' The respondent's predecessor-in-interest namely Mst. Surat Bibi filed a suit for possession of the house in dispute through pre-emption which was dismissed by the learned trial Court by its judgment and decree dated 28-11-1958. In compliance with the orders of the Court she had deposited a sum of Rs, 1,300;as one-fifth of the pre-emption money and after dismissal of the suit she applied to the learned trial Court for grant of permission to withdraw it. Accordingly by the trial Court's orders dated 1-12-1958, the amount was refunded to her. However, on 12.3-1959 she filed an appeal against the judgment and decree of the learned trial Court which was accepted by the learned Additional District Judge, Multan on 9-12-1965 and she was directed to deposit the sale price of Rs, 6,500 + another sum of Rs, 1,950 on account of improvements made by the appellants in the property. During the course of hearing of the first appeal, the vendee appellants questioned its maintainability and urged that one-fifth of the pre-emption money having been withdrawn by the pre-emptor, under section 22(5) (a) of the Punjab Pre-emption Act her appeal merited dismissal. The learned first appellate Court relied on. Mst. Bibi Aisha v. Shadi Khan (1) and repelled this contention. As its judgment on other issues was also in favour of the pre-emptor, her suit was decreed.
2. The sole point requiring determination in the second appeal is, whether by withdrawing one-fifth of the pre-emption money, the pre-emptor stood non-suited and her appeal was liable to be dismissed. The learned counsel for the appellant argued that the language of subsection (5)(a) of section 22, is imperative, and one-fifth of pre-emption money having been withdrawn by the pre- emptor, the appeal should have been dismissed by the learned First Appellate Court. He cited Paras Ram v. Dalpat Rai (2), `Prem Singh v. Lakha Singh and others (3), Khair Din v. Hashmat and others (4), {{FOOT NOTE}}
(1) AIR 1935 Pesh. 143 (2) AIR 1920 Lah. 46
(3) AIR 1929 Lah. 387 (4) 1974 Law Notes 735 {{FOOT NOTE}} ' Abdul Ghafoor and another v. Mst. Lqbal Begum and another (1) and Ismail and another v.
Muhammad Aslam and 2 others (2) to fortify his submissions.
3. On behalf of the respondents their learned counsel argued that the appeal could only be dismissed, if there was an order of the Appellate Court, under section 22(2) of the Act, for fresh deposit and the appellant failed to comply with it or after depositing the same withdrew it without the permission of the appellate Court. He heavily relied on Sanwa! Das v. Jaigo Mal and others (3) which is a Division Bench ruling, to contend that it should take precedence over the Single Bench judgments cited by the learned counsel for the appellant. As the state of the reported case-law on the subject is somewhat obscure and conflicting, it would be the burden of this judgment to examine this point vis-a-vis the provisions of section 22, in some depth. Before discussing the case-law it will be appropriate to examine the scheme of section 22. This section in so far as it is relevant for the purposes of this appeal is reproduced below :- "22.-(l) 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.
(2) In any appeal the appellate Court may at any time exercise the powers conferred on a Court under subsection (1);
(3) (a) If any sum so deposited is withdrawn by the plaintiff, the suit or appeal shall be dismissed.
It is thus to be seen that the Legislature's object in insisting upon the deposit or furnishing of security by a pre-emptor is, to safeguard the vendee against the frivolous proceedings on the part of the prospective pre-emptors, as in case of the suit, such amount, can be utilized by the Court in awarding costs to the vendee. Under subsection (2) in the matter of deposit, the Appellate Court has specifically been vested with the same powers as conferred on the trial Court. What will be the occasion for the Appellate Court, to exercise such powers, will be examined in the latter part of this judgment. It is in the context of these provisions of section 22 that I proceed to examine the precedents cited by the learned counsel for the parties.
