SAGHEER AHMED QADRI, J - Petitioner- Mst. Nusrat Bibi filed suit for possession through pre-emption of land measuring 1-Kanal 12 Vz marlas detail of which is given in the head-note of the plaint mentioning the facts that on 6.7.2009 at about 11.00 a.m her husband Mushtaq Ahmad disclosed that Nisar Ahmad, her brother has sold the land-subject matter of the suit to respondent- defendant Ghulam Ahmad and she thereafter pronounced Talb-e- Muwathibat. In para No.10 of the plaint it was asserted by the petitioner-plaintiff that on receipt of attested copy of mutation it came into her knowledge that respondent. Defendant with malafide and dishonestly had got recorded the price of the land as Rs. 5,00,000/- whereas actually it was paid as Rs. 1,04,000/- Talb- e-Khusumat, petitioner- plaintiff filed suit for possession through pre-emption in the Trial Court and following order on 3.9.2009 was passed by the learned Trial Court.
2. On behalf of the defendant power of attorney has been filed. As pr request, file to be put up for filing of written statement on 5.10.2009, plaintiff is directed to deposit Zar-e-soam within 30 days."
Petitioner-plaintiff deposited Rs. 51,350/- vide receipt present at page No.48 of this file.
3. Application under Order VII Rule 11 CPC was moved by the respondent-defendant mentioning the facts that the plaint is liable to be rejected on the ground that Zar- e-soam has not been deposited by the petitioner-plaintiff in time. Last deposit of Zar-e-Soam is also lesser than the required one.
This application was resisted by the petitioner- plaintiff submitting her written reply and vide order dated 18.9.2010, learned Trial Court rejected the plaint while passing the following order. The operative para No.3 is hereby reproduced; "The perusal of record transpires that the plaintiff has filed instant sujt for possession through pre- emption, in respect of land which was sold out to the defendant against a sale consideration of Rs.
05.00 lac. The perusal of record further transpires that the instant suit was filed on 4.8.2009 and according to the value of sale deed-of suit land which was sold out to the defendant against a sale consideration of Rs. 05.00 lac the plaintiff was directed by the learned predecessor Court to deposit 1/3 rd of the sale price of the suit land in accordance with law but she has deposited Rs. 51,350/- on 1.10.2009 which fact shows that the plaintiff has prima facie failed to deposit 1/3rd of the sale price within the stipulated period of 30 days and in view of Section 24 of Punjab Pre-emption Act, 1991 the suit of the plaintiff is barred. Therefore, in the given facts and circumstances instant application moved by the defendant under Order VII Rule 11 CPC is accepted and plaint of the plaintiff is hereby rejected with costs."
Feeling aggrieved the petitioner-plaintiff preferred an appeal which was heard and decided by learned District Judge, Rawalpindi who vide impugned judgment and decree dated 21.12.2010 dismissed the same hence, this civil revision.
3A. Learned Counsel for the petitioner-plaintiff argued that the learned Trial Court although vide order dated 3.9.2009 directed the petitioner-plaintiff to deposit 1/3rd i.e. Zar-e-Soam of the sale price of the property yet it was not calculated nor specified amount was directed to be deposited within the stipulated period i.e. 30 days. Further argued that as the petitioner-plaintiff in her plaint has asserted that although in impugned sale mutation, price was allegedly shows paid as Rs.
5,00,000/- yet the petitioner- plaintiff asserted that it was not actually fixed nor paid rather Rs.
1,04,000/- plus Rs. 50,000/- was paid while calculating the same, Rs, 51,350/- was deposited on 1.10.2009; that under 2nd provision annexed to section 24(1) of the Punjab Pre-emption Act, 1991, learned Trial Court was duty bound first to ascertain and then pass a specific order for deposit of specific amount as Zar-e-Soam which exercise was not done by the learned Trial Court therefore, the petitioner-plaintiff as alleged in her plaint calculated and deposited Zar-e-Soam within stipulated period of 30 days, hence rejection of the plaint was illegal and without any lawful justification. Learned Counsel while relying on (2007 SCMR 1091) Muhammad Din and others v.
Jamal din and others (2008 CLC 479) Tariq Mehmood Anjam v. Allah Ditta through Mukhtar-e- Aam, (2001 CLC 1693) 'Gulzar Ahmad v. Sardar Alam and 9 others, (PLD 2005 Lahore 1) Muhammad Akbar v. Muhammad Malik and another, (PLD 2005 Lahore 647) 'Rana M. Siddique v. Additional District Judge, Bahawalnagar and other's, (2001 SCMR 1001) 'Ghulam Hassan v. Jamshaid Ali and others, (PLD 2006 Lahore 410) 'Mst. Parveen Akhtar and another v. Muhammad Satar1 (2004 YLR 437) Muhammad Yousaf and another v. Civil Judge, Sargodha and 2 others prayed that impugned order whereby plaint of the petitioner-plaintiff was rejected and upheld by the learned Appellate Court is liable to be set- aside. Further argued that the learned Appellate Court did not exercise jurisdiction vested in it in accordance with law nor appreciated the law applicable in the circumstances.
