1. This is an appeal against the judgment and decree of the learned District Judge, Muzaffarabad, dated 21-2-1970.
2. The facts giving rise to this second civil appeal are that Ahmad Baig purchased suit land. Mst.
3. Raqia Begum brought a suit to pre-empt the sale. On 8-6-1965 the learned Sub-Judge ordered the plaintiff to deposit the one-fifth of the purchase price by 7-8-1965. This order was made in the presence of the counsel for the parties. The plaintiff herself was not present. Then on 26-7-1965 the plaintiff made an application to the learned Sub-Judge showing that she is a widow and that if she deposits Rs, 1,200 into the Court, the amount will be lying idle and it cannot be said for how long this money shall remain idle and for how long she would be deprived of a beneficial use of this money.
4. She, therefore, prayed that instead of making a deposit of Rs, 1,200 she be allowed to furnish security. The learned Sub-Judge by his order dated 27-6-1965 accepted the application and passed an order that if the plaintiff furnishes security for Rs, 1,200 she need not deposit the one-fifth in cash. It is further noted that her application is accepted under section 22 of the Pre-emption Act.
5. Issues were struck on 7-8-1965 and thereafter the case proceeded on in the trial Court for evidence but then the learned Sub-Judge was transferred and Raja Imdad Ali Khan took over as Sub-Judge.
6. He passed an order on 25-1-1967 that arguments shall be heard on 28-1-1967. Eventually after hearing arguments the learned Sub-Judge by his order dated 16-2-1967 dismissed the plaintiff's suit on the ground that on 8-6-1965 the plaintiff had been ordered to deposit Zare-Khumas by 7-8- 1965 otherwise her suit would stand dismissed but then she made an application on 26-7-1965 that she is a widow and if she deposits Rs, 1,200 the amount would remain idle in the Court and she would be deprived of the beneficial use of the amount for a long time and requested that she should be permitted to furnish security instead of making a deposit and that the learned Sub- Judge bad accepted this application whereas if security was to be furnished it should have been the whole of the price and not to the extent of the Zare-Khumas. Raja Imdad Ali Khan held that the order of the trial Court dated 7-8-1965 had not been complied with and that the suit should have been dismissed. The learned Sub-Judge (his predecessor) had without any adequate reason changed the order of deposit into Court of the one-fifth of the sale price into one of furnishing security. Therefore, this suit should have been dismissed and he is pleased to dismiss the suit. The plaintiff then went up in appeal and the learned District Judge, Muzaffarabad by his judgment and decree dated 21-2-1970 held that Raja Imdad Ali Khan, Sub-Judge was not competent to review the order of his predecessor or to sit in appeal over the order of his predecessor. He, therefore, accepted the appeal and remanded the case for retrial. The vendee has now come up in second appeal before this Court.
7. 'It has been argued by Mr. Farooq that there is no express order by the trial Court for changing his order of making the deposit into one of furnishing security. When the trial Court makes an order requiring the plaintiff to make the deposit of the Zare-Khumas but the plaintiff instead furnishes security and the Court accepts the same, it can be said that the security had been accepted without an express order of the Court but where there is an application made to the Court for changing the order of making the deposit into an order for furnishing security and the Court accepts this application, it cannot be said that there is no express order changing the requirement of making a deposit into an order of furnishing security. In the present case before me the plaintiff made an application on 26-7-1965 praying that she be allowed to furnish security for Rs, 1,200 instead of making a deposit since her money would be lying idle for a pretty long time. The learned Sub-Judge wrote an order on this application on 27-7-1965 that the application is accepted and if the plaintiff furnishes security for Rs, 1,200 she need not make the deposit. It is further put down that this application is accepted under section 22 of the Pre-emption Act. There could be no better express order allowing the plaintiff to furnish security instead of making a deposit.
8. As regards the stand of the vendee that the learned Sub-Judge had without adequate reasons changed his orders, I do not agree with him. The fact that the deposit would be lying idle in the Court till the case is finally decided by the High Court, would be sufficient reason for allowing the plaintiff to furnish security instead of making the deposit since the plaintiff would not be getting any interest on her deposit lying idle in the Court. If I were a trial Judge I would permit a plaintiff to furnish security instead of making a deposit.
9. Judges should understand that the Punjab Pre-emption Act is not in force in Azad Kashmir. It is the Jammu & Kashmir Right of Prior Purchase Act which is in force in Azad Kashmir. Section 22 of the Punjab Pre-emption Act corresponds to section 21 of the Jammu & Kashmir Right of Prior Purchase Act and there is a slight difference in subsection (1) of these two sections. Subsection (1) of section 22 of the Punjab Pre-emption Act reads: "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 one-fifth of 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."
10. Whereas subsection (1) of section 21 of the Jammu & Kashmir Right of Prior Purchase Act is as under :-- "In every such suit the Court shall at, or at any time before, the time of settlement of issues, require the plaintiff to deposit in the Court such sum as in the opinion of the Court equal to one-fifth of the probable value of the land or property or require the plaintiff to give security to the satisfaction of the Court for the payment of a sum not exceeding such propable value within such time as the Court may fix in such order."
11. The difference lies here that subsection (1) of section 21 of Jammu & Kashmir Right of Prior Purchase Act provides that at, or at any time before the settlement of issues, the Court may require the plaintiff to deposit in the Court such sum as in the opinion of the Court is equal to one-fifth of the probable value of the land or property whereas subsection (1) of section 22 of the Punjab Pre- emption Act provides that the Court may 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 one-fifth of the probable value of the land or property.
12. According to Jammu & Kashmir Right of Prior Purchase Act the Court has to call upon the plaintiff to make a deposit of the one-fifth of the probable value of the land whereas under the Punjab Pre- emption Act the Court may call upon the plaintiff to make a deposit of such sum as does not exceed the one-fifth of the probable value of the land. The next clause authorising the Court to require the plaintiff to furnish security is the same. Under both the laws the Court can require the plaintiff to give security to the satisfaction of the Court for the payment of a sum not exceeding such probable value within such time as the Court may fix in such order. It is not necessary that security should be demanded for the whole of the probable value of the land in suit. The Court could fix the amount of the security at any figure falling short of the probable value but in no case the Court can demand the security for an amount exceeding such probable value.
13. I agree with the learned District Judge that the learned Sub-Judge was not competent to review the order of his predecessor or to sit in appeal over the order of his predecessor.
14. There is no force in this appeal which is hereby dismissed with costs.