1. ' MUHAMMAD AZAM KHAN, C.J.-The appellant filed a suit in respect of plot No.4, measuring 60'x90'
2. (kanal), situate in Lower Chatter, Muzaffarabad, on the basis of right of prior purchase in the Court of District Judge, Muzaffarabad on 17-11-2012. The written statements were filed on 17th December, 2012. The trial Court ordered the plaintiff to deposit one-fifth of probable consideration amount till next date of hearing which was fixed as 28th December, 2012. On the date fixed, the plaintiff, appellant herein, moved an application for extension of time and also filed another application that the order be reviewed and he may be allowed to furnish surety bond instead of cash deposit.
3. The case was fixed for 7th January, 2013 and then to 16th January, 201.3. On 16th January, 2013, the defendant filed an application for rejection/dismissal of the suit under subsection (4) of section 21 of the Azad Jammu and Kashmir Right of Prior Purchase Act, 1993, (BK), (hereinafter to be referred as Act, 1993 (BK)). After hearing the arguments on the application the trial Court rejected the application of the plaintiff and refused to amend the order dated 17th December, 2012. The application of defendant for rejection of plaint was also dismissed. The trial Court also extended the time for depositing 1/5th of probable consideration amount. The said order was challenged by both the parties through separate revision petitions. The full bench of the High Court through impugned judgment dated 7th November, 2013, dismissed both the revision petitions and plaintiff was directed to deposit 1/5th of ostensible price within fortnight from the date, the order is communicated to his counsel. This order is subject of appeal by leave of the Court.
2. Mr. Abdul Rashid Abbasi, appellant, while, arguing the case himself, submitted that the order passed by the High Court is against law and the record. He argued that under section 21 of the Act, 1993 (BK), the trial Court has jurisdiction to change the order from depositing of cash amount to furnishing the security and from security to cash deposit. He submitted that the purpose for filing the security or cash deposit equal to 1/5th of ostensible price, is to ensure that the costs of the case be met, if ordered by the Court. The High Court failed to consider this aspect of the case. The appellant submitted that earlier view regarding the right of pre-emption was that it is a predatory right. This view has been discarded by the Courts after amendment in the law of pre-emption while bringing it in conformity with the injunctions of the Holy Quran and Sunnah. The appellant submitted that terming the deposit of cash security as a "safe-guard against vexatious and mala fide litigation" is against the spirit of the provisions of statutory law. The finding of the High Court that the deposit of 1/5th of the ostensible price is a token of good faith which constitutes a guarantee that plaintiff will meet whatever demand is made for money, is not a correct interpretation of the relevant provisions of the Act, 1993 (BK). The appellant forcefully argued that his bona fide is apparent from the fact that he has accepted the sale price as mentioned in the sale-deed without questioning the truth or otherwise of the transaction insofar as the sale consideration is concerned. The learned counsel relied upon the cases reported as Inayatullah and others v. Mst. Khurshid Akhtar (1986 SCM R 687), Government of N.W.F.P. Through Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360), Ch. Zulfiqar Ali v. Mian Akhtar Islam, and others (PLD 1967 SC 418), Rehmatullah v. Khalil-ur-Rehman and another (1992 CLC 1844), Mst, Resham Jan v. Khan Nawab Khan and others (PLD 1970 AJ&K 66), Government of N. W. F. P. Through Secretary and 3 others v. Mejee Flour and General Mills (Pvt.) Ltd. Mardan and others (1997 SCM R 1804).
4. ' The case titled Inayatullah and others v. Mst. Khurshid Akhtar (1986 SCM R 687) relates to extension of time for deposit of Zar-e-Panjum. The case is not related to alteration of order from Zar-ePanjum to security.
5. ' In the case titled Government of N.W.F.P. Through Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360), the Shariat Appellate Bench of Supreme Court declared certain provisions of Pre-emption Act against the Holy Quran and Sunnah.
6. ' In the case titled Ch. Zulfiqar Ali v. Mian Akhtar Islam and others (PLD 1967 SC 418), the trial Court ordered the pre-emptor to furnish security of the full amount of probable value upto certain date and on the date fixed the pre-emptor filed security. The defendant objected to the security on the ground that the stamp duty was insufficient. The case was fixed for arguments on the next date.
