' MUHAMMAD SAM ALI, J.---In his suit dated 30-4-2005 for possession through pre-emption filed against the petitioners to pre-empt the sale transaction incorporated in registered sale-deed dated 10-2-2005, the respondent/plaintiff pleaded the actual sale price of the land and its market value to be Rs,33 lacs as against the sale price of Rs,1 crore shown in the registered sale-deed.
Along with the suit, the respondent/pre-emptor also filed an application under section 24 of the Punjab Pre-emption Act, 1991 for determination of the "probable value"of the property for the purposes of deposit of 1/3rd of the sale price. Relying upon the material placed with this application (two sale-deeds and Aust Yaksala for the year 2004), the learned trial Judge, Gujranwala through a detailed order dated 2-5-2005 observed that the sale price shown in the sale deed was received at home and appeared to be exaggerated while plaintiff's pleaded value of Rs,33 lacs was also not believable. As such, the probable value was tentatively fixed at Rs,66 lacs without prejudice to its final determination in the decision of the suit.
2. The learned trial Judge in the above referred order directed the respondent/plaintiff to deposit Rs,22 lacs as 1/3rd of the probable value of the land by or before 31-5-2005 or otherwise to face the dismissal of the suit.
3. Against the above order dated 2-5-2005, the respondent filed C.R. No,112/2005 before this Court.
This civil revision was dismissed in limine through order dated 26-5-2005 with the following observations:-- "I ... See no perversity in exercise of the discretion by the learned trial Judge who deemed it appropriate on petitioner's application not to order deposit of 1/3rd of the amount of the sale price and instead proceeded to determine the provisional price at Rs,66,000,00 which was also made subject to the final determination at the time of final inquiry in the trial. It is court's discretion to hold a tentative inquiry that too on the basis of material presented by the petitioner. There is no jurisdictional error in exercise of the discretion which appears to have been validly and properly exercised by the learned trial Judge. In absence of any jurisdictional error or perversity, this civil revision is of course not maintainable. Furthermore, the order of the determination of the provisional price at Rs,66,000,00 is a provisional order and is not the decision of the subject in the trial, wherefor, this civil revision is further un-maintainable on this ground."
4. After decision of the above civil revision, the respondent/plaintiff paid a sum of Rs,22 lacs as 1/3rd of the probable value of Rs,66 lacs in terms of the learned trial Court's order dated 2-5-2005.
5. As per the order sheet of the learned trial court, the petitioners (defendants in the suit) avoided summons wherefor proclamation in the newspaper was published for 15-7-2005 when the petitioners appeared and made an application under section 151 of the Civil Procedure Code to seek re-determination of the probable value of the suit land. The respondent filed a contesting reply thereto. The learned trial Judge through order dated 20-2-2006 dismissed the application of the petitioners.
6. The petitioners/defendants have called in question the above referred order dated 20-2-2006 in this civil revision.
7. The learned counsel for the petitioners contended that the petitioners filed their application on coming to know of the order dated 2-5-2005 to seek a direction from the learned trial court for refutation of the probable value and the Zar-e-Soem on the basis of the sale price of Rs,1 crore mentioned in the sale-deed. Further stated that the probable value as fixed by the learned trial Judge through order dated 2-5-2005 and upheld by this Court in order dated 26-5-2005 passed in C.R.No,112/2005, was without notice to the petitioner/defendants and without a proper inquiry.
Reliance was - placed on the case of "Muhammad Akbar v. Muhammad Malik and another" (PLD 2005 Lahore 1) to contend that in the similar circumstances, an Hon'ble Bench of this Court, exercising constitutional and supervisory jurisdiction, ordered re-fixation of the probable value after hearing both the parties. The learned counsel for the petitioners also relied upon the cases of "Awal Noor v. District Judge, Karachi and 8 others" (1992 SCMR 746), "Habibullah Khan v. Amir Zaman and 9 others" (1995 SCMR 135) and "Abdul Wahid and others v. Sardar Ali and others" (2000 Law Notes (Lahore) 99) to contend that the court had no jurisdiction or discretion to fix a probable value when the sale price was mentioned in the sale deed.
