' HAIDER ALI KHAN, J.--- Through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has sought the following relief:- "It is, therefore, prayed that on acceptance of this writ petition the impugned orders and judgments of the learned Courts below may graciously be declared illegal, unconstitutional, without lawful authority and without jurisdiction and may kindly be set aside. The learned trial Court may please be directed that after recording pro and contra evidence of the parties, the issue of pre-emption amount may be decided once for all in accordance with law. Any other remedy which is just, efficacious and appropriate may also be awarded though no specifically been prayed for in the instant writ petition, but the interest of justice demand so".
2. Brief facts of the case are that the petitioner/plaintiff filed a preemption suit against the respondents/defendants wherein he, mentioned the sale price of the land sought to be pre- empted as Rs,6,00,000/- and as per direction of the Court deposited 1/3rd (Rs,2 00,000/-) of the said sale price. Afterwards, the respondents/defendants submitted written statement and relied on an agreement to sell wherein the sale between the concerned parties was stated to have been effected at Rs,40,88,000/-. The respondent-defendants also filed an application to the effect that the petitioner/plaintiff may be directed to make up the deficiency in the sale price and deposit 1/3rd of the stated sale amount i.e, Rs,40,88,000/-. The petitioner/plaintiff opposed the said application by filing his reply, however, the application was accepted by the trial Court on 21.3.2013 by holding that the petitioner/plaintiff should deposit one-third of the sale price mentioned in unregistered deed annexed with the written statement and according to Section 24 of the Pre- emption Act, the deficiency must in all circumstances be made up by the petitioner/plaintiff.
Feeling aggrieved of the aforesaid order, the petitioner/plaintiff filed a civil revision before the revisional Court which was dismissed by the learned Additional District Judge/Izafi Zilla Qazi-II, Swat vide his judgment dated 15.5.2013, hence the instant writ petition.
3. Learned counsel for the petitioner contended that the actual sale price of the suit land is Rs,600,000/- and the petitioner/plaintiff has deposited 1/3rd of the same i.e, Rs,200,000/- as per directions of the trial Court. He further contended that the learned trial Court has framed issue No, 7 regarding the market price of the suit land but the same issue has been decided on application of the respondents/defendants prior to recording of evidence.
4. On the other hand, learned counsel for the respondents/ defendants contended that the suit property has been purchased in lieu of Rs,40,88,000/- through an unregistered sale deed, which has been annexed with the written statement of the respondents/defendants. He further contended that in view of the documentary evidence produced by the respondents/defendants,.
Plea of the petitioner/plaintiff is baseless and his writ petition is liable to be-dismissed.
5. We have heard learned counsel for the parties and have gone through the record.
6. The record shows that the learned trial Court has failed to apply its independent mind to the facts of the case and has passed the order of depositing 1/3rd of the purchase amount in a mechanical fashion. It acted on the sheer statement of the plaintiff that the sale price of the land in question was Rs,600,000/- but when the written statement was filed by the respondents/defendants, they annexed therewith agreement dated 11.12.2010 wherein sale price was mentioned to be Rs,40,88,000/-. Undoubtedly, there is huge difference of sale amounts as stated by the petitioner/plaintiff and the respondents/defendants. Hence, the trial Court was obliged to have applied its own independent mind and in that behalf the law has given the trial Court ample power enshrined in section 24 of the Khyber Pakhtunkhwa Pre-emption Act, 1987 which is reproduced as under;- "Petitioner 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 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.
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7. It is again noteworthy that the prices alleged by both the parties are not based on any document to which the presumption of correctness is attached. Both the prices alleged by the parties at this stage of the trial require legally admissible evidence in support thereof, therefore, both the learned Courts below were obliged to have ascertained the probable market price of the land thus pre- empted by adopting any mode for the purpose of depositing 1/3rd of the sale price as contemplated in section 24 of the Act i.e, (i) ascertaining of the price through one year average or
(ii) by fixing tentative market price and so on.
8. In view of what has been discussed above, we accept this writ petition, set aside judgments of both the Courts below and direct the learned trial Court to ascertain the probable market value of the suit property by pressing into service proviso to section 24 of the Khyber Pakhtunkhwa Pre- emption Act, 1987 and direct the petitioner/plaintiff accordingly to deposit 1/3rd of the price so fixed and then proceed with the case in accordance with law.