7. The plaintiff offered to deposit security equivalent to 1/5th of ostensible price in cash. He was allowed by the trial Court. The matter came up to the Supreme Court and the Supreme Court observed that the trial Court has power to alter the order and can exercise the power for demanding security more than once within the time provided, the Court while passing the order shall keep in mind that subsection (1) of section 22 of Pre-emption Act, 1993 (BK), is intended to "safeguard against vexatious and mala fide litigation, and thus to guarantee a vendee against frivolous proceedings on the part of possible pre-emptors."
8. ' In the case titled Rehmatullah v. Khalil-ur-Rehman and another (1992 CLC 1844), a decree on the basis of right of prior purchase was passed in favour of the plaintiff. He deposited the decretal amount in compliance of the Court order but later on, he withdrew the purchase price from the Court whereupon the vendee moved an application in the trial Court for cancellation of the decree.
9. The decree was cancelled. The appeal before the District Judge failed but the High Court accepted the appeal. The vendee filed an appeal in this Court. This Court observed that section 21(5) of Act, 1993 (BK), is relevant for the purpose of security deposit, it has nothing to do with the purchase price which has to be deposited after passing the decree. In the case titled Mst. Resham Jan v.
10. Khan Nawab Khan and others (PLD 1970 AJ&K 66), a Division Bench of Azad Jammu and Kashmir High Court observed that the order for deposit of cash or security can be varied at its option by the Court. Such options shall be exercised only before settlement of issues. In the case titled Messrs Gadoon Textile Mills and 814 others v. WAPDA and others (1997 SCM R 641) while dealing with the discretionary powers, the Supreme Court of Pakistan held "that it is by now a well-settled proposition of law that even where there is no guideline or guiding rules provided for exercise of discretion, it is not unbridled or unfettered but the same is to be exercised reasonably, fairly and justly without giving any cause of complaint, to any person who may be interested in the exercise of such discretion."
11. ' In the case titled Government of N.W.F.P. Through Secretary and 3 others v. Melee Flour and General Mills (Pvt.) Ltd. Mardan and others (1997 SCM R 1804), the Supreme Court of Pakistan held that "the general principles that discretionary decisions should be made according to rational reasons means; (a) that there be findings of primary facts and good evidence and; (b) that decisions about the facts be made for reasons which serve the purposes of the statute in an intelligible and reasonable manner."
4. While controverting the arguments, Sardar Karam Dad Khan, Advocate, counsel for the other side, submitted that judgment of the High Court is perfectly legal. He submitted that no doubt that section 21 of the Act, 1993 (BK), provides two means for deposit of one-fifth of total consideration money as cash deposit and the security, but the legislature has conferred this power in the Court to exercise the same in the interest of justice. The Court has to see bona fide of a party. If the pre- emptor is not ready to deposit 1/5th of the ostensible price or value as security in cash it means his suit for pre-emption is not bona fide one and suit has been filed only to harass the bona fide purchaser, therefore, the trial Court rightly rejected the application for amending the order in the instant case. The learned counsel submitted that the Pre-emption. Law has been amended and it has been brought in conformity with the injunctions of Islam and section 21 of the Act, 1993 (BK), is perfectly in accordance with the provisions of Islamic Law. It has to be applied in letter and spirit: The trial Court and the High Court have passed correct orders. The defendants have raised an objection in the written statement that the plaintiff is not a bona fide pre-emptor. The; provisions of section 21 of the Act, 1993 (BK), are mandatory in nature. This Court and the Courts of Pakistan have in categorical terms declared that order passed under section 21 for deposit of cash or security cannot be altered by the Court. The learned counsel relied upon the case reported as Mst. Zulaikha Khatoon, v. Ch. Muhammad Yasin and 5 others 2004 CLC 1443, Muhammad Arif and others v.
12. District and Sessions Judge Sialkot and others (2011 SCM R 1591), Happy Family Associate through Chief Executive v. Messrs Pakistan International Trading Company (PLD 2006 SC 226) and Industrial Development Bank of Pakistan v. Messrs Nadeem Flour Mills and others (1981 SCM R 143).
