1. The appellants through instant regular first appeal have impugned the judgment & decree dated 27.01.2009 of learned Civil judge/Illaqa Qazi-III Swat, whereby suit of the appellants has been dismissed due to non-deposit of 1/3rd sale consideration within fixed period.
2. 2.Brief and relevant facts of the case are that on 25.09.2007, the appellants/plaintiffs (hereinafter called appellants) had filed a civil suit for possession by exercising their right of pre-emption in respect of a house fully described in the head note of the plaint against Respondent No. 12 Muhammad Yousaf (now deed) son of Ghulam Haider resident of Koza Bandai, Tehsil Kabal, District Swat, predecessor-in-interest of the Respondents No 12/1 to 12/9(hereinafter called respondents) as well as respondents-vendors in the Court of Senior Civil Judge/A'ala Illaqa Qazi, Swat, which was entrusted to the Court of Civil Judge/Illaqa Qazi-III Swat, for disposal.
3. 3.Learned trial Court vide its order dated 26.09.2007 directed that the pre-emptors/plaintiffs present appellants to deposit 1/3rd of sale consideration till 24.11.2007, however, they failed to deposit said amount within period fixed by the learned trial Court.
4. 4.The respondents on 30.10.2008 submitted an application for dismissal of the suit on the ground that pre-emptors/plaintiffs had not deposited 1/3rd of sale consideration within fixed period, therefore, suit is liable to be dismissed under the law, after replication and hearing same application was allowed by the learned trial Court and pre-emption suit was dismissed vide impugned order dated 27.01.2009.
5. 5.The appellants impugned the aforesaid order by filing appeal on 23.02.2009 before the Court of learned District Judge/Zila Qazi, Swat, which was entrusted to learned Additional District Judge/Izafi Zila Qazi-I, Swat, for disposal, however, the same was returned to the appellants vide order dated 03.02.2010 for want of pecuniary jurisdiction as value of the suit for the purpose of Court fee and jurisdiction was fixed as Rs. 15,00,000/- in the plaint, hence, present appeal was refilled on 11.02.2010 before this Court along with application for condo nation of delay.
6. 6.Learned counsel for respondents raised preliminary objection that instant appeal has been filed beyond the prescribed period of limitation before this Court and no "sufficient cause" for condoning delay has been shown, so, prayed for its dismissal without further proceedings.
7. 7.The learned counsel for appellants submitted that he may be allowed to respond preliminary objection as well as to advance arguments in one goes, so he was allowed.
8. 8.Learned counsel for the appellants contended that the appellants had challenged the impugned order by filing appeal before learned District Judge well within time due to mistake but it should have been returned before preliminary hearing by the office or the Court just after preliminary hearing but it was returned to the appellants for lacking pecuniary jurisdiction of learned appellate Court of District Judge on 03.02.2010 and was directed to approach the proper forum.
9. 9.After return of said appeal, appellants had filed regular first appeal just after eight days of return on 11.02.2010 alongwith application for condo nation of delay as no fault or mala fide is there on their part; further contended that it was wrongly filed before the wrong forum but within time in good faith and with due care, however, was not returned by the office just at the time of filing or before or on the date of preliminary hearing so the delay caused being unintentional is condonable and appellants may kindly not adversely be affected due to mistaken advice of their counsel or act of ministerial staff or Court by not returning it forthwith, so, should not be prejudiced by the act of Court as their valuable rights are involved and law prefers decisions of cases on merits and not on technicalities. In this regard learned counsel for the appellants referred Sections 5 & 14 of Limitation Act, 1908 and placed reliance on the verdict of august Supreme Court of Pakistan, on Sherin case (1995 SCMR 584) and Dilawar Shah case (PLD 2011 Peshawar 256).
10. 10.Learned counsel for appellants further contended that due to worst law & order situation he could not deposit directed amount 1/3rd of sale consideration within fixed period, so, impugned order is in violation of law and also against the facts; therefore, non-deposit of pre-emption money within fixed period was unintentional, so in such like exceptional circumstances the learned trial Court might had extended time to enable the appellants to deposit the requisite 1/3rd of sale consideration amount and had not passed such harsh order of dismissal of suit therefore, the impugned order is liable to be set aside, appellants be given time and be allowed to deposit 1/3rd of sale consideration with submission that case be remanded back to the learned trial Court for trial.
11. 11.Learned counsel for the respondent while responding to arguments of learned counsel for the appellants submitted that deposit of 1/3rd of sale consideration of suit property within stipulated time till 24.11.2007 as directed by the learned trial Court was mandatory under Section 24 of Khyber Pakhtunkhwa Pre-emption Act, 1987, thus the order of learned trial Court is, correct, based on law and is unexceptionable to interfere with in the said impugned order by this Court. Learned counsel fully defended the impugned Order of dismissal of suit and further stated that the same is the outcome of proper appreciation of law on the subject which may kindly be kept intact by dismissing the instant appeal being time barred as well as due to non-compliance of Section 24 of Khyber Pakhtunkhwa Preemption Act, 1987. Leaned counsel for the respondents referred case law relating to non-deposit of 1/3rd sale consideration within prescribed period and its legal consequences "Rehman-ud-Din vs. Sahibzada Jehanzer" (2004 SCMR 418), "Muhammad Ayub & others vs. Mst. Nusrat Begum (2003 YLR 793).
