' ABDUL LATIF KHAN, J.---The appellant has filed the instant regular first appeal against the judgments and orders dated 5-10-2013 and 7-10-2013 passed by Muhammad Tayyib Jan, Civil Judge/Illaqa Qazi-IV, Swat, whereby application filed by respondent No. 1 for the dismissal of suit was accepted and suit of the appellant/plaintiff was dismissed.
2. Arguments heard and record perused.
3. A perusal of record reveals that suit for possession through preemption was filed by the plaintiff on 9-1-2013 in respect of property comprising upon five (5) shops, boundaries of which are given in the heading of plaint situated near an old Post office Road, near Taj Chowk, Mingora, Swat, sold by defendants Nos. 2 to 6 in favour of defendant No. 1, through sale-deed in lieu of Rs. 30 lacs. The suit was contested by the respondents/defendants by filing written statement, wherein it was averred that the property has been purchased by defendant No. 1 through registered deed in lieu of sale consideration of Rs. 3 crores & 30 lacs. It is pertinent to mention that the trial Court has not passed the order on 9-1-2013, when suit was filed by the plaintiff despite of the fact that it was made obligatory upon the Court to pass an order under Section 24 of the Khyber Pakhtunkhwa, Pre- emption Act, 1987 in suit for pre-emption to require the plaintiff to deposit 1/3 rd of the sale price of the property in cash within such period as the Court may fix, proviso to the referred section reveals that if sale price is not mentioned in the sale consideration or in the mutation, the Court was required to deposit 1/3rd of the probable value of the property. It is astonishing to note that trial Court has failed to perform the duties entrusted to it by the legislature, as no order passed for deposit of 1/3rd of the sale price. It is made obligatory for the Court to pass an order on first date of institution of suit for possession through pre-emption to pass an order requiring the plaintiff to deposit 1/3rd of the sale price of the property in cash within such time, as the Court may fixed. The legislature has entrusted the duty upon the Court to perform strictly in accordance with law. The trial Court has failed to direct the plaintiff for deposit of 1/3rd of the sale consideration before the specified date and after about four (4) months when the defendants filed written statement on 15- 4-2013 an order has been passed to the effect that order for deposit of 1/3rd pre-emption money was inadvertently not passed on the date of institution of suit i.e. 9-1-2013 and, as such, the plaintiff was directed to deposit 1/3rd preemption money within thirty (30) days, and in case of failure, the law A will take its own course. Once again the order has been passed in vacuum and the trial Court has not performed its duties ignoring the provisions of Section 24 of the Khyber Pakhtunkhwa Pre- emption Act, 1987, wherein discretion has been given to the Court to assess the probable value of the property in case no sale price is mentioned in the sale deed or in the mutation. In the instant case, the plaintiff has claimed oral sale in lieu of Rs. 30 lacs whereas the defendants has relied upon registered deed and claimed sale price of the land in dispute as 3 crores and 30 lacs. The order for deposit 1/3rd pre-emption money passed on 15-4-2013 is not in line with law for the simple reason, that no amount has been mentioned as to how much money has to be deposited by the plaintiff, merely mentioning of 1/3rd pre-emption amount is not sufficient, as there are two amounts mentioned by the parties in their respective pleadings, so, it was bounden duty of the Court to assess the probable value and then was under obligation to require the plaintiff to deposit 1/3rd of that probable value, however, the plaintiff has deposited Rs.10 lacs as 1/3rd of the amount mentioned in the plaint and rightly did so, as the Court has not passed any order and it was the fault of the Court and not that of the plaintiff.
4. Now the core issue, in the instant case is that the plaintiff failed, to deposit the amount within thirty (30) days as per direction made on 15-4-2013, as the plaintiff deposit the amount of 1/3rd .i.e. 10 lacs on 16-5-2013 and, as such, the deposit was delayed for two (2) days, though there are legal infirmities in the proceedings from day one on the part of the Court, but the matter came on track when the trial Court passed an order on 15-4-2013, though with no specific amount, however, the order for deposit of 1/3rd amount within thirty (30) days was made and the plaintiff on his own choice opted for deposit of that amount, which he has mentioned in his plaint and in that eventuality he was supposed to deposit amount within thirty (30) days, as required by the Court but delay caused for two (2) days by the plaintiff was on part of the plaintiff and he cannot be exonerated from his fault due to certain lacunas in the orders of the Court prior to 15-4-2013.
