1. ' This petition for Revision arises out of a suit for possession by preemption of agricultural land, situate in the area of Mahal Hero Shah. The land was sold by one Nauroz to Sharifullah by means of a sale deed dated 31-3-1978, for an ostensible sum of Rs, 3,500. The sale was pre-empted by Mumtaz Khan (respondent No, 1) who, on the 16th of July, 1978, instituted a suit for possession by pre-emption of the land in the Court of Civil Judge, Dargai. The plaintiff was required to deposit in Court a sum of Rs, 1,000 as pre-emption money before 22nd of July, 1978. He, however, failed to deposit the amount within the time so fixed. The Court, instead of passing an order of rejection of the plaint, passed an order of the dismissal of the suit on 22nd, July 1978.
2. ' The pre-emptor did not appeal against the order rejecting the plaint and instead, instituted another suit for possession by pre-emption on the 25th of July, 1978. The suit was vigorously contested by the vendee. It is unnecessary to notice here the pleadings of the parties or all the issues which were framed by the Civil Judge with reference to those pleadings as the only practical issues which have survived for decision in the present revision and which were argued before me by the learned counsel and on which the fate of the Revision hinges are issues 2 and 3 which are as follows :-
(2) Whether the plaintiff has a cause of action ?
(3) Whether the plaintiff is estopped to bring the present suit ?
3. ' The trial Court, after having observed that the previous suit for pre-emption had been dismissed under section 23(4), Pre-emption Act, proceeded to hold, on the authority of Ram Lal v. Roshan Lal and others (1) that the rejection of plaint or the dismissal of suit under section 23(4) which corresponds to section 22(4) of the Punjab Pre-emption Act, 1913, amounts to a decree and would be, therefore, appealable as a decree. Having held so, the Court added that the plaintiff's suit having been dismissed for his failure to deposit the pre-emption money within the time fixed by it and he having not appealed against that dismissal, was not only precluded, but was also estopped, from bringing another suit for pre-emption. In view of these findings, the Court answered issue No, 1 in the negative and the other issue in the affirmative and consequently, by its judgment and decree dated 30-11-1978, dismissed the plaintiff's suit with no order as to costs. On appeal, the District Judge found that rule 11 of Order VII, Civil Procedure Code, was not exhaustive and relying on a decision of the Lahore High Court in the case of Mst. Kaniz Fatima v. Member (Revenue), Board of Revenue (2) held that the rejection of plaint for non-deposit of preemption money did not preclude the plaintiff from bringing another suit for pre-emption on the same cause of action nor would the plaintiff's failure to challenge the order of the rejection of plaint by way of appeal attract the rule of estoppel against him. He, vide his judgment dated 23-4-1979 accepted the appeal, set aside the judgment and decree appealed against, and granted the plaintiff a decree for possession by pre- emption on payment of Rs, 3,500 against the defendant-vendee with costs.
(1) A 1 R 1947 Lah. 302 (2) PLD 1973 Lab. 495 ' The vendee has preferred the present Revision petition and Abdur Rehman Khan, Advocate on his behalf has urged :-
(1) That the order dated 22-7-1978 passed by the Civil Judge was an order of the dismissal of suit and was appealable as a decree ; and
(2) that even if the order was treated as one of rejection of plaint, it would preclude the plaintiff from presenting the present plaint in respect of the same cause of action.
4. ' Support for these contentions was sought from a decision reported as AIR 1947 Lah.
5. 302.
6. ' Before I proceed to deal with the merits of the contentions raised on behalf of the petitioner, I would like to reproduce section 23 of the North-. West Frontier Province Pre-emption, Act, 1950, for, reference to some of its provisions would be necessary. The section reads :- "23.-(1) In every suit for pre-emption the Court shall at, or at any time before, the settlement of issues require the plaintiff to deposit in Court such sum as does not in the opinion of the Court, exceed the probable value of the land or property, or require the plaintiff to give security to the satisfaction of the Court for the payment, if required, of a sum not exceeding such probable value within such time as the Court may fix in such order.
(2) In any appeal the Appellate Court may at any time exercise the powers conferred on a Court under subsection (1). -
(3) Every sum deposited or secured under subsection (1) or subsection (2) shall be available for the discharge of costs.
(4) If the plaintiff fails within the time fixed by the Court or within such further time as the Court may allow to make the deposit or furnish the security mentioned in subsection (1) or (2) his plaint shall be rejected or his appeal dismissed, as the case may be.
