' MEHMOOD MAQBOOL BAJWA, J.---Judgment dated 28th of November, 2012, recorded by a learned Additional District Judge, Wazirabad, has been called in question by the petitioner, pre-emptor, whereby while setting aside the order of a learned Civil Judge dated 19th of March, 2012, application under Order VII, Rule 11 of The Code of Civil Procedure (Act V of 1908), (Hereinafter called The Code) read with section 24(2) of The Punjab Preemption Act (IX of 1991) (Hereinafter called Act IX of 1991) was allowed while accepting the revision petition filed by respondent No,l.
2. Necessary facts which prompted the petitioner/ pre-emptor to file present writ petition are, that he instituted suit for possession through pre-emption against respondent No,1 in respect of land measuring 39 kanals and 9 marlas (detail of which has been given in para (1) of the plaint) claiming superior right qua the respondent alienated through mutation No,1556, attested on 12th of November, 2010, for a consideration of Rs,1,50,00,000 (Rs,15 Million). Ostensible sale price was disputed with assertion that in fact alienation was materialized for Rs,5 Million.
' Along with suit, application under Second proviso of section 24 of The Act IX of 1991 was filed for determination of probable value of property with assertion that inflated sale price was mentioned in mutation.
' On 25th of November, 2010, when suit was taken up by learned Civil Court, while taking note of the filing of the application, notice was issued to respondent No,1 for 3rd of December, 2012, but without making any order regarding deposit of Zar-e-Soium.
' Application made by the petitioner for determination of probable value of property was disposed of on 24th of December, 2010 with direction to deposit Rs,50,00,000 (Five Million) as Zar-i-Soium which amount was deposited by the petitioner on 3rd of January, 2011. Respondent No,1 made an application for dismissal of suit due to late deposit of 1/3rd of sale price which was disposed of by learned trial court while casting issue opining that said issue shall be decided along with issues framed on merits.
' Respondent No,1 filed revision petition which was decided by learned Revisional Court on 24th of September, 2011, with the direction to the learned trial court to decide the application on merits, upon which issue No,5 was cast and was treated as preliminary issue. After recording evidence, application was dismissed on 19th of March, 2012 but strangely enough without giving any specific findings. Aggrieved by the said order, revision petition was filed by respondent No,1 which was accepted by a learned Additional District Judge through judgment assailed, legality of which has been called in question by the petitioner through present Constitutional petition.
3. Learned counsel for the petitioner while questioning the legality and validity of impugned judgment submitted that suit was instituted on 25th of November, 2010, which was taken up on the same date but no order was made by learned trial court for deposit of "Zar-i-Soium" due to filing of application to determine probable value of the property and as such opinion formulated by learned Revisional Court regarding delay in deposit is mis-conceived. Elaborating the argument and referring to the provision of section 24(1) of The Act IX of 1991, it was submitted that the learned Civil Court did not "require" the petitioner to deposit the requisite amount on the day when suit was instituted and order was made on 24th of December, 2010, when application for determination of probable value was disposed of. With this background, it was submitted that deposit on 3rd of January, 2011, was legal tender. Argued that 24th of December, 2010, was last working day prior to winter-vacation in Civil Court and as such deposit of amount on 3rd of January, 2011, first working day after vacation was proper and legal which aspect was not properly attended by the learned revisional court. Further submitted that act of court shall not prejudice any litigant. To substantiate his contention, reliance was placed upon "Ladha. Khan, and others v. Mst. Bhiranwan" (2001 SCM R 533), "Nabi Ahmed and others v. Muhammad Arshad and others" (2008 SCM R 1685) and "Khalid Mehmood v. Abdur Rasheed and another" (2000 YLR 1249).
