' MUHAMMAD SAFDAR KHAN SIKANDRI, J.---Karam Ellahi plaintiff-petitioner filed a suit against Muhammad Hashim and others defendants-respondents for possession through pre-emption of land fully detailed in the heading of the plaint. Vide order dated 12-1-2005 the plaintiff-petitioner was directed to deposit 1/3rd of pre-emption amount within thirty days but he failed to deposit the same, therefore, vide order dated 22-3-2005, the suit of the plaintiff-petitioner was dismissed.
2. Having felt aggrieved from the impugned order dated 22-3-2005, the plaintiff-petitioner filed appeal which was also dismissed vide impugned judgment dated 6-5-2005 passed by Additional Distinct Judge-II, D.I. Khan and hence, the instant revision petition by the plaintiff-petitioner.
3. Learned counsel for the petitioner forwarded two fold arguments in support of the grounds agitated in the revision petition for setting aside the impugned orders of trial Court as well as lower appellate Court and to remand the case back to the trial Court for decision afresh on merits by allowing the petitioner to deposit the pre-emption money and argued that the order for deposit of the amount has not been communicated as evident from the chit provided by the Court dated 18- 2-2005. He urged further that noncompliance of the order of trial Court was not due to the negligence of the petitioner but he was misled by the Reader of the Court while not clearly mentioning therein for depositing the pre-emption amount. He lastly argued that on 12-1-2005 the Court of Civil, Judge-IX, D.I. Khan was not legally competent nor had the jurisdiction to pass an order for the deposit of the preemption amount as on that date, the pre-emption suit pending in his Court had been ordered to be transferred by the order of District Judge through letter No,154 dated 12-1-2005.
4. On the contrary, learned counsel for the respondents urged before me that the order passed by the trial Court on 22-3-2005 is very much according to law whereas the subsequent judgment passed by the appellate Court also does not warrant interfetence as the non-deposit of the preemption amount by the petitioner was due to his intentional attitude which is violative of mandatory provisions of section 24 of the N.-W.F.P. Preemption Act, 1987.
5. The arguments addressed at the bar were assessed in the light of decision of the Courts below made in respect of the non-deposit of the preemption amount by the petitioner.
6. A look over the order sheets reflected by the trial Court will clearly show that the suit for pre- emption was brought on 21-9-2004 in the Court of MOD in absence of Senior Civil Judge, D.I. Khan who assigned the same to the Court of Senior Civil Judge on 22-9-2004 and was onward transmitted to the Court of Civil Judge, D.I. Khan on 23-9-2004 and after making the scrutiny, no order for deposit of 1/3rd of the pre-emption amount was made by the trial Court and in order to ascertain the pre-emption amount, Patwari Halqa was summoned for placing the copy of mutation on the file but till 12-1-2005 Patwari Halqa did not appear for one reason or the other in the trial Court and it was ordered that the petitioner should deposit 1/3rd of the pre-emption amount of Rs,2,70,000 as the same amount is entered in the Photostat copy of Register Haqdaran Zamin for the year 2001-2002 available before the Court.
7. In view of the arguments advanced by counsel for the petitioner, the order for the deposit of pre- emption amount was made on 12-1-2005 but on that date, the trial Court had no jurisdiction to entertain the captioned case as envisaged from the office order of District Judge bearing No,154 dated 12-1-2005 whereby the suit was likely to be transferred to the Court of Shabbir Muhammad Durrani Civil Judge for onward proceedings but even then at the bottom of the said order sheet, in spite of depositing the preemption amount, the case was posted for 18-2-2005' to be assigned to the Court of Shabbir Muhammad Durrani, Civil Judge, Paharpur and order sheet was reflected by the transferee Court for notice to the parties for 22-3-2005 without making a subsequent order for the deposit of the preemption amount. In this regard, it is also worthy to mention that since the date of institution of suit up to 18-2-2005, the chits were regularly handed over to the petitioner for attendance without mentioning the words of deposit of pre-emption amount and the petitioner remained in darkness till the impugned order 22-3-2005 whereby the petitioner was non-suited on the ground of default in depositing 1/3rd of the pre-emption amount.
8. Here a question arises that when the case was transferred from the Court of Civil Judge-IX, D.I.Khan on 12-1-2005, the Court was supposed to have transfered the case without writing the order sheet or for that matter, if the order sheet was written, then it was the duty of the Court to have specifically directed the petitioner for deposit of the pre-emption money. Moreover, when the suit was received by transfer to the Court of Civil Judge, Paharpur, then he was again duty bound to have written another order sheet for the deposit of the pre-emption amount. Apparently, the date i,e, 22-3-2005 fixed before the Civil Judge, Paharpur was the first order sheet in terms that on 18-2-2005 the parties were summoned and they did not appear before the Court concerned on 22-3-2005 but without giving any reasonable extension to the petitioner for depositing the pre- emption amount, it took into consideration the order sheet dated 12-1-2005 and straight away the suit of the petitioner was dismissed but in this eventuality the dictum handed down in the case of Mazhar Javed v. Muhammad Iqbal 2005 CLC 830 is relevant wherein it is held that, "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 of trial Court and the learned First Appellate Court has rightly interfered to protect the rights of the pre-emptor."
' Similarly, in another case titled Riaz Ahmad v. Additional District Judge, Sargodha 1999 YLR 336 it is held that, "I am very clear that if the plaintiff has to be punished with dismissal of suit it ought to be established beyond shadow of doubt that order of the Court dated 16-9-1996 was communicated to the plaintiff/learned counsel well within time so as to enable the plaintiff to make the deposit by 26-9-1996. But parties admit that the order was not conveyed. The plaintiff, therefore, could not be punished for failing to make the deposit by 26-6-1996, as has been done by the revisional Court respondent No,1 ."
9. In view of the circumstances of the case and having regard to the dictums quoted above, I have been led to the conclusion that the petitioner was kept in darkness as well as in topsy-turvy position since institution of case by regarding deposit of 1/3rd of the pre-emption amount for the reasons that the suit was instituted on 21-9-2004 and the order for deposit of the preemption amount was made on 12-1-2006 but the order of depositing the amount was not particularly communicated to the petitioner by the Court and that is why the order passed on 22-3-2005 while non-suiting the petitioner on the ground of non-deposit of 1/3rd of pre-emption money is quite incorrect. The dismissal of appeal of the petitioner by the appellate Court is also incorrect which is also the result of miscarriage of justice having not evaluated the merits in this regard in true perspective, therefore, without touching the other merits of the case, the revision petition is accepted, the impugned judgments/orders of the Courts below are set- aside and the suit of the petitioner is restored on its original number. The petitioner is directed to deposit 1/3rd of pre- emption amount of Rs,2,70,000 in the trial Court within thirty days from today, failing which, his suit shall stand dismissed. The record of the trial Court be transmitted down not latter than two days by the office. The parties are directed to appear in the trial Court on 1-7-2010.