' SHUJAAT ALI KHAN, J.--- By means of this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed for setting aside of order dated 20-10-2010 passed by the learned Civil Judge, Bahawalpur (respondent No,2), whereby the application filed by the petitioner for rejection of plaint under Order VII, rule 11, C.P.C. Was dismissed as well as order dated 24-5-2012 passed by the learned Additional. District Judge, Bahawalpur (respondent No,1) by virtue of which he dismissed the revision petition filed by the petitioner against the dismissal of his application for rejection of plaint under Order VII, rule 11, C.P.C.
2. Shorn of unnecessary details, the facts, forming factual canvass of the instant petition. Are that Muhammad Ashiq (respondent No,3) filed a suit for possession through pre-emption against the petitioner as well as Zulfiqar Ali and Muhammad Akram (respondents Nos.4 and 5) in which they filed written statement. The petitioner and respondents Nos.4 and 5 purchased suit property against a consideration of Rs,6,00,000 but respondent No,3 mentioned the sale price as Rs,1,60,000.
The petitioner filed an application under Order VII, Rule 11, C.P.C. For rejection of plaint which was dismissed by the learned Civil Judge, Bahawalpur. Against which the petitioner filed a revision petition before the learned -Additional District Judge, Bahawalpur, which too met with the same fate, on 24-5-2012; hence this petition.
3. The arguments advanced by learned counsel for the petitioner can be summed up in the words that both the courts below have not appreciated that respondent No,3 while filing the suit for pre- emption mentioned the sale consideration as Rs,1,60,000 in a clandestine manner; that while directing for deposit of Zar-e-Soam the learned trial Court was bound to see the accompanying documents in addition to the plaint; that the provisions of section 24 of the Punjab Pre-emption Act, 1991, are mandatory in nature and no relaxation can be awarded by the court to the plaintiff beyond 30 days and that both the courts below have passed the order in violation of the verdict laid down by this court in the cases reported as Rana Muhammad Boota and another v.
Muhammad Amir (2010 YLR 1073) and Mst. Parveen Akhtar and another v. Muhammad Sattar (PLD 2006 Lahore 410).
4. I have heard learned counsel for the petitioner at considerable length and have also gone through the documents appended with this petition as well as the case-law cited at bar. The prime question to be answered in this petition is as to whether the bar of section 24(2) of the Act can be pressed into service against a party who has already deposited certain amount towards Zar-e- Soam, as directed by the trial Court, or not. To respond to the said query, in my humble view, a perusal of section 24 of the Act is viable which for facility of reference is reproduced hereinbelow.
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 of the suit: ' Provided further that if no sale price is mentioned in the sale-deed or in the mutation, or the price so mentioned appears to be inflated, the Court shall require deposit of one-third of the probable value of the property.
(2) Where the plaintiff fails to make a deposit under subsection (1) within the period fixed by the Court or withdraws the sum so deposited by him, his suit shall be dismissed.
(3) Every sum deposited under subsection (1) shall be available for the discharge of costs.
(4) The probable value fixed under subsection (1) shall not affect the final determination of the price payable by the pre-emptor.
' A perusal of first proviso to subsection (1) of the afore-quoted section makes it clear that the plaintiff is bound to deposit Zar-e-Soam within 30 days of the institution of the suit. Now the question is from where the. Court would determine the quantum of the Zar-e-Soam. In this regard mechanism has been provided in 2nd proviso to section 24 ibid wherein it has been left upto to the court to fix Zar-e-Soam as per Sale Deed or Mutation or to adjudge the tentative price on its own. In the present case, irrespective of the fact that respondent No,3/plaintiff mentioned less sale price, the court directed respondent No,3/plaintiff to deposit Zar-e-Soam of Rs,1,60,000 being the sale consideration as mentioned in the plaint. Respondent No,3/plaintiff in compliance of order dated 2-5-2007 deposited Rs,1,60,000/- instead of 1/3rd thereof. In this scenario, the contention of the petitioner that respondent No,3/plaintiff did not deposit the Zar-e-Soam within the stipulated period is not tenable.
5. Insofar as the question regarding incorrect determination of Zare-Soam by the trial Court is concerned. I am of the considered opinion that petitioner cannot be penalized' for an act of the court especially when ,the order of the trial Court regarding determination of Zar-e-Soam was not challenged before any forum. Reliance, in this regard, is placed on the case reported as Muhammad Din and others v. Jamal Din and others (2007 SCMR 1091) wherein the august Supreme Court of Pakistan has inter alia been held as follows:--- "We have given our anxious consideration to the contentions of the learned counsel of the parties.
