' SALIM KHAN, J.--- A suit was instituted by Mian Said Usman against Toti Mian and Mian Muhammad for possession of the property mentioned in detail in the plaint, through pre-emption.
The suit was instituted on 30-5-2006 through counsel. It was processed on the same date and was put up for hearing before the Court on that date. The learned original Court recorded that counsel for the plaintiff was present who supported the plaint. It was ordered that the plaint be registered.
The learned original Court further directed that one third of "Asul-Zar-eShufa" be deposited within thirty days. Those thirty days were to come to an end on 29-6-2006. The case was fixed for further hearing on 13-7-2006. The plaintiff and defendant No,1 were present on the said date and defendant No,1 requested for adjournment for submitting written statement, while order for substituted service was issued against the defendant No,2. It was on 28-7-2006, the next date, that the suit of the plaintiff was dismissed on the ground that he had not deposited 1/3rd of "Raqam- Zar-e-Shufa". That order was issued on the basis of application dated 17-7-2006 of defendant No,1 with a request for dismissal of the suit on the basis of non-deposit of the pre-emption amount.
Aggrieved by the said order, the petitioner went on appeal which was also dismissed on 12-8-2006.
Hence this petition.
2. The learned counsel for the petitioner contended that the words "Asal Zar-e-Shufa" were used in the original order which confused the plaintiff and the act of the Court shall not prejudice the parties. He referred to 1994 MLD 319, 1995 CLC (sic) and 2000 CLC 1815 in this respect. He further contended that it was mandatory for the Court to fix the probable value of the property as the amount mentioned in the sale-deed and in the plaint was different, and the order of dismissal of the suit without fixing the probable value was void ab initio.
3.. It was the duty and responsibility of the learned counsel for the petitioner to have informed the petitioner about the order to deposit 1/3rd of the actual pre-emption amount. The counsel has been shown present at the time of admission of the suit. It was argued that the learned counsel has filed an affidavit to the effect that he was not present. Mere submission of an affidavit does not absolve an Advocate of his responsibility. The plaintiff by himself was also present on 13-7-2006. It was the responsibility of the plaintiff and his counsel to ascertain about the order of deposit of pre- emption amount on 30-5-2006 or any other subsequent date, which they failed to perform.
4. The learned counsel for the petitioner referred to the proviso to subsection (1) and subsection (5) of section 24 of the N.-W.F.P. Preemption Act, 1987, and contended that it was the responsibility of the Court to fix the probable value of the property. The probable value of the property is to be fixed by the Court only when no sale price is mentioned in the sale-deed or in the mutation. In fact, there was a sale deed mentioned by the plaintiff in his plaint and an amount of rupees five lacs was entered in that deed. It is not the claim of the plaintiff, rather the entry in the sale-deed, which is the "Asal 'Zar-e-Shufa" for the initial stages of proceedings in a pre-emption case.
5. There is nothing on record to show that the plaintiff or his counsel have ever requested the Court to clarify the order dated 30-5-2006, or to request to issue an independent clear order, if that order was not clear to the plaintiff.
6. Mere failure to deposit 1/3rd of the pre-emption amount and making excuses for the same are no good grounds.
7. I find no merit in the present civil revision petition which is hereby dismissed in limine.
Revision .