13. ' In the case titled Mst. Zulaikha Khatoon v. Ch. Muhammad Yasin and 5 others 2004 CLC 1443 the trial Court in a suit for pre-emption directed the plaintiff to deposit 1/5th of the probable consideration amount in one month's period. The plaintiff moved an application for modification of order in terms that permission to furnish personal surety be granted. The application was dismissed, however, the trial Court without any request extended the time. The High Court set aside the order of the trial Court in revision petition. This Court refused to grant the leave while observing that the provisions of section 21 of the Right of Prior Purchase Act are mandatory in nature and the same are to be construed strictly. The right of pre-emption is a piratical right which deprives of the lawful owner to purchase certain property on the basis of right of prior purchase. In the case titled Muhammad Arif and others v. District and Sessions Judge Sialkot and others (2011 SCM R 1591), it has been observed that to carry out the intention of legislation it may be necessary to read "and" as "or" and vice versa.
14. ' In the case titled Happy Family Associate through Chief Executive v. Messrs Pakistan International Trading Company (PLD 2006 SC 226), a decree was passed in a money suit. The defendant failed to challenge the decree by way of appeal. Instead, he filed an application under section 12(2), C.P.C. The application was dismissed. The appeal before the High Court failed. The Supreme Court refused to grant the leave. The case is not relevant for the purpose of present case.
15. ' The case titled Industrial Development Bank of Pakistan v. Messrs Nadeem Flour Mills and others (1981 SCM R 143) was filed under the provisions of the Industrial Development Bank of Pakistan Ordinance (XXXI of 1961) it has no nexus with the case in hand.
5. We have heard the appellant, learned counsel for the respondent and perused the record as well as the case-law referred to by the counsel for the parties. Section 21 of the Act, 1993 (BK), deals with the deposit of sums equal to 1/5th of the probable value of the subject matter or security. The same is reproduced as under:-- "21. (1) 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 is 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 probable value within such time as the Court may fix in such order.
(2) In the, case of an appeal, the Appellate Court may at any time exercise the powers conferred on a Court under subsection (1).
(3) Every sum deposited or secured under subsection (1) or (2) shall be available for the discharge of costs.
(4) If the plaintiff fails within the time fixed by the Court or within such further time as the Court may fix to make the deposit or furnish the security under subsection (1) or (2) his plaint shall be rejected or his as the case may be.
16. (5).....................
(6) .......................
17. A plain reading of subsection (1) of section 21 of the Act, 1993 (BK), shows that it is mandatory for the Court to order for deposit of security to the plaintiff whether equal to one-fifth of the probable value of the land or require him to give the security to the satisfaction of the Court not exceeding the probable value of the property. The Court has two options; one A that the court may order to deposit security in cash equal to one-fifth of the probable value of the land or security in other form not exceeding the probable value. This power has to be exercised before the settlement of issues. The Court has n jurisdiction to order for cash deposit or other security after framing the issues. This Court in a case titled Mst. Zulaikha Khatoon v. Ch. Muhammad Yasin and 5 others 2004 CLC 1443 has observed that provisions of section 21 of the Act, 1993 (BK), are to be construed strictly. It has been observed in para 8 of the judgment as under:-- "8. So far as the provisions of section 21 of the Right of Prior Purchase Act are concerned, it has been held time and again that these provisions arise out of a special statute which are mandatory in nature and the same are to be construed strictly. It has been observed in various authorities that the right of pre-emption is a piratical right which ' deprives lawful owners of their right to purchase certain property on the basis of their right of prior purchase. In these circumstances, the High Court committed no error in accepting the revision petition filed by respondent No. 1 ."