4. In Paras Ram v. Dalpat Rai, the plaintiff had sued for a declaration that the sale being without necessity was invalid. Alternatively, he also asked for a decree for pre-emption. The plaintiff's claim was partially accepted by the trial Court but the Additional District Judge having found the sale for necessity dismissed the suit. In second appeal, the plaintiff raised the plea that his alternative claim for pre-emption was ignored by the first Appellate Court. It appears that the money deposited by the plaintiff in the trial Court was withdrawn by him, during the pendency of the suit {{FOOT NOTE}}
(1) PLD 1975 Lah. 524 (2) PLD 1980 Lah. 104
(3) AIR 1924 Lab. 68 {{FOOT NOTE}} ' without the leave of the Court. Mertineau, J. Repelled the plaintiff's contention and maintained :- " the claim for pre-emption must also fail, as the money deposited by the plaintiff under section 22, Pre-emption Act, was withdrawn by him on 11th November, 1918, subsection (5) (a) of that section provides that if the sum deposited is withdrawn by the plaintiff the suit or appeal shall be dismissed."
5. The second precedent on this point is the Division Bench ruling in Sanwal Das v. Jaigo Mal and others wherein the pre-emptor's suit was decreed and the vendee went in first appeal ; during the pendency whereof, with the permission of the Court, the pre-emptor withdrew the pre-emption money, deposited by him in accordance with the trial Court's decree. It was contended on behalf of the vendee that the withdrawal of the sum, entailed dismissal of the pre-emptor's suit under section 22(5) of the Act. This argument was negative by the Division Bench and it was observed "We are satisfied, however, that the objection must be repelled. In the first place the pre-emptors are not the appellants in the case. In the second place the word "so" in the clause cannot be ignored. That word refers to the preceding section and in the case of an appeal obviously, relates to action taken by an appellate Court under subsection (2). In the present case there is no order by this Court under that subsection. In the third place it is clear that the object of an order under section 22(1) is to guarantee vendees against frivolous proceedings on the part of the possible pre-emptors. The deposit is a token of good faith and once the pre-emptor has obtained a decree, the need for a deposit no longer exists so far as the trial Court is concerned. No doubt such deposits are available for the discharge of costs (section 22(3) ), but such satisfaction is not the raison d'etre of the deposit and there is nothing to suggest that a vendee appellant is entitled to any advantage of the kind. We have no hesitation, therefore, in holding that section 22(5) (a) does not apply to the present appeal.,"
6. The third reported ruling is the one in Prem Singh v. Lakha Singh and others. The facts of this case were that the plaintiff withdrew the deposit money after the dismissal of his suit and his contention that he re-deposited it, before the institution of the first appeal, was not accepted. In Second Appeal Daleep Singh, J., discarded the appellant's arguments, that unless there was a fresh order of the first Appellate Court for deposit, in terms of section 22(2), the appeal could not be dismissed and relying on Paras Ram v. Dalpat Rai, rejected the second appeal.
7. The view taken in Sanwal Das's case, was followed by a Division Bench of the Peshawar Judicial Commissioner's Court in Mst. Bibi Aisha v. Shadi Khan and it was held that subsection (5) (a) of section 22 does not pose any legal objection to a plaintiff's withdrawing his deposit even without the leave of the Court and yet to prosecute his appeal. This view was primarily founded on section 22(5) (a) as is apparent from the following extract of this judgment :- "It is open to the Appellate Court, if objection to the withdrawal is taken by the vendee, to refuse to continue the hearing of the appeal until the pre-emption money has been re-deposited, and this was certainly one of the objects contemplated in clause (2) of section 22, which gives the Appellate Court power to order a deposit. This in fact is the course which should be followed in such cases by an Appellate Court in order to protect the vendee against frivolous appeals."