12. 12.Conversely learned counsel for respondent further argued that after non-deposit of 1/3rd sale consideration, suit was dismissed on 27.10.2009 and the appellants had filed appeal before learned District Judge despite knowledge that notional suit value mentioned in plaint was Rs. 15,00,000/- (rupees fifteen lac) and instead of filing regular first appeal before this Court had filed appeal before learned District Judge lacking pecuniary jurisdiction, whereas, ignorance of law is not an excuse to escape from fulfillment of a mandatory requirement of law. It was further contended that the time consumed in prosecuting an appeal, filed before the wrong forum cannot be condoned in favour of the appellants; as Section 14 of Limitation Act is applicable to suits only and not to appeals and "sufficient cause" for delay in filing instant appeal before this Court has not been shown, so, the time consumed by prosecuting appeal before the District Judge cannot be condoned under the law thus the instant appeal being hopelessly time barred is liable to be dismissed. To this effect learned counsel for the respondent relied on following case law: "Dr. Syed Sibtain Raza Naqui vs. hydrocarbon Development and others" (2012 $CMR 377). "Abdul Ghani vs. Ghulam Sarwar" (PLD 1977 SC 102). "Ameerullah Khan vs. Mst. Nisar Begum and others"
13. (PLD 2016 Peshawar 49). "Aziz Ahmad vs. Ejaz Ahmad and 3 others" (2014 MLD 1095). "Dr.Riaz Khan vs. Abdur Rasheed and 9 others" (PLD 2014 Peshawar 45). "Rustam Khan vs. Khalid Rahman and others" (2016 CLC 400).
14. 13.I have heard arguments of learned counsel for the parties and gone through the available record as well law on the subject.
15. 14.Firstly the question for determination involved herein to be resolved by this Court amongst the parties is as to whether application for condonation of delay is worth acceptance or the instant appeal is time barred. Secondly, the impugned order regarding dismissal of suit is correct under the law or otherwise warrants interference by this Court and trial Court could had extended time to deposit 1/3rd of sale consideration to pre-emptors.
16. 15.Perusal of record reveal that pre-emption suit was instituted on 25.09.2007, order for deposit of 1/3rd amount of sale consideration was passed on 26.09/2007 with direction to deposit it upto 24.11.2007 but pre-emptors failed to deposit it within fixed period directed by the trial Court and pre-emption suit was dismissed on 27.01.2009 that also upon application filed by respondents.
17. 16.The appellants preferred appeal against order of dismissal of pre-emption Suit 27/01/2009 on .23.02.2009 before the learned District Judge/Zila Qazi, Swat, which was returned to them on 03.02.2010 due to lack of pecuniary jurisdiction and after return, it was filed before this Court on 11.02.2010. Learned counsel for appellants tried his best to bring his case under the cover of Section 14 of Limitation Act; 1908, but failed to convince this Court about applicability of the same provision of ibid Act to the instant appeal while it is well settled by now that the benefit of Section 14 of ibid Act could not be extended and applicable to appeals as the legislature specifically excluded "appeals" and is applicable to "suit": 17.Perusal of Section 14 of the ibid Act, manifests that time spent in pursuing the suit bonafidly can be condoned in the corresponding set of circumstances. However, in the instant case appellants filed "appeal" before the wrong forum and the office was under bounden duty to had it returned there and then before posting it for preliminary hearing. Moreso, the learned appellate Court could had returned the regular civil appeal on the date of its presentation i.e. 23.02.2009 forthwith but was posted for preliminary hearing and was not returned, however, if it was returned so then appellants had much remaining time to had it filed before this Court well in time but the said appeal had been returned much after the laps of more than one year in violation of High Court Rules & Orders. This legal issue is comprehensively discussed in the judgment of this Court in case titled "Dilawar Shah vs. Nasrullah Khan" reported in PLD 2011 Peshawar 256, which relevant portion is reproduced as under: "10. It is the initial and foremost duty of the office to see and check whether the appeal being filed is within the period prescribed by law and then it becomes the duty of the Court to see and determine as to whether it has got the jurisdiction to entertain and hear the appeal as office is not supposed to examine the jurisdictional side of the appeal and it is the sole responsibility of the Presiding Officer of the Court to determine the question of its jurisdiction, as was held by their lordships in Sherin's case (supra).