18. ' The Azad Jammu and Kashmir High Court in the case titled Mst. Resham Jan v. Khan Nawab Khan and others (PLD 1970 AJ&K 66), while relying upon the judgment of Supreme Court of Pakistan delivered in the case titled Ch. Zulfiqar Ali v. Mian Akhtar Aslam and another (PLD 1967 SC 418) observed that the powers vested in the trial Court under section 21 for ordering the plaintiff to deposit security are not limited. These may be exercised by the trial Court more than once with the condition that these powers are available to the Court before framing the issues. In the referred case, the proposition came before the Supreme Court of Pakistan in the circumstances that in pre- emption suit, the trial Court required the plaintiff to furnish security equal to the probable value upto a certain date. On the said date the security bond was filed by the plaintiff. The vendee objected on the bond on the ground that the stamp duty was insufficient. The Court fixed the date for arguments. On the said date the plaintiff expressed his willingness to deposit Zar-e-Punjum. The trial Court permitted him to do so and he actually deposited the cash amount. The Supreme Court held that powers vested in the Court under section 22 of the Punjab Pre-emption Act, were not confined to be exercised only once. These may be exercised more than once with the condition that the powers are to be exercised before framing the issues. In Ch. Zulfiqar Ali's case referred to above it was observed as under:- "The question which then arises is whether the trial Court was competent to vary its original order requiring security and to replace it by an order in the alternative form allowed by the law, viz., an order for deposit of one-fifth of the purchase price. At the date when the order of the 30th July, 1959, was made, issues had not yet been settled. In Zaman Mehdi Khan's case and that of Raja Khan, expressions have been used which indicate that in this view of the learned Judges of the Lahore High Court, such a power does exist, but it must be exercised before the settlement of issues and it must be exercised expressly That view is in our opinion, supportable upon a consideration of the wording of subsections (1) and (4) of section 22. There is nothing in subsection (1) to indicate that the choice can be made only once in a suit. It is well-known that the requirement of a cash deposit or security contained in the subsection is intended to guard against vexatious and mala fide litigation, and thus to guarantee a vendee against frivolous proceedings on the part of possible pre-emptors. The deposit is a token of good faith, and equally the security for the full amount of the purchase price constitutes a guarantee that plaintiff will meet whatever demand is made for money in case his suit succeeds."
19. We respectfully agree with the view of the Supreme Court of Pakistan expressed in the above referred case that the trial Court has power to vary its order for deposit of security as the case may be subject to condition that the powers may be exercised before the settlement of issues.
6. In the suit for possession on the basis of right of prior purchase filed by the plaintiff, appellant herein, the defendant filed written statement on 17th December, 2012. The trial Court on the same date ordered the plaintiff to deposit one-fifth of ostensible price till next date of hearing which was fixed as 28th December, 2012. The plaintiff failed to comply with the order of the Court on the said date. Instead, the plaintiff moved an application for filing security bond and also filed an application for extension of time. The trial Court fixed the case for 7th January, 2013. On the said date, the plaintiff filed another application for extension of time. The case was fixed for 16th January, 2013. The defendant on the said date filed an application under section 21(4) of the Act, 1993 (BK), for rejection of the plaint. The trial Court vide order dated 9th July, 2013, dismissed the application for altering its order from depositing one-fifth of ostensible price to security bond but granted the extension in time till 25th July, 2013 for depositing one-fifth amount. The High Court while disposing off the revision petitions observed that there is no illegality in the order passed by the trial Court. The plaintiff claims that the land has been sold against the price of Rs.8.5 million.
20. The one-fifth amount comes to 1.7 million rupees. If the order is not altered, a huge amount of Rs.1.7 million of the plaintiff will stuck without any reason. The plaintiff, appellant himself while arguing stated that the orders have to be passed in an equitable manner. #If the plaintiff seeks equity for himself he must do equity in favour of the other party. The vendee has purchased the land against the price of Rs.8.5 million and due to filing of pre-emption suit his huge amount shall remain stuck till the disposal of the case. The plaintiff has to prove his bona fide by acting in an equitable manner. Sub-#TS##section (3) of section 21 of the Act, 1993 (BK), in clear term provides that the amount deposited under subsection (1) or (2) shall be available for the discharge of costs and penal clause has been provided in subsection (4) that if the plaintiff fails to deposit or furnish the amount of security within time specified by the Court, the plaint shall be rejected or appeal shall be dismissed.
21. ' The result of the above discussion is that the trial Court as well the High Court passed the orders in a legal manner. No illegality is found in the judgment of the High Court. The appeal is dismissed with no order to costs. The plaintiff-appellant is allowed 8 day's time for depositing the same equal to one-fifth of ostensible price from the date of announcement of the judgment. No order as to costs.