4. Repelling the contentions of adversary, defending the impugned judgment, placing reliance upon the provisions of section 24(1) of The Act IX of 1991, it was argued that "Zar-i-Soium" was to be deposited within 30 days from the date of institution of suit. Submitted that suit was filed on 25th of November, 2010 and as such deposit must have been made within 30 days from the said date but it was deposited on 3rd of January, 2011, which was beyond the statutory period. Placing reliance upon the dictum laid down in "Hasnain Nawaz Khan v. Ghulam Akbar and another" (PLD 2013 SC 489), it was argued that the petitioner was obliged to deposit "Zar-i-Soium" within 30 days, even if time was not mentioned by the learned trial court.
' Submitted that argument advanced by learned counsel for the petitioner regarding closure of civil court due to winter vacation from 25th of December, 2010, up till 2nd of January, 2011, would not advance plea of petitioner due to availability of Duty Judge.
' Further contended that court has no power to extend period of deposit as specified in the statute.
Help was sought from the Rule of law enunciated in "Muhammad Aziz v. Akhtarain Begum" (2004 SCM R 1709), "Khurshid Bibi through Muhammad Din v. Shahbaz Ali" (2006 CLC 1579), and "Inam-ul- Haq v. Muhammad All Shaheen and another" (2013 CLC 904).
5. Anxious consideration has been given to the arguments canvassed with reference to case-law cited at bar keeping in view the facts and circumstances of case.
6. Section 24(1) of The Act IX of 1991 which is relevant to settle the controversy is reproduced for ready reference:-- "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".
Language of subsection (1) clearly reveals that pre-emptor is bound to deposit one-third of sale price of the property in cash but the said period according to First proviso shall not exceed beyond thirty days of the filing of the suit.
' It is to be noted that in subsection (1), the word "Require" has been used casting duty and obligation upon the court to make a formal order of deposit of one-third sale price.
' The expression "Require" has not been defined in The Act.
' Same has been defined in Oxford Dictionary (New 7th Edition) as follow:- "(1) To need sth, to depend on sb/sth (2) (often passive) to make sb do or have sth especially because it is necessary according to particular law or set of rules".
' In Webster's New World Dictionary, it means:- "(1) To ask or insist upon, as by right or authority, demand, (2) To order, command (To require someone to be present), (3) To be in need of, (4) To call for as necessary or appropriate, (5) To demand by virtue of law, regulation etc. (6) to ask for, request-vi (Now rare) to make a demand"
7. Keeping in view the above definition, it becomes crystal clear that there must be an order of the court demanding the pre-emptor to deposit the one-third amount of sale price within the time fixed.
' Duty of pre-emptor is subject to mandate of the court to deposit the amount in order to entail the penal consequences.
8. In view of the above state of law, facts of the present case are to be examined.
' As referred earlier, suit was instituted on 25th of November, 2010, and same was put up before the learned Civil Court on the same day with the report of ministerial official, upon which following order was made by the court:-- "This is fresh suit for pre-emption which be registered along with application under Section 24 of the Pre-emption Act 1991 has been filed that the inflated rate of property is much below the price mentioned in the sale mutation for which the patwari/Annual assessment has been produced.
The sale mutation, on which the right of pre-emption is claimed as Rs,1,50,00,000, on which the 1/3rd normally required to be deposited within 30 days but as the application under Section 24 has been filed on which notices to the respondent/vendee is necessary to be given, therefore, notice is issued for 3-12-2010". (Emphasis supplied).
Perusal of the said order clearly demonstrates that on the day of institution of suit, no order was made by the trial court directing the petitioner being preemptor to deposit one-third of sale price.
Examination of the Whole order as it is, also gives the reason not to make order for deposit of "Zar- i-Soium" because in the opinion of learned trial court, application for determination of probable value has to be decided. While dealing with the moot point reason given in- the order is not to be examined on the touchstone of provision of law under discussion.