8. Heard.
9. None of the cases above referred by the learned counsel for the petitioners reinforces the case of the petitioners. The principles settled in the cases of "Awal Noor v. District Judge, Karachi and 8 others" (1992 SCMR 746) and "Habibullah Khan v. Amir Zaman and 9 others" (1995 SCMR 135) were that:-
(a) Under section 24 of the N.-W.F.P. Pre-emption Act, 1987 (as then existing), if the sale price is not mentioned in the sale-deed or the mutation, the court will determine the probable value through a process of approximation;
(b) In absence of the sale-deed or the mutation or the statement of the sale price in the sale-deed or the mutation, the Court will determine the probable value on an inquiry of "the preliminary or summary nature" on the material obtained from the plaintiff and also from the defendant if he per chance appears;
(c) Zar-e-Soem has to be ordered by the court and deposited by the plaintiff up to 30th day from the filing of the suit;
(d) The Court has no power to direct deposit of Zar-e-Soem or any further amount thereupon beyond the statutory period of 30 days;
(e) First Proviso to section 24 ibid bars extension of time beyond 30 days by a positive command in the negative and a direction for payment of any additional amount beyond the prescribed period of 30 days is ultra vires the law and thus inconsequential; and
(f) An application seeking re-fixation or amendment in the probable value and Zar-e-Soem was an application for review under the restricted scope of section 114 read with Order XLVII of the Civil Procedure Code.
10. Both the above referred cases were decided by the Hon'ble Supreme Court of Pakistan to interpret unamended section 24 of the N.-W.F.P. Pre-emption Act of 1987. This section was though amended by N.-W.F.P. Pre-emption Act, 10 of 1992 through the substitution of Subsections (1), (2) and (3) thereof, but for the purposes of the present case, the amendments so made need no discussion.
11. The Hon'ble Supreme Court of Pakistan settled the law that Zare-Soem was to be deposited in 30 days from the filing of the suit and a court had no jurisdiction or discretion to extend the time on revision of the earlier order even to direct deposit of an additional amount thereto to make up the deficiency or otherwise.
12. In the present case, the petitioners through their application dated 15-7-2005 thus sought review of order dated 2-5-2005 which was upheld by this Court through order dated 26-5-2005.
Since the statutory period of thirty days had long elapsed, the Court had no jurisdiction or discretion to order further deposit of Zar-e-Soem by revision of its order dated 2-5-2005. Therefore, the application for refixation of the probable value and Zar-e-Soem was un-maintainable.
13. Furthermore, in view of the law laid down in the above judgments by the Hon'ble Supreme Court, the ground urged by the petitioners was that the learned trial Judge had no jurisdiction to determine the probable value of the property owing to expressly stipulated sale price of Rs,1 crore in the sale deed.
14. The learned counsel for the petitioners overlooked that the judgments in the cases of "Awal Noor v. District Judge, Karachi and 8 others" (1992 SCMR 746) and "Habibullah Khan v. Amir Zaman and 9 others" (1995 SCMR 135) interpreted the law as prescribed in section 24 of the N.-W.F.P. Pre-emption Act of 1987 which on the probable value provisions was not applicable to the cases in the Province of the Punjab Under the second Proviso to the unamend section 24 of N.-W.F.P. Pre-emption Act, 1987 or the first Proviso to the post 1992 amended Pre-emption Act, the court has been given the power to determine the probable value "provided that no sale price is mentioned in the sale-deed or in the mutation". Meaning thereby that under the N.-W.F.P. Act of 1987, the court has not been allowed jurisdiction as in the Punjab to determine the probable value when the price mentioned in the sale-deed or in the mutation appears to be inflated.
15. In the Province of Punjab, the under quoted second Proviso to section 24 of the Punjab Pre- emption Act, 1991 prescribes that: "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."
So under the above reproduced provision of the Punjab Preemption Act, 1991, the probable value of the property can be determined by the Court when:-
(i) No sale price is mentioned in the sale-deed; or
(ii) No sale price is mentioned in the mutation; or
(iii) The price mentioned in the sale-deed or the mutation appears to be inflated.
16. In each of the above three cases, the Court in the Province of Punjab is mandatorily required by the use of word 'shall' to determine the probable value of the property, to direct deposit of 1/3rd of such probable value within 30 days of the suit as per the first Proviso of Section 24 ibid.
17. The learned trial Judge thus had the jurisdiction to determine the probable value in summary/preliminary inquiry on the basis of the material placed before him by the respondent- plaintiff and also to provisionally opine that the price of Rs,1 crore (exchanged at home) as stipulated in the sale-deed was prima facie inflated.