(5) (a) If any sum so deposited is withdrawn by the plaintiff, the suit or appeal shall be dismissed.
(b) If any security so furnished for any cause becomes void or insufficient, the Court shall order the plaintiff to furnish security or to increase the security, as the case may be, within a time to be fixed by the Court, and if the plaintiff fails to comply with such order, the suit or appeal shall be dismissed.
(6) The estimate of the probable value made for the propose of subsection (1) shall not affect any decision subsequently come to as to what is the market value of the land or property."
7. ' This section reproduces with a very slight modification, the provisions of section 22 of the Punjab pre-emption Act, 1913 which in turn reproduces with some important modifications, the provisions of section 16-A of the Punjab Laws Act. It is intended to guard against vexatious and mala fide suits.
8. Subsection (1) makes it obligatory on the Court to see that the plaintiff in a pre-emption suit deposits in Court the sum of money not exceeding the probable value of the land or property to be pre-empted, or gives such security as the Court thinks fit for the payment:, if necessary, of a sum of money not exceeding such probable value. Under this subsection, it is also imperative for the Court to fix the time within which the deposit must be made or the security must be furnished. The order, requiring deposit or security, must be complied with within such time as the Court may fix in this behalf. The words "within such time as the Court may fix "do not, however, preclude the Court from passing orders from time to time extending the period originally fixed by it. Subsection (4), no doubt, provides that if the plaintiff fails within the time fixed by the Court or within such further time as the Court may allow to make the deposit or furnish the security under subsection (I) or (2) his plaint shall be rejected or his appeal dismissed, as the case may be. In one sense, this provision may be regarded as mandatory for if, within the time fixed by the Court of the original jurisdiction, the plaintiff fails to comply with its order and the Court does not think fit to enlarge the time the Court must reject the plaint, and in the event of the pre-emptor's failure to comply with such an order passed by the appellate Court, the said Court shall dismiss the appeal.
9. It will be seen that under section 23, if the plaintiff fails to comply with the orders of the trial Court made under subsection (1), all that the trial Court can do is to reject the plaint under subsection (5) and it cannot dismiss the suit. It is only in one eventuality that the trial Court can dismiss the pre- emption suit and that is referred to in subsection (5) (b) of section 23 which provides that "if any security so furnished for any cause becomes void or insufficient, the Court shall order the plaintiff to furnish security or to increase the security, as the case may be, within a time to be fixed by the Court, and if the plaintiff fails to comply with such order, the suit or appeal shall be dismissed". This provision cannot, however, have any relevancy to the case before me as no question of furnishing a security in this case was involved. The relevant provision for the purpose of this case is contained in subsection (4) which has reference to the rejection of plaint by the trial Court. It will not be out of place to point out here that section 23 of the North-West Frontier Province Pre-emption Act, 1950, reproduces section 22 of the Punjab Pre-emption Act, 1913 except that the words "one/ fifth" used in section 22 are missing from section 23 of the other Act. It will be seen that except for the words "one/fifth" the provisions of section 22 are pari materia with section 23 of the North-West Frontier Province Pre-emption Act, 1950. I am justified, therefore, in construing subsection (4) of section 23 with reference to the decisions of the Courts upon the similar provisions of the Punjab Pre-emption Act, 1913 to which I have referred. In a case reported as PLD 1951 B J 14, the trial Court dismissed the suit for pre-emption instead of rejecting the plaint. This order was challenged by means of a Revision petition and it was held by his Lordship, the Chief Justice, that order of Court dismissing the suit instead of rejecting the plaint, would be treated as rejection of plaint and not as dismissal of suit. Having regard to the plain language of section 23(4) and relying on the decision reported as. PLD 1951 B J 14, I hold that the order of Civil Judge dated 22-7-1978 acting under section 23(4) would be treated as rejecting the plaint and not dismissing the suit.
10. ' On the second point, it has been contended by the learned counsel for the petitioner that the rejection of plaint under section 23 (4) amounts to a decree within the meanings of the said term as given in the Code of Civil Procedure and in the event of such a rejection, the only remedy available to the plaintiff would be to prefer an appeal to the concerned forum. It is argued that rejection of plaint under subsection (4) of section 23, precludes the plaintiff from presenting a fresh plaint in respect of the same cause of action and it is said that Order VII, rule 11, Civil Procedure Code, and the authority reported in PLD 1973 Lah. 495 to which reference has been made, and on which reliance has been placed, by the District Judge are irrelevant having no application to the rejection of plaints under section 23(4) of the Pre-emption Act. In this behalf, reliance is placed on AIR 1947 Lah.
