JUDGMENT, MUHAMMAD ILYAS, 1.-Certain land was purchased by the respondent, Muhammad Ashraf, by means of a registered sale-deed in which the sale price was mentioned as Rs. 1,60,000. The sale was pre-empted by the appellant, Muhammad Ismail. The respondent filed a written statement saying that he had no objection to the suit being decreed on the payment of the above amount.
Mr. Pervez Ahmed, Additional Administrative Civil Judge, Faisalabad, thought that in the plaint of his suit the appellant had admitted actual payment of the aforementioned sale price and, therefore, be, without framing any issue and recording parties' evidence, passed a decree in favour of the appellant on the payment of Rs. 1,60,000. Feeling aggrieved by the judgment and decree of the learned trial Court, the appellant has come up in appeal to this Court.
2. Relevant portion of the judgment passed by the trial Court reads as follows :- "The plaintiff in para. No. 1 of the plaint has stated that the suit property was sold by the defendant No. 1 in favour of the defendant No. 2 Muhammad Ashraf for Rs. 1,60,000 through registered sale- deed dated 1-11-1979. The plaintiff afterward in para. No. 5 of the plaint has stated that the market value of the suit land has been fixed in excess to defeat the pre-emption right of the plaintiff. The plaintiff has admitted in para. No. 1 of the plaint that the suit property has been sold for Rs. 1,60,000, therefore, the plaintiff cannot raise in consistent pleas. As the defendant has admitted the superior right of pre-emption of the plaintiff, the suit of the plaintiff for possession through pre-emption is decreed in favour of the plaintiff on payment of Rs. 1,60,000 (Rupees one lakh sixty thousand only) minus the sum already deposited to be deposited on or before 25-3-1980, otherwise the suit will stand dismissed."
3. Assailing the reasoning of the learned Civil Judge, it was contended by learned counsel for the appellant that in paragraph 1 of his plaint the appellant (plaintiff) had simply disclosed that the respondent had purchased the land in question by means of a sale-deed in which the sale price had been mentioned as Rs. 1,60,000 and that the contents of that paragraph did not amount to an admission by the appellant that the said amount had, in fact, been paid. On the other hand, according to him, in paragraph 5 of the plaint it was contended by the appellant that the sale price figuring in the sale-deed was fictitious. He also invited our attention to the prayer made in the plaint in which the appellant had sought a decree for possession of the disputed land on payment of such price as may be fixed by the Court. The plea raised by learned counsel for the appellant, therefore, was that the learned Civil Judge had misconstrued the plaint while disposing of the suit and, therefore, his decision was not sustainable.
4. On the other hand, it was submitted by learned counsel for the respondent that there was no clear averment by the appellant that the ostensible sale price was fictitious and, therefore, the trial Court was justified in assuming that he had no objection to the payment of that sale price. It was also pleaded by him that the decree passed in the instant case was a consent decree and was, therefore, not open to challenge. Another point canvassed by the learned counsel was that the 'appellant had not deposited pre-emption money before the date fixed by the learned trial Court and, therefore, his suit stands dismissed. The argument proceeds that since the suit stands dismissed no relief can be allowed to the appellant in con--sequence of the present appeal. In this connection, reliance was placed by him on Shah Wall v. Ghulam Din alias Gaman arid another (1) and Naguba Appa v. Namdav (2).
5. In reply, it was vehemently argued by learned counsel for the appellant that the decree under appeal was not a consent decree. He was also of the view that the failure of the appellant to deposit pre-emption money in terms of the decree in question was of no consequence because the decree itself was liable to be set aside. He cited Samanda v. Muhammad Sharif and others (3) and Ahmad Bakhsh and another v. Khurshid Akbar Khan and 2 others (4) to contend that the appellant cannot be denied relief in the present appeal due to the non-deposit of pre-emption money by him.
6. With a view to examining the question whether in his plaint the appellant had admitted payment of Rs. 1,60,000 as sale price it will be appropriate to reproduce paragraphs 1 and 5 of the plaint together with the prayer made therein, which read as follows :- PLD 1966SC983 AIR 1954 SC50 PLD 1966LAH414 PLD1978 LAH838
7. It will be observed that in paragraph 1, it was not admitted by the appellant that the sale price was actually paid or fixed in good faith. It was simply stated that the sale had taken place for Rs.
1,60,000. In other words, paragraph 1 contains a narration of the factum of sale and not an admission that the sale was, in fact, made for Rs. 1,60,000. On the contrary, in paragraph 5, which is not happily worded, he had pointed out that the sale price, which was far in excess of the market value of the disputed land, was mentioned in the sale-deed because the respondent was apprehending a claim for pre-emption and, therefore, it was his effort to dissuade the appellant from filing suit for pre-emption or make him pay an exorbitant amount to which the respondent was not entitled. All this leaves no room for doubt that according to the respondent the sale price was fictitiously given in the sale---deed with a view to scaring away the prospective pre-emptors.
In the prayer also, the appellant did not offer to have the land in question on the payment of Rs.
1,60,000. Instead, it was prayed that the land be awarded to him on payment of such amount as may be determined by the Court. 'Faking the plaint as a whole, we find that it does not contain an admission to the effect that Rs. 1,60,000 had been paid as sale price for the land in question and it was wrongly assumed by the learned Additional Administrative Civil Judge that in the plaint there was such an admission. We are, therefore, unable to uphold the judgment and decree passed by him.
8. As regards the contention of learned counsel for the respondent that the decree under review was a consent decree and, therefore, not appealable, we are unable to agree with him because there is nothing in the judgment of the learned Civil Judge nor there is anything else on the record' showing that the appellant had consented to the passing of the impugned decree. The competency of the appeal is, therefore, unexceptionable.
9. Now we proceed to examine the plea of learned counsel for the respondent that since the appellant had not deposited pre-emption money in terms of the decree under challenge, no relief can be allowed to him in the present appeal.
10. In the cases of Shah Wali and Naguba Appa, cited by learned counsel for the respondent, it was not held that if the suit brought by a pre-emptor is decreed on the payment of certain amount, as pre-emption money, but he is not satisfied with the determination of such amount, his appeal would not be competent unless the amount required to be deposited by him is actually deposited within the time allowed by the trial Court. On the other hand, it is clearly decernable from the judgments delivered in the said two cases that on the filing of such an appeal by the pre-emptor, the date fixed by the trial Court for deposit of pre-emption money can be varied by the Appellate Court. This, the appellate Court can do even i1 the appeal taken to it is dismissed. Similar opinion was expressed in the cases of Samanda and Ahmad Bakhsh and another relied upon by learned counsel for the appellant. We, therefore, find no force in the argument that the present appeal would fail due to the appellant's failure to deposit the amount in question within the period fixed in the decree under appeal.
11. We have already reached the conclusion that the judgment and decree of the learned trial Court are liable to be set aside because they are based on incorrect appraisal of the plaint. If the whole decree is going to be set at naught for the aforesaid reason, how can the direction in regard to the deposit of pre-emption money be given effect to ? That direction would disappear with the annulment of the decree and, therefore, it cannot be pressed into service by the respondent for depriving the appellant of the fruits of his appeal which merits success due to the error in which the learned trial Court bad fallen while deciding the suit with undue haste and without due care.
12. In view of the above discussion, we accept this appeal, set aside the judgment and decree of the learned lower Court and remand the case for fresh decision. It shall be placed before the District Judge, Faisalabad, on 19th January, 1982, when it will be entrusted by him to some Court of competent jurisdiction. The parties, shall appear before the learned District Judge on the said date.
There shall be no order as to costs.