1. MRS. IRSHAD QAISAR, J.--- Petitioner/plaintiff filed the present revision petition under section 115, C.P.C. against the judgment andorderoflearnedAdditionalDistrictJudgeIII,Swabiofdated 20-7-2012 whereby the appeal of the petitioner against the judgment of trial Court dated 7-5-2012 was dismissed and confirmed the judgment of trial Court whereby he had rejected the plaint of the petitioner under Order VII, rule 11, C.P.C.
2. 2.The brief but relevant facts of the case are that petitioner/plaintiff filed a suit for possession through pre-emption of the suit property, the detail of which is given in the heading of the suit. At the very date of registration of the case on 17-1-2012 the plaintiff/ petitioner was directed to deposit 1/3 of pre-emption amount within 30 days and case was fixed for 17-2-2012 for the issuance of summons to respondent. On appearance defendant/respondent submitted an application under Order VII, rule 11, C.P.C. for rejection of suit on the ground that plaintiff failed to deposit 1/3rd of pre- emption amount. Application has been contested by plaintiff and after hearing the arguments, trial Court dismissed the suit of the plaintiff vide judgment dated 7-5-2012 by holding that non-deposit of one third of the sale price by plaintiff would entail dismissal of his suit under subsection (2) of section 24 of N.-W.F.P. Khyber Pakhtunkhwa Pre-emption Act. Against this judgment petitioner filed an appeal which also met the same fate hence present revision petition.
3. 3.Admittedly petitioner has not deposited the required 1/3rd of the sale consideration as mentioned in the disputed mutation, resultantly on application moved by respondent/defendant his suit has been dismissed by the Court for non-deposit of the amount under section 24(7) of the Act, which order has been maintained by Appellate Court. Learned counsel for the petitioner argued that the order of the trial Court with regard to zar-soem was not clear in term that the amount required to be deposited was not specifically mentioned and plaintiff on his own presumption deposited the one third of the amount which he alleged to be the actual and genuine sale consideration. He also submitted that he was ready to deposit the balance amount as per the direction of the Court and that he may not be non-suited for the error of the Court.
4. 4.In order to appreciate the above submission, it seems expedient to dilate upon the purpose, the spirit and the nature of section 24 of the Act, the provision thereof read as follows:--- Section 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.
5. (2)Where the plaintiff fails to make deposit under section (1) within the period fixed by the Court or withdraws the sum so deposited by him, his suit shall be dismissed.
6. (3)Every sum deposited under subsection (1) shall be available for the discharge of costs.
7. (4)The probable value fixed under subsection (1) shall not affect the final determination of the price payable by the pre-emptor.
8. While interpreting the said section it has been held in various dicta of superior Courts, that the object of the deposit is to guarantee the vendee against frivolous proceedings on part of the possible pre-emptor and is a token of good faith on pre-emptor part; and such deposit shall also be available for the discharge of the costs (section 24(3)). Reference is made to Sanwal Das v.
9. Jaigo Mal and others (AIR 1924 Lahore 68) and Mst. Sakina Begum v. Mst. Surat Bibi (1991 CLC 398) such interpretation qua its scope and nature is true for the present section 24 ibid as well. Besides, from the plain reading of the above, it is obvious that the Court is under a legal obligation and has to require mandatory the plaintiff pre-emptor to deposit zar-e-soem and for that purpose it has the discretion to fix a specific time-frame. However, in view of the provisotosection24(1)suchperiodcannotandshouldnotexceed 30-days, rather it is a specific constraint on the jurisdiction/discretion of the Court and any order of the Court permitting the pre- emptor to make the deposit beyond 30 days shall be in violation of law and thus illegal and untenable in the eyes of law.
10. As per section 24(2), if the plaintiff-pre-emptor fails to make the deposit in terms of subsection (1), his suit is liable to be dismissed. This part of the section is so obvious and call for no other interpretation. Therefore, on the basis of unambiguous and unequivocal wording of the noted section, there is no doubt that the provisions thereof are mandatory and if the pre-emptor has failed to comply with the order of deposit his suit has to fail.
11. 5.In the present case the sale price of the suit-land, as mentioned in disputed mutation, admittedly was 400,000 and according to law plaintiff was to deposit 1,33,333 as 1/3rd of sale price but plaintiff has deposited Rs.33500. Record shows that plaintiff was well-versed with the sale price and it was in his knowledge as in para No. 1 of his plaint the petitioner has averred that the sale consideration of Rs.400,000 as mentioned in the impugned mutation was inflated and exaggerated as the market value of the suit-land is not more than 100,000. The contention of the petitioner that he had deposited 1/3rd of that amount which he presumed/ alleged to be the sale price cannot be accepted as the actual sale consideration and the market value has to be determined by the Courtatthetimeofitsfinaladjudicationofthecaseunder sections 27/28 of the Act. The requirement of deposit of one third of the sale price under section 24 of Act refers to the price which is reflected to the deed/sale mutation to be deposited within the period fixed by Court. There is an exception of this and that is when no sale price is mentioned in mutation of sale-deed, then in that case Court would ask for the deposit of 1/3rd of probable value of the suit property. In the present case the sale consideration is clearly fixed/mentioned in the mutation and also reflected in the plaint, thus the order of the trial Court for deposit of 1/3rd of zar-e-soem (pre-emption amount) is very clear. There is no confusion and ambiguity of the order. Since the disputed Mutation No.2573 dated 20-9-2011, wherein definite amount is mentioned, is the subject-matter of this suit for possession through pre- emption; therefore, he was bound to deposit 1/3rd of sale amount and it was not his discretion/sweet-will to deposit 1/3rd of that amount which he presumed and alleged to be the sale consideration.
12. 6.It is settled law that pre-emption rights, being a feeble right, pre-emptor seeking to exercise such right was bound to perform and fulfil its requirement meticulously and any failure in that behalf would deprive him of success in getting a pre-emption degree. Reference in this respect is made to 2009 MLD Peshawar 837. Reference may also be made to 2008 CLC Lahore 1559, wherein it is held;--- "Since the plaintiff/petitioner had not complied with the mandatory provision of law zar-e-soem 1/3rd of the sale amount as per section 24 of pre-emption Act, 1987 was to be deposited within time prescribed by the Court not exceeding 30 days and under section 24(2) of the said Act, the suit on account of non-deposit of required zar-e-soem was to be dismissed."
13. 7.In the light of above, I hold that the case of the petitioner was squarely hit by subsection (2) of section 24 of the Act ibid and his suit was liable to be dismissed and this is what has happened at both the stages below. Learned counsel for the petitioner being unable to point out any illegality or any substantial defect or error in the impugned order of both the Court below. Therefore, the concurrent findings of both the Courts below cannot be interfered by this Court in exercise of revisional jurisdiction and the present revision petition being devoid of any force is hereby dismissed in LIMINE with no order as to cost.