18. (1)High Court (Lahore) Rules and Orders--Vol.I, Chap.1-B, R.5 and Chap. 14-13, R.5--Appeal-- Jurisdiction of Court--Determination---Duty of Court--Held, so far as the jurisdictional side was concerned, it was none of the functions of the Court officials to examine the memorandum of appeal from that angle but it was the sole responsibility of the Presiding Officer of the Court, to pass an order admitting or rejecting the appeal.
19. If an appeal once filed in a Court, the office reports to have competently been filed and then the Court also issues notices to the respondents after hearing the same then in that situation whether the party or his counsel filing appeal could be held responsible and the party can be refused the benefit of condo nation delay. Simple 'No' would be the answer to such questions as in such like situation the fault would be of the office and then of the Court. The counsel or party in the circumstances could not be held responsible because, had it been properly checked and seen then the same would have been returned on the very first day of its presentation or at its earliest and then the appellant would have sufficient time to approach the proper forum as the period of time prescribed under the law is ninety days for filing regular first appeal in the High Court."
20. 18.In view of above cited judgment; wherein, the rule enunciated in Sherin's case by Hon'ble Supreme Court was followed, so, the period spent in prosecuting appeal before wrong forum and thereafter till re-filling of appeal before competent forum is condoned by considering it "sufficient explanation" for condo nation of delay, resultantly, the application for condo nation of delay is allowed and instant appeal is held to be filed within time.
21. 19.Now adverting to second question for determination regarding dismissal of suit in view of non- compliance of direction of trial Court under Section 24 of ibid pre-emption Act, it transpired from record that the suit for pre-emption was instituted on 25.09.2007 by the plaintiffs/appellants and on the following day i.e. 26.09.2007 they were directed by the learned trial Court to deposit 1/3' of sale consideration upto 24.11.2007 but they failed to comply with the order of learned trial Court and did not deposit the above said amount within fixed period before 24.11.2007.
22. 20.On 30.10.2008 after lapse of considerable time of 11 months the contesting respondent moved an application for dismissal of the suit for non-compliance of Court order passed in view of Section 24 of Khyber Pakhtunkhwa pre-emption Act, 1987. According to Section 24 of ibid Act as amended in 1992 it is clear that learned trial judge has no power to extend time for deposit of 1/3rd directed amount and it is obligatory for the Courts to "shall" dismiss the suit on failure . of pre- emptor(s) to deposit 1/3rd of the sale price within the period fixed by the learned trial Court.
23. Relevant provision of Section 24 of ibid Act, is reproduced for convenience sake: "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 within such period as the Court may fix; Provided 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;
(2) where the plaintiff fails to deposit one-third .of the sale price or the probable value of the property within the period fixed by the Court, his suit shall be dismissed".(underline is mine to emphasis).
24. 21.the appellants had attended the Court continuously except a few occasions. Order Sheet No. 6 dated 03.04.2008, order- Sheet No. 8 dated 24.07.2008, order sheet No. 9 dated 30.10.2008 shown their presence before the Court and on the same date i.e. 30.10.2008 respondent/vendee submitted application for dismissal of suit for non-deposit of 1/3rd of sale consideration, so the above referred Court proceedings proved that the appellants failed to deposit the requisite 1/3rd pre-emption amount/sale consideration within period fixed by the learned trial Court i.e. before 24.11.2007, so, the argument that due to worst law & order situation they could not had deposited, is not tenable. In such like situation the trial Court was fully justified in dismissing the suit of appellants as per provision of Section 24 of Khyber Pakhtunkhwa Pre-emption Act, 1987 for deposit of 1/3rd of sale consideration is mandatory couched with penal clause of dismissal of pre-emption suit and to this effect, wisdom is derived from the judgment of Hon'ble Supreme Court of Pakistan in case titled "Rehman-ud-Din and another us. Sahibzada Jehanzer" (2004 SCMR 418), wherein it is held that: --Pre-emption money (Zar-e-Some), non-deposit of--Effect-Extension of time by trial Court for deposit of pre-emption money--Scope--Requirement of the law is that if the preemptor satisfies the condition with regard to deposit of 1/3rd of pre-emption money, the suit proceeds and in case of committing any default in deposit of the pre-emption money, the suit is dismissed--If pre- emptor is not vigilant in exercising right of pre-emption, no discretion can be exercised in his favour and he must face consequences of dismissal of suit as the Court in such cases is not supposed to condone the default while exercising power under Section 148, C.P.C. by taking away the valuable right of opposite-party--Pre-emptor having failed to deposit 1/3rd pre-emption money not due to act of Court but as a result of his gross negligence, the suit was rightly dismissed by trial Court."
22. The, learned counsel for the appellants badly failed to point out any illegality, irregularity, misreading or non-reading of record or any misapplication of law in the impugned order of learned (trial Court. As such, the impugned order of dismissal of suit is well founded and the outcome of proper appreciation of law on the subject hence is maintained.
25. 23.In view of above discussed position, the appeal in hand stands dismissed being meritless. No order as to costs.