' In Khair Din v. Hashmat and others, the one-fifth pre-emption money was withdrawn by the appellant during the pendency of the second appeal. Aftab Hussain, J. Did not follow the Peshawar ruling and instead relied on Prem Singh v. Lakha Singh. The reason given for non-reliance on Peshawar ruling was that it is based on AIR 1924 Lah. 68 and that precedent in the opinion of the learned Judge is distinguishable as in that case the "one-fifth" was withdrawn by the pre-emptor after the dismissal of his suit. A reference to the report in Abdul Ghafoor v, Msi. Iqbal Begum, relied upon by the appellants will provide that the appellants lost their case before both the Courts below. The successful pre-emptors deposited the amount fixed by the trial Court but preferred first appeal on the question of determination of pre-emption money, which was also dismissed. They however, during the pendency of second appeal, filed by the vendees, with the permission of the Court withdrew the pre-emption money including the "one-fifth". It appears that the second appeal also could not succeed and the vendees applied for review, on the plea that the moment the pre- emptors withdrew the pre-emption money, their suit stood dismissed under section 22(5). In the course of the hearing of the review petition, the vendees-petitioners sought support from Paras Ram v. Dalpat Rai and so also from the judgment delivered by Daleep Singh,
1. In Prem Singh v.
Lakha Singh and others, Sardar Muhammad Iqbal, C. J., however, referred to the Division Bench ruling of this Court, in Sanwal Das v. Jaigo Mal and others and observed :- 'the view taken by Daleep Singh, J. In Prem Singh v. Lakha Singh and others was given per incuriam because he acted in ignorance of a previous announcement of a Division Bench of his own Court in Sanwa! Das v. Jaigo Mal which was binding on him sitting as he was in Single Bench."
' The learned Chief Justice quoted in extension an extract from this Division Bench judgment embodying the underlying reasons for the decision, and in declining their judicial application, to the case before him, expressed the opinion : "Moreover the observations are applicable only when the plaintiff-preemptor is the applicant and be withdraws the money. In such an event, the suit or the appeal, as the case may be, has to be dismissed under the said clause, but if the plaintiff who is the successful preemptor is a respondent in an appeal, the question of dismissal of the appeal does not arise."
' These observations were the main plank of the submissions of the appellant's learned counsel. In the last ruling Ismail v. Muhammad Aslam and others cited by him, the appellant who was the pre- emptor succeeded in the trial Court and in pursuance of the decree passed in his favour deposited in the Court, the amount fixed under the decree. The first respondent who was the rival pre-emptor however, succeeded in the first appeal. Ismail, after his death, was substituted by his legal representatives, who preferred second appeal and subsequently moved an application for permission to withdraw the amount deposited by them in the trial Court. However, before the disposal of this application they withdrew the amount. In these circumstances, the first respondent raised an objection that their second appeal could not proceed and merited dismissal under subsection (5)(a) of section 22 of the Act. Muhammad Ilyas, J., as against, the view taken in the Peshawar ruling, followed Prem Singh v. Lakha Singh and Abdul Ghafoor v. Mst. Lqbal Bagum and others, and maintained that :- "Surely, the Lahore view is in consonance with the letter and spirit of the provisions of clause (a) of subsection (4) of section 22 of the Punjab Pre-emption Act, which are of mandatory nature. I, therefore, with respect, follow the Lahore view and hold that since the appellants withdrew the pre- emption money, including one-fifth of the sale price, without the permission of this Court, their appeal deserves to be dismissed."
8. Normally, it is implicit in the authority of the Appellate Court, to pass such orders and to perform as nearly as possible, the same duties as enjoined on the Court of first instance. However, despite this well-established canon of law, the Legislature under subsection (2) of section 22 had zealously made a provision conferring the same powers on the Appellate Court, as B enjoyed by the Court of first instance, under subsection (1). The purpose of deposit, as observed above, is to protect the interest of the vendees against their being dragged in frivolous litigation. It seems to me, that there would be no occasion for the Appellate Court to exercise powers, under subsection (2) requiring the pre-emptor to deposit "one-fifth" in the Court, except when the sum deposited, in the trial Court, on the final decision of the suit, is withdrawn and later on an appeal preferred by him. After all where is the bar for a plaintiff to withdraw "one-fifth" on the dismissal of his suit. Supposing a plaintiff who after the dismissal of his suit, has withdrawn the one-fifth money, but before the expiry of the period of limitation, makes up his mind to go in appeal. Can he be denuded of his right and debarred from filing the appeal? It was presumably to meet such an eventuality that power has been conferred on the Appellate Court to require the pre-emptor-appellant to deposit "one-fifth" of the probable value of the land or propriety, as the case may be, in the Court. It would be thus an obligation of the Appellate Court to pass an order requiring such a pre-emptor to deposit one-fifth of the pre-emption money in the Court. Under subsection (1) there is a limitation on the powers of the trial Court and it is required to pass the order of deposit or tendering of security before the settlement of issues. However, under subsection (2) there is no such restriction on the powers of the appellate Court and it may direct the appellant to make the deposit, at any time before the final determination of the appeal. Subsection (4) inter alia envisages dismissal of an appeal for disregard to an order under subsection (2). It is clear to me that a preemptor-appellant, who on the dismissal of his suit, withdraws the one-fifth of the pre-emption money would be bound to deposit it in the Court, only if ordered by the Appellate Court and need not volunteer such payment.