4. On the other hand, learned counsel for the respondent-defendant has vehemently opposed the arguments advanced by the learned counsel for the petitioner-plaintiff and argued that it was duty of the petitioner-plaintiff to deposit 1/3rd price as allegedly paid by the vendee to the vendor according to the record i.e. In the present case mutation concerned. That the petitioner did not act in diligent manner thus, plaint was rightly rejected and appeal was also dismissed by the learned Appellate Court. Reliance in this respect is placed on 2002 YLR 1580 'Ghulam Yasin and others v.
District Judge and other's. Prayed that this revision petition be dismissed.
5. 1 have heard the learned counsel for the parties and perused the record.
6. In order to appreciate the arguments advanced by both the sides, provision of Section 24 of the Punjab Preemption Act, 1991 is hereby reproduced.
"24. Plaintiff to deposit sale price of the property.
(1) In every suit for pre-emption the Court shall require the plaintiff to deposit in such Court one third of the sale price of the property in cash within such period as the Court may fix: Provided that such period shall not extend beyond thirty days of the filing the suit: Provided further that if no sale price is mentioned in the sale-deed or in mutation, or the price so mentioned appears to be inflated, the court shall inquire deposit of one third of the probable value of the property.
(2) Where the plaintiff fails to make a deposit under sub-section(l) within period fixed by the Court or withdraws the sum so deposited by him, his suit shall be dismissed.
(3) .......
(4) .......
By mere reading of Section 24 of the Punjab Pre-emption Act, 1991 it is mandatory for a Trial court to pass a specific order directing the plaintiff to deposit 1/3 rd of the sale price of the property in cash within such period as the Court may fix but that period according to the 1st proviso shall not exceed 30 days of the filing of the suit. Under 2nd proviso to sub-section (1) of Section 24 of the Punjab Pre- emption Act, 1991 it is further enacted that if in case no sale price is recorded or mentioned in the sale deed or in the mutation or the price mentioned appears to be inflated^ the Court shall require to deposit 1/3rd of probable value of the property. It is mandatory in these circumstances for a Court to go through the plaint and to ascertain the price of the land- subject matter of the suit and then pass a specific order directing the plaintiff to deposit 1/3rd of the sale price in a stipulated period. If the order passed by the learned Trial court dated 3.9.2009 is seen, it is ambiguous order whereby the petitioner-plaintiff was directed to deposit Zar-e-Soam/one third of the sale price within 30 days. It is only mentioned that Zar-e- Soam be deposited with thirty days. Learned Trial Court did not conduct the required exercise and only in casual manner directed the petitioner- plaintiff to deposit the said amount which she according to her own assessment deposited as she asserted that actual price according to her was Rs. 1,54,000/- Judgment cited as (2007 SCMR 1091)
'Muhammad Din and others v. Jamal din and others, their lordship of Hon'ble Supreme Court of Pakistan have specifically observed that "Courts are required to decide the cases after judicial application of mind with reasons." In judgment cited as (2008 CLC 479) 'Tariq Mehmood anjam v.
Allah Ditta through Mukhtar-e-Aam', learned single Bench of this Court observed that "Beside primarily it is duty of the Court to pass a correct order under section 24 of the Punjab Pre-emption Act, 1991. I have already reproduced the order passed on 23.12.2005 above. It simply says that 1/3rd be deposited within 30 days. The learned Addl. District Judge has very rightly pointed out that the learned Trial Court ought to have specified the amount which was to be deposited particularly when office had reported that 1/3rd comes to Rs. 12,50,000/-"
7. It is now settled that whenever a provision of law requires doing of any act on the part of a party which entails a penalty then the Court passing any such order must pass a specific and unambiguous order directing such a party for the compliance so that no ambiguity be left in compliance of the said order. Here in this case, admittedly the petitioner-plaintiff when was challenging that price shown by the respondent-defendant as incorrect and inflated and she also was claiming that actual price according to her version was less than shown then under 2nd proviso to Section 24 (1) of the Punjab Pre-emption Act, 1991, learned Trial Court was obliged to pass specific order giving exact amount as 1/3rd price (Zar-e-soam) to be deposited on or before a specific date. In view of the circumstances order passed by the learned Trial Court dated 3:9.2009 and subsequently upheld by the learned Appellate Court vide impugned judgment dated 21.12.2010 are illegal and without any lawful justification thus, are hereby set-aside. Case is remanded to the learned Trial Court with the direction to pass a specific order as required under 2nd proviso to section 24(1) of the Punjab Pre-emption Act, 1991 directing the petitioner-plaintiff to deposit Zar-e-soam within stipulated period. No order as to costs.