In case the judgments of all the Courts below are put in juxta position then it is crystal clear that all the orders/judgments were passed without judicial application of mind as evident from order dated 15-3-2002. Operative part of the judgment of the Additional District Judge and para.8 of the impugned judgment which did not contain any reasons. This Court has laid down parameters/guidelines that Courts have to decide the cases after judicial application of mind with reasons. See Gouranga Mohan Sikdar v. The Controller of Import and Export and others PLD 1970 SC 158 and Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173: After addition of section 24-A in the General Clause Act even the public functionaries are duty bound to decide the applications of the citizens after judicial application of mind with reasons as laid down by this Court in Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268. As mentioned above all the judgments and orders of the Courts below are not sustainable in the eyes of law in view of the law laid down by this Court in the aforesaid judgments. Therefore, Courts below have committed material irregularities while deciding the lis between the parties under section 24(1) of Pre-emption Act. It is settled proposition of law that the learned Courts entertaining the suits under the Punjab Pre- emption Act, 1991. Ought to examine the plaint and any material accompanying it while assing orders for deposit of 1/3rd and the amount payable and direct the parties to deposit the said amount in order to avoid complication later on. See Habibullah Khan's case 1995 SCMR 345, Awal Noor's case 1992 SCMR 746, Janat Gill Khan's case PLD 1993 SC 204, Haji Gul Nabi's case 1994 SCMR 845, Mian Asif Islam's case. 1999 SCMR 1350 and Haji Gul Nabi's case PLJ 1994 SC 201. It is an admitted fact that trial. Court had accepted the Probable value of the land in question in terms of annual sale average came to.Rs,3,85,471.88, order for deposit of Zar-e-Soem on 15-3-2002 wherein the respondents/plaintiffs were directed to deposit Rs,1.74.375. The respondents had complied the order, dated 15-3-2002 while depositing 1/3rd amounting to Rs, I ,74,375. In the interest of justice and fair play instead of remanding the case to determine the probable value of the property in question in term of section 24 of the. Punjab Preemption Act, 1991 we direct the respondents to deposit Rs,5,00.000 within one month excluding the sum of Rs,1,74,375 (already deposited by the pre-emptors). This is of course subject to final determination of the sale price by the trial Court and the trial Court shall determine the sale consideration without being influenced by the observation of this Court in accordance with law."
' Likewise, this court, while resolving such controversy, in Tariq Mehmood Anjum v. Allah Dina (2008 CLC 479) has held that--- "I have gone through the certified copies of the records appended with the assistance of the learned counsel. I have already reproduced the necessary details of the proceedings. As to what was price of the land that was paid by the appellant to the vendor is yet to be decided. However, the copy of the mutation (Annexure "I") shows that mutation was entered with reference to report No,15 in Roznamcha Waqiati and mentions the sale price as Rs,7,50,000 both in .Figures as well as in words. In the attestation order, however, a sum of Rs,37,50,000 is mentioned at two places. The appellant has appended Report No,38, dated 21-9-2005 (not Report No,15, dated 3-9-2005) and this also narrates that in the Mutation 2945 the sale price was mentioned as Rs, 7, 50, 000 and it was at the time of attestation that the amount was corrected with reference to the admission of the parties to the sale. I do, therefore, find that mala fide cannot be attributed to the respondent while mentioning the price as Rs,7,50,000 in the plaint.
4. Besides 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 Additional 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 I/3rd comes to Rs,12,50,000."
' Moreover, this court in a recent judgment reported as Mst. Nusrat Bibi v. Ghulam Ahmed (2012 YLR 41) laid law to the following effect:--- "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 1/3rd 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 subsection (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 within 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 I/3rd be deposited within 30 days. The learned Additional 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."
' 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 subsequent 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-Soain within stipulated period. No order as to costs."
If we adjudge the present case in view of the ratio decidendi 'of the afore mentioned case the indubitable conclusion is that nobody can be knocked out in view of the bar contained in subsection (2) of section 24 ibid especially when he has complied with the order passed by the court regarding deposit of Zar-e-Soam irrelevant of the fact whether the same was legal or not.
6. Insofar as rejection of plaint of the suit filed by respondent No,3/plaintiff under Order VII rule 11, C.P.C. Is concerned, I am of the view that the main ground taken by the petitioner in his application for the said purpose was that the plaintiff had not deposited Zar-e-Soam as per the amount of sale mentioned in the mutation, does not fulfil the requirement of Order VII, rule 11, C.P.C. For the reason that according to clauses (b) and (c) of the said Order, the court can reject plaint only when the plaintiff fails to correct the valuation or to make up the deficiency of stamp despite the time was granted to him but in the case in hand no such order was passed by the learned trial Court.
7. Now adverting to the petitioner's objection that in view of the bar contained in subsection (2) of section 24 ibid the observation of the learned Appellate Court regarding deposit of Rs,40,000 in furtherance of earlier amount of Rs,1,60,000 deposited by the plaintiff pursuant to order of the trial Court, I have no doubt in my mind that in all fairness and interest of justice, if the higher court comes to the conclusion that amount of Zar-e-Soam fixed by the trial Court was not in consonance with the material on record, it can direct to deposit the remaining amount. This proposition was beautifully elucidated by the august Supreme Court of,Pakistan in the case of Muhammad Din (supra) in the following words:- "It is an admitted fact that trial Court had accepted the Probable value of the land in question in terms of annual sale average came to Rs, 3,85,471.88, order for deposit of Zar-e-Soem on 15-3- 2002 wherein the respondents/ plaintiffs were directed to deposit Rs,1,74,375. The respondents had complied the order, dated 15-3-2002 while depositing I/3rd amounting to Rs, 1,74,375. In the interest of justice and fair play instead of remanding the case to determine the probable value of the property in question in term of section 24 of the 'Punjab Preemption Act, 1991 we direct the respondents to deposit Rs,5,00,000 within one month excluding the sum of Rs,1,74,375 (already deposited by the pre-emptors). This is of course subject to final determination of the sale price by the trial Court and the trial Court shall determine the sale consideration without being influenced by the observation of this Court in accordance with law."
8. As a necessary corollary to the discussion made in the foregoing paragraphs, it is held that penal provisions of subsection (2) of section 24 of the Act are not attracted in this case, therefore, both the forums below have rightly declined to reject the plaint of the suit filed by respondent No,3.
Resultantly, this writ petition is hereby dismissed in limine.