11. 302.
12. ' It appears to me that these contentions of the learned counsel for the petitioner which have found favour with the trial Court are founded on misconception. It is, no doubt, true that it was held in AIR 1947 Lah. 302 that the definition of the "decree" as contained in the Civil Procedure Code includes all rejections of plaints either under the Code of Civil Procedure or otherwise and that such a rejection would be the rejection within meaning of the definition of the term "decree" given under the said Code and would be, therefore appealable as a decree. But this authority does not go any further.
13. The authority reported in PLD 1973 Lah. 495, it may be stated, is also distinguishable inasmuch as the rejection of plaint in that case was not under the Pre-emption Act but had reference to Order VII, rule 11 of the Code of Civil Procedure. In the case before me, however, the controversy, in essence, falls in a narrow compass, namely, whether the rejection of plaint under section 23(4) of the North-West Frontier Province Pre-emption Act, 1950, precludes the plaintiff from filing a fresh plaint in respect of the same cause of action. This precise point never came up for consideration before their Lordships while deciding the cases referred to above.
14. ' The argument advanced by the trial Court, and the contention raised by the learned counsel for the petitioner, is that since the rejection of plaint under section 23(4) amounts to a decree and is appealable, it would be taken that no fresh suit would be competent in respect of the same cause of action. There is no warrant, in my opinion, for the proposition that merely because an order amounts to a decree, it should be taken to preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. Instead, it would be seen that although order for rejection of plaint under Order VII, rule 11, Civil Procedure Code, amounts to a decree, nevertheless the rejection of such a plaint shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action as provided in rule 13 of the said Order. It is also not necessary that in the event of rejection of a plaint under section 23(4) or for that matter under Order VII, rule 11 of the Code of Civil Procedure, the only remedy available to the plaintiff is to challenge the rejection by way of an appeal and that he is prevented from bringing afresh suit. I cannot see how the argument that for the purpose of filing a fresh suit, reference cannot be made to the provisions contained in rule 13 of Order VII of the Civil Procedure Code, can be advanced. This argument is not only without any merit but is also in terms contradiction to the submission of the learned counsel that for the purpose of treating the rejection of a plaint under section 23(x) of the Pre-emption Act as a decree reliance should be placed on the definition of the term "decree" as given in the Code of Civil Procedure. It is conceded that it is nowhere provided in the North-West Frontier Province Pre- emption Act, 1950, that the rejection of a plaint under section 23(4) of the said Act would amount to a decree much less has the term "decree" been defined therein. This term has been defined in the Code of Civil Procedure and it has also been provided in the said Code, in rule 13, Order VII, that the rejection of plaint shall not preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. In order to defeat the plaintiff's subsequent suit, the learned counsel seeks support from the definition of the term "decree" given in the Code of Civil Procedure and contends that on the principle contained in the said Code, the rejection of plaint would amount to a decree, and would be, therefore, appealable as a decree, and for that reason no fresh plaint or suit would be competent in respect of the same cause of action. But when the matter came to the principle contained in Order VII, rule 11, providing for presenting a fresh plaint in respect of the same cause of action in the event of rejection of the earlier plaint, the learned counsel, in order to wriggle out of the difficulty, turned round and came forward with the plea that in the matter of rejection of a plaint under section 23(4) of the Pre-emption Act, 1950, and the competency of a fresh plaint in respect of the same cause of action, the relevant provisions contained in the Civil Procedure Code could not be looked into and relied upon. This argument virtually amounts to putting the cart before the horse.
15. It seems to me that section 23(4) is, in a sense, supplementary to Order VII, rule 11 of the Civil Procedure Code, and the effect of the rejection of a plaint under clause (4) of section 23 would be the same as that under Order VII, rule 11, Civil Procedure Code with the result that the plaintiff can, subject to law of limitation, file a fresh plaint in respect of the same cause C of action. I am, therefore, of the opinion that the order of rejection of the plaint dated 22-7-1978 did not preclude the plaintiff from presenting a fresh plaint. In the circumstances, it was wrong to suggest that the plaintiff-respondent had no cause of action for the present suit or that he was estopped from bringing the suit.
16. ' In the result, the Revision Petition is dismissed with costs.
17. Revision .