Needless to mention that once time has been fixed by the Court, pre-emptor would be bound to comply with the time so fixed and neither he would be allowed to apply for further extension nor Court had any power to extend the time and pre-emptor seeking to exercise such right was bound to perform and fulfill the requirement thereof, meticulously and any failure on his behalf would deprive him of success in getting the pre-emption decree.
5. The plea of the learned counsel for the petitioner that plaintiff should not be suffered due to act of the Court, is misplaced for the reason that if the Court failed to order regarding deposit of 1/3rd preemption money on first date of institution of suit, it was duty of the learned counsel for the plaintiff to move an application and pray for the deposit of 1/3rd pre-emption amount, but he kept mum for more than four (4) months and when the defendant filed written statement and Court passed the order would not give right to the plaintiff to ignore law, rather was supposed to abide by the law and deposit the amount within thirty days. In the instant case, the real issue is the non- deposit of 1/3rd pre-emption amount by the plaintiff within thirty days from the date order passed by the trial Court on 15-4-2013, which was intentional on the part of pre-emptor and cannot be termed as act of Court, in the circumstances, after the cut date of order passed for deposit of 1/3rd preemption amount. The necessary element is to judge, the diligence of litigants was a degree of care taken by him and manner in which he conduct himself and thus a question that whether or not a person acted diligently and was not negligent .Would depend on the circumstance of each case. In the instant case, the plaintiff was negligent in deposit of the 1/3rd pre-emption amount and was not vigilant enough, therefore not entitled to any leniency, as the Court order has not been complied with nor any good reasons has been assigned for non-deposit of the amount within the specified period. It is pertinent to mention that Section 24 of Khyber Pakhtunkhwa Pre-emption Act, 1987 is silent about the fact that in case of failure of the Court for variety of reasons to require the plaintiff for deposit of 1/3rd pre-emption amount would be handicapped to pass any order on the subsequent date and, as such, the failure of the Court to pass an order on first date of filing of pre- emption suit by the plaintiff, the same can be passed at the subsequent stage and the preemptor was under obligation to obey that order in letter and spirit in the same manner as it has been passed on the first date regarding the deposit of 1/3rd pre-emption amount, as required under the law. For convenience sake Section 24 of Khyber Pakhtunkhwa Pre-emption Act, 1987 is reproduced as under:-- 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 and for remaining two-IIIrd furnishing bank guarantee 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.
7 (sic) A look of the above referred provision of law reveals that the Court shall require the plaintiff to deposit 1/3rd of the sale price of the property in case within such period as the Court may fix, there is no mention of the fact that the Court shall order the amount on first date of institution of suit, though the practice invoked that normally the order for deposit of 1/3rd pre-emption amount is passed on first date of institution of pre-emption suit, but no embargo has been laid down in the referred section and, as such, the Court though violated the procedure invoked has not acted that illegally, as section of law is silent to this effect and benefit cannot be taken by the plaintiff in this regard on account of any lapses on the part of the Court. Needless to mention that the provisions of any enactment requires some act to be done, it is to be done in the manner as prescribed in the statute and if the same was not done accordingly, the consequences would obviously penal in nature and, as such, suit of the plaintiff is liable to be dismissed on account of noncompliance of order passed by the Court for deposit of 1/3rd preemption amount.#TE##
8. The trial Court has passed the impugned order to non-suit the plaintiff on account of failure of non-compliance of the order passed for deposit of 1/3rd pre-emption amount and rightly dismissed the suit of the plaintiff. An appeal was filed before the District Judge against the order of trial Court passed on 5-10-2013, however the appeal returned on the same date due to lack of pecuniary jurisdiction and thereafter instant regular first appeal has been filed before this Court.
The petitioner/appellant failed to point out any infirmity or illegality in the impugned order passed by the learned Trial Judge, which is not open to any exception.
' For the aforesaid reasons, the instant appeal being devoid of F merits is hereby dismissed.