9. However, on 24th of December, 2010, when application under section 24 of The Act IX of 1991 was disposed of, order was made for deposit of "Zar-i-Soium". Relevant portion of order is reproduced for ready reference:-- "........... This requires evidence in regular suit and in case it is proved that the sale price was exaggerated, the pre-emptor would be entitled for refund of the excess amount under section 25, therefore, at this stage, the pre-emptor is under obligation to deposit 1/3rd of the sale price mentioned in the sale mutation, for which he is directed to deposit Rs,50,00,000 and due to winter vacations, the case is adjourned for 4-1-2011." (underlining is mine).
Last lines of the order reveals that trial court "required" the petitioner to deposit one-third of sale price on 24th of December, 2010 and not on 25th of November, 2010 i,e, date of institution of suit.
Keeping in view the first proviso of Section 24 of The Act IX of 1991 fixing the maximum period of deposit one-third of sale price of the filing of the suit, though appropriate order should have been made but admittedly no such order was made on first date and petitioner was asked to deposit "Zar-i-Soium" on 24th of December, 2010, therefore, period of 30 days shall be reckoned from the date of said order keeping in view the expression "Require" used in section 24 (1) of The Act IX of 1991.
' First proviso shall come in operation when appropriate direction was issued by trial court under subsection (1) of section 24 of The Act IX of 1991.
' Since no order was made on the day of institution of suit, therefore, the petitioner shall not be held liable due to the act of court in view of maxim "Actus nemini facit injuriam".
Duty of pre-emptor to deposit requisite portion of sale price is though corresponding but subject to mandate of trial court within the meaning of section 24(1) of The Act IX of 1991.
10. Similar proposition was moot point before this Court in "Khalid Mehmood v. Abdur Rasheed and another" (2000 YLR 1249) and it was held that due to failure of trial court to make an order for deposit of one-third of sale price, the pre-emptor cannot be penalized.
11. It is to be noted that in order dated 25th of November, 2010, the trial court conscious of its duty to make order under Section 24(1) of The Act IX of 1991 did not pass the order due to filing of application for determination of probable sale price.
' Had there been mere omission on the part of trial court to make order on that day, it could have been pleaded on behalf of respondent No,1 that petitioner was bound to make compliance of the provisions of section 24(1) of The Act IX of 1991 irrespective of the binding force of submission.
In the circumstances, if petitioner being pre-emptor is non-suited, it would amount to make the expression "court shall require the plaintiff" redundant which would be against the intention of legislature.
12. I have gone through the Rule of law expounded in "Hasnain Nawaz Khan v. Ghulam Akbar and another" (PLD 2013 SC 489) relied upon by learned counsel for respondent No,1 in which while interpreting provision of section 24(1), it has been authoritatively held at page 497 that trial court is obliged and duty bound to require the plaintiff to deposit with the court one-third of sale price.
' However, while examining the first proviso, it was held that pre-emptor shall be bound to deposit the requisite. Amount within 30 days despite lapse and omission on the part of trial court to specify the time for deposit.
' In view of the matter, Rule of law cannot advance plea of respondent No, 1
13. Since deposit on 3rd of January, 2011, was made within 30 days of passing of the order requiring the petitioner being pre-emptor to deposit the amount, therefore, the penal consequences highlighted in Section 24 (2) of ibid would not attract to the facts of the case.
' It is to be noted that in the order dated 24th of December, 2010, period in which deposit had to be made was not mentioned and as such if the petitioner had deposited the amount beyond the period of 30 days, Ratio expounded in "Hasnain Nawaz" (supra) would have applied to the present case with full force.
14. As the deposit was made by the petitioner within the time fixed by the statute, therefore, there is no need to deal with the respective arguments regarding exclusion of time of winter vacation.
15. There is no cavil to the proposition that time fixed by the statute cannot be enlarged.
16. Pursuant to above discussion, judgment rendered by learned revisional court assailed through present writ petition is legally not sustainable and as such while setting aside the same, suit instituted by the petitioner shall be deemed to be pending before the Senior most learned Civil Judge 1st Class, Wazirabad, which shall be decided in accordance with law.