rather it was the case of penalizing a party for an act of the Court and without notice and knowledge of the order passed after the close of file. Since C.P.C. Is applicable to the pre-emption cases under section 34 of the Pre-emption Act, therefore, the Appellate Court has all the powers vested in the Court of appeal for rectification of an illegality, providing relief to the person suffered for misappreciation of law and particularly for correcting the irregularities committed by the original Courts. An order passed within 15 days of the institution of suit and that D too, creating reasonable doubts about the veracity, of that part of the order which was recorded at the reverse of the order sheet by crossing the earlier signature, the Appellate Court was quite justified to notice the irregularity and to rectify the same. It may also be recorded that the order dated 24-6-2003 whereby the amount was allowed to be deposited, has not been challenged and the challenge of the order of remand dated 24-11-2003 is again a major defect in the revision petition.
8. Consequently, the petition fails which is hereby dismissed. Parties to bear their own costs.