ABDUL LATIF KHAN, J:- Through instant Constitution petition, the petitioner has challenged the concurrent judgments & orders of both the Courts below dated 5.1.2015 passed by learned revisional Court and dated 17.7.2014, passed by learned trial Court whereby the application of petitioner seeking dismissal of suit of respondent No.1, was rejected and revision filed against the same was also dismissed.
Arguments heard and record perused.
2. A perusal of record reveals that plaintiff/respondent No.1 filed a suit for possession through preemption against the defendant by exercising his right of pre-emption in respect of sale effected through mutation No.4521 dated 24.6.2013, vide which land measuring 62.2 square yards out of Khasra Nos. 2445, 2446 situated in Havelian Urban in lieu of Rs.11,00,000/-. The plaintiff claimed that the transaction took place for sale consideration of Rs.7,00,000/- and in order to defeat the right of pre-emption of the plaintiff, an inflated amount of Rs.11,00,000/- was entered in the mutation and attested. The suit was filed on 22.10.2013 before learned Civil Judge-II, Havelian who directed the plaintiff to deposit 1/3rd of preemption amount in Court within 30 days and listed the case for 22.11.2013. The plaintiff moved an application on the same date i.e, 22.10.2013 for deposit of 1/3rd of preemption money. It is pertinent to mention that no amount of sale has been mentioned by the plaintiff in his application however the Moharir while making report has added the figure Rs.7,00,000/- in addition to the routine writing out of the line of which was allowed by the learned trial Judge resulting into deposit of 1/3rd of Rs.7,00,000/- by the plaintiff on 22.11.2013.
3. An application was moved by the defendant/petitioner for dismissal of suit on the ground that the plaintiff failed to deposit 1/3rd of preemption money of sale consideration mentioned in the mutation which was contested by respondent/plaintiff and the trial Court vide order dated 17.7.2014 dismissed the application filed by petitioner on the ground that the plaintiff was not at fault rather has complied with the direction of the Court, which is totally misconceived. The Revisional Court has also dismissed the revision petition on the plea that the party shall not suffer by the act of the Court, which too is misplaced. The Courts below have wrongly interpreted the act of the Court and have not evaluated the available record in true perspective. The preemptor/plaintiff has exercised his right of preemption against the transaction effected through mutation No.4521, column No.13 of which speaks about the sale consideration wherein a sum of Rs.11,00,000/- has been find mentioned. The amount assessed by the plaintiff to the tune of Rs.7,00,000/- would not be relevant in any eventuality for deposit of 1/3rd amount of preemption rather the amount of sale consideration mentioned in the instrument has to be considered for the purpose in terms of Section 24 of the KPK Pre-emption Act, 1987. The plaintiff has not mentioned the amount who ought to have mention the same in the application and while making report, the Moharrir of the Court was required to see the instrument on the basis of which the suit has been filed wherein amount of Rs.11,00,000/- has been mentioned. Similarly the trial Judge was under legal obligation to look into the matter and to have avoided to putting his initial without looking into the record. The negligence cannot only be attributed to the Moharrir of the Court but the plaintiff is equally responsible and he has to stand on his own legs to pursue his case and lateron to prove in the light of evidence. No doubt an act of Court shall prejudice no one, "Actus Curiae neminem gravabit" but the same is not applicable to the instant case as lukewarm attitude of the Court towards deposit of 1/3rd preemption amount leads this Court to the conclusion that it was not the act of Court rather omission on the part of the plaintiff who is responsible for the non-compliance of orders of Court.
The Courts below have not decided the matter pending before them with conscious and application of independent mind. The plaintiff has failed to deposit the amount as per direction of the Court which is clear to the effect that 1/3rd preemption amount be deposited within 30 days.
The preemption amount to be deposited by the plaintiffs in Court means, 1/3rd sale price of the property in cash. For convenience Section 24 of the KPK Preemption Act, 1987 is reproduced as under:- "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 and for the remaining two third furnish bank guarantees to the satisfaction of the Court 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, the Court shall require the deposit of one third of the probable value of the property, and a bank guarantee for the remaining two third of such probable value: Provided also that the plaintiff may, in lieu of bank guarantee, deposit the required amount in cash.
(2) Where the plaintiff fails to deposit one-third of the sale price or the probable value of the property and the required bank guarantee under subsection (1) with the period fixed by the Court, his suit shall be dismissed.
(3) Where the plaintiff withdraws the sum deposited by him or the bank guarantee furnished by him under subsection (1), his suit shall be dismissed.
(4) Every sum deposited under subsection (1) shall be available for the discharge of cots.
(5) The probable value fixed under subsection (1) shall not affect the final determination of the price payable by the preemptor."
4. A look of the above provision leads to the conclusion that the plaintiff has to deposit 1/3rd of the sale consideration/price of the property which is evident from the mutation and the Court shall require the deposit of 1/3rd probable value of the property which is find mentioned in the instrument as such the provision relating to deposit of 1/3rd pre-emption money has escaped notice of the Court of appeal.
5. Quite apart from this, the Court of appeal also ignored the vital aspect of the case to the effect that the plaintiff/respondent failed to deposit 1/3rd pre-emption amount within 30 days as per direction of the Court, made on 22.10.2013 and was allowed by the Court on the same day however it was kept pending by the plaintiff and on 22.11.2013, the 1/3rd of Rs.7,00,000/- was deposited which is beyond the prescribed time given by the trial Court in terms of Section 24 of the KPK Pre-emption Act, 1987. Needless to mention that time once given is not extendable. The plaintiff has deposited the 1/3rd amount on 31st day which is barred by one day and as such on this score too, the plaintiff failed to deposit 1/3rd of the sale price within time fixed by the Court and as such suit is liable to be dismissed in terms of subsection 2 of Section 24 of the KPK Pre-emption Act, 1987.
6. For the aforesaid reasons, we are of the view that the Courts below have not decided the lis pending before them with conscious and application of independent mind which are not sustainable therefore we allow this petition, set aside the impugned judgments and dismiss the suit of the plaintiff/respondents in terms of Section 24(2) of KPK Pre-emption Act, 1987.