18. The learned trial Judge considered the sale-deeds and Aust Yaksala produced by the respondent/plaintiff to approximate the probable value at Rs,66 lacs, also disbelieving the value of Rs,33 lacs pleaded by the respondent.
19. In the opinion of this Court, the learned trial Judge properly exercised his jurisdiction to hold the preliminary/summary inquiry on the material before him. As a result of this inquiry held on the first hearing of the suit, the respondent was validly directed to deposit the amount of1/3rd of the said probable value within the period of 30 days prescribed in the first Proviso to section 24 ibid.
20. For the determination of the probable value, the learned trial Court was not obligated under the second Proviso of section 24 ibid to hold a detailed trial within a trial and to hear the petitioners/defendants after a notice. A notice to the petitioners for a hearing in this preliminary inquiry had an innate and serious risk and almost a certain possibility to delay the determination process and the order of deposit of Zar-e-Soem beyond the statutory period of 30 days. As held by the Hon'ble Supreme Court of Pakistan in the case of "Awal Noor v. District Judge, Karachi and 8 others" 1992 SCMR 746 and "Habibullah Khan v. Amir Zaman and 9 others" 1995 SCMR 135, the court had no such jurisdiction to order the deposit of Zar-e-Soem beyond the prescribed thirty days period nor did it possess the power to extend such period. The whole process was thus to be completed in this short period of thirty days. In consonance with the wisdom and the intention of law, the Hon'ble Supreme Court of Pakistan defined the nature of inquiry for the determination of probable value was to be "preliminary and summary". The object was to enable the Trial Court to efficiently complete the process of approximation of the "probable value" and direction to the plaintiff to deposit Zar-e-Soem. Similarly it was also to ensure the plaintiff adequate period to plaintiff to make. Such deposit within the time capped thirty days. It therefore, naturally emanates from the principles in the above judgments that the defendants had no vested right of notice or a hearing. However if the defendants by then happened to be before the Court, their assistance could also be taken if it was so considered necessary by the Court. Also because under subsection
(4) of section 24 ibid, the probable value fixed at the initial stage of the suit was not to prejudice or affect the final determination of the price payable by the pre-emptor.
' It can thus be safely observed that the claim of the petitioners to notice and participation as a right, in the proceedings for the determination of "probable value" of the property, is contrary to the object, scheme and the purpose of law.
21. In consonance with order dated 26-5-2005 passed by this Court in respondent's C.R. No,1112- 2002, it is reiterated that the determination of the probable value on the basis of preliminary and summary inquiry in the present case, is not a "case decided-. The jurisdiction was validly, properly, fairly and justly exercised by the learned trial Judge. The impugned order does not suffer from arbitrariness, mis-exercise, excess of jurisdiction or material irregularity in the circumstances of the present case.
22. Furthermore dismissal of petitioners' application for review of the "probable value" and "Zar-e- Soem" in the absence of any of the conditions prescribed in section 114 read with section 47 (a) of the Civil Procedure Code is also not a "case decided". The learned trial Judge in fact had no jurisdiction to order any additional deposit of Zar-e-Soem beyond the period of 30 days from the date of the suit as was sought by the petitioners through their application. This civil revision is thus held to be un-maintainable.
23. Reliance of the learned counsel for the petitioners on the cases of "Abdul Wahid and others v.
Sardar Ali and others" (2000 Law Notes (Lahore) 99) and "Muhammad Akbar v. Muhammad Malik and another" (PLD 2005 Lahore 1) cannot be of any advantage to the petitioners. Humbly and respectfully stating that in the former case of "Abdul Wahid and others v. Sardar Ali and others"
(2000 Law Notes (Lahore) 99), irrespective of the comparative differences in section 24 of 1987 Act of N.-W.F.P. And 1991 Act of Punjab, the learned Court held that when the price mentioned in the sale deed or in the mutation appears to the court to be inflated, the process of approximation of the probable value can be adopted. In the later case of "Muhammad Akbar v. Muhammad Malik and another", extraordinary and supervisory constitutional jurisdiction of this Court was invoked under a set of circumstances different from that in the present case and also that the principles settled by the Hon'ble Supreme Court of Pakistan in the above referred cases were not the questions obtaining in the case.
24, In view of what has been discussed above, this civil revision is dismissed.