If no such order is made, he cannot be penalized and his . It is well settled that no party should be deprived of his right, if it is entirely due to oversight or an omission on the part of a Court. The language of subsection (5) (a) demonstrates that the user of the expression "the sum so deposited" in this clause has reference to preceding clauses namely subsections (1) and (2). The dismissal of the suit under clause (5) (a) has reference to the withdrawal of the deposit made in pursuance of subsection (1) and whereas the words "the appeal shall be dismissed" obviously, have a nexus with subsection (2) and unless an order is passed by the Appellate Court, for deposit, there would be no occasion for dismissal of the appeal. It should not be inferred that an appellant who bad deposited one-fifth in the trial Court but withdrew it at the Appellate stage, without the permission of the Court, would be immune from penal action under subsection (5) (a) because in such a case the deposit has to ensure for the purposes of the appeal filed by him.
9. The arguments resting on subsection (2) were not considered in the two pre-Partition rulings referred to by the appellant's learned counsel and in fact no reason was given by the learned Judges in support of their decisions. A thread of this reasoning however, figures in Sanwal Das's case, followed in the Peshawar ruling. It is noteworthy that the judgment in Prem Singh v. Lakha Singh and others was caused in ignorance of the Division Bench's judgment in Sanwal Das v. Jaigo Mal and others. It must be remembered that a dicta of a Judge can lay down authority only for they points mooted and discussed in his judgment. It is correct that in Sanwalii Das's case the appellant was not the pre-emptor and this factor was also noticed by the Division Bench. It is also evident that the argument as to the use of the word "so" in subsection (5) (a) with reference to subsection (2) is only one of the three reasons on which that judgment is founded. But it is to be seen that when a Court gives a number of reasons for a decision, unless there is an interlacing of such reasons, those on whom the duty of construing the same point may, later befall, while evaluating binding nature of the precedent, can measure the decree of weight to be attached to each reason. I feel no hesitation in holding that in Sanwal Das's case, the argument that the Appellate Court had not passed any order under subsection (2), forms an authoritative element of the precedent and the other reasons are the additional grounds given by the learned Judges to support their decision. This judgment was construed by the Judicial Commissioner's Court in the same perspective, as I look at it. I may also say, and say so with respect, that the correct ratio decidendi of Sanwa! Dais case, was not pointedly placed before the learned Judges, in three post- Partition Single Bench, rulings of this Court.
10. I am not unaware of the dictum laid down by the Full Bench in Muhammad Ahsan Ullah Khan and others v. Muhammad Sami Ullah Khan' and others (1) that a pre-Partition decision of the Lahore High Court is not technically binding on this Court though entitled to greatest respect.
However D in my opinion the rule laid down in Sanwal Das v. Jaigo Mal and others, marches with the language and objects of section 22 and 1, therefore, with utmost respect do not find myself, in line with the view taken in the Single, Bench judgments.
11. I entirely agree with the reasoning which prevailed with the learned Additional District Judge on the point in issue and finding no merit in this appeal hereby dismiss it. As somewhat difficult question of law has arisen in this appeal, the parties are left to bear their own costs.
(1) PLD 1964 Lah. 101