' HAFIZ ABDUL REHMAN ANSARI, J.---Through the instant civil revision petition under section 115, C.P.C., petitioners Muhammad Nasrullah and 2 others, call in question the judgment dated 21-12-2009, passed by the learned Additional District Judge, Sahiwal, whereby he remanded the case to the learned Civil Judge by accepting the appeal filed by respondent Muhammad Nawaz Shah against the order dated 30-6-2009 of the learned Civil Judge, Sahiwal, whereby he had dismissed the suit of the respondent for possession through preemption.
2. Brief facts of the case are that one Mst. Amina Bibi, who was owner of 7-Kanals and 6 Marlas of agricultural land in Chak No,55/4/R, Tehsil and District Sahiwal, sold away the same to the petitioners for a consideration of Rs,2,70,000 vide Mutation No,830 dated 30-6-2005; respondent Muhammad Nawaz Shah exercising his right of pre-emption filed a suit for possession of the said land through pre-emption under section 13 of the Punjab Pre-emption Act, 1991 against the present petitioners in the Court of Civil Judge, Sahiwal on 12-8-2005. The petitioners on receipt of summons appeared before the trial Court and filed a joint written statement on 18-3-2009. Under section 24(1) of the Punjab Pre-emption Act, 1991 the plaintiff was bound to deposit in the Court 1/3rd of the sale price (Zar-e-Soem) within 30 days of the filing of the suit and if he fails to deposit the same within 30 days his suit was to be dismissed by the civil Court. The first proviso to said section 24(1) of the Act stipulates that period of 30 days shall not be extended at any cost.
3. On 2-12-2008, an objection was raised on behalf of the defendants-petitioners before the learned Civil Judge that 1/3rd of the sale price of the land had not been deposited by the plaintiff and this failure on his part was fatal for the suit of pre-emption which should be dismissed in accordance with the provisions of section 24(2) of the Act ibid. The Case was adjourned on many dates. However, the learned trial court came to the conclusion that the respondent-plaintiff failed to deposit the 1/3rd sale price within 30 days of the filing of the suit. It was further held by the trial Court that the plaintiff-respondent filed the suit on 12-8-2005 and the court passed an order on 3- 9-2005 requiring the plaintiff to deposit 1/3rd of the sale price amounting to Rs,90,000 within 30 days. The plaintiff/respondent in compliance of the said order dated 3-9-2005 deposited 1/3d of the sale price on 28-9-2005. However, keeping in view all the circumstances, the learned trial Court vide order dated 30-6-2009 dismissed the suit of the plaintiff-respondent and this order of dismissal of the suit was assailed in appeal before the learned District Judge on 22-7-2009 and the learned Additional District Judge, who was entrusted the matter, accepted the appeal of the respondent on 21-12-2009, hence this civil revision.
4. Learned counsel for the petitioners contends that the trial Court rightly dismissed the suit of the respondent/plaintiff filed on 12-8-2005 as the learned trial Court had ordered the plaintiff to deposit 1/3rd of the sale price till 3-9-2005 and according to the provisions of section 24(2) of the Punjab Pre-emption Act last date of deposit sale price was 11-9-2005 as in the said provision 30 days limitation was prescribed. However, the plaintiff had deposited the same on 11-9-2005 which was delayed by 17 days. Further contended that a certified copy of the decree sheet was not filed along with appeal before the District Judge so the appeal was not competent as it is the decree which is always assailed and not the judgment. The learned counsel for the petitioners has placed reliance on the cases reported as Ghulam Muhammad v. United States Agency for International Development (U.S. AID) Mission, Islamabad and another (1986 SCMR 907), Abdul Majeed and 6 others v. Mst. Haleema and 1.8 others (1987 CLC 2331-Lahore), Imam Gul v. Mst. Begum Ji (1980 CLC 530 (SC-AJ & K), Faquir Muhammad and 48 others v. Province of Punjab through Collector/Deputy Commissioner others (PLD 1993 Lahore 439).
5. On the other hand, the learned counsel for the respondent-plaintiff supported the judgment of the learned Additional District Judge dated 21-12-2009 by contending that the learned trial Court was competent to extend time for deposit of Zar-e-Soem. Placed reliance on the cases reported as Malik Hadayat Ullah and 2 others v. Murad Ali Khan (PLD 1972 SC 69) and Ghulam Hassan v.
Jamshaid Ali and others (2001 SCMR 1001). Further contended that in case of rejection of the plaint, it is not necessary to file certified copy of the decree along with the memo of appeal as the learned trial Court had rejected the plaint and not drawn the decree so the decree sheet was not filed along with appeal before the. District Judge. Filing of certified copy of the decree sheet along with memo of appeal is not necessary as held in the case reported as Manzoor Ahmad v. Syed Mushtaq Ahmad and another (PLD 1990 Lahore 390), relevant portion from the said judgment is reproduced hereunder:-- "As far certified copy of the decree, the case of Zahid Bashir, relied upon by the learned counsel for the respondent, is very clear on the point that in case of rejection of plaint, it is not necessary to file certified copy of the decree along with the memorandum of appeal directed against such rejection. This view is based on Feroz Shah v. Kalu Ram and another (AIR 1936 Peshawar 155) referred to in the case of Zahid Bashir. Since no authority to the contrary has been relied upon by learned counsel for the petitioner, I, with respect, follow the view taken in the cases of Zahid Bashir and Feroz Shah and hold that the respondent was not obliged to file certified copy of decree along with the memorandum of appeal."
6. I have heard the learned counsel for the parties and perused the record. The learned Additional District Judge in his judgment dated 21-12-2009 has given cogent reasons that deposit of Zar-e- Soem was within time. In this respect the learned appellate court observed that:-- "The observation of the learned trial Court that the time for deposit of 1/3rd sale price will be reckoned from thc filing of the suit but on the day when the file was submitted before the learned Duty Judge on 12-5-2005 the file was not numbered and not admitted for regular hearing because these were days of summer vacations .And on 12-8-2005 order about the temporary injunction was passed by the learned Duty Judge. The case was thus presented before the learned Court to whom it was marked on 3-9-2005 by the learned Duty Judge and that was registered treating it fresh suit filed by the appellant and on the said date, the learned trial Court ordered to deposit Rs,90,000 1/3rd sale price which was deposited on 28-9-2005 well within time allowed by the Court."
No doubt the suit was filed on 12-8-2005 but the first time the trial Court on 3-9-2005 required the plaintiff to deposit the 1/3rd amount of sale price. From this date period of thirty days will not expire on 11-9-2005. The deposit on 28-9-2005 by the plaintiff-respondent was well within time allowed by the Court. The Zar-e-Soem could be deposited after 30 days from 3-9-2005 the date when the suit was registered as period for 30 days was to be calculated from the said date not from 12-8-2005 when the file of the suit was submitted before the learned Duty Judge as it was not numbered on that date rather it was numbered on 3-9-2005. Therefore the finding of the learned trial Court in this regard is not tenable.
7. For the reasons discussed above, the Civil Revision Petition is dismissed, the judgment and decree of the learned Additional District Judge is upheld and the parties are directed to appear before the learned trial Court on 7-6-2010, as ordered by the learned Additional District Judge in his judgment, dated 21-12-2009.