C.M.No.1418 of 2001.
This application in terms of Section 151 of the Code of Civil Procedure (V of 1908) (hereinafter referred as "CPC"), seeks permission to redeposit the decretal amount in the court.
2. Facts in brevity necessary for adjudication of the instant application are that the applicants instituted a suit for pre-emption in order to pre-empt the land measuring 120 kanals, situated in village Weeslan, Tehsil and District Bahawalpur , through registered sale deed dated 29.04.1967, sold by Mumtaz Ahmad and Fiaz Ahmad for a consideration of Rs.18,000/-. A similar suit was also instituted by Allah Bakhsh and Abdul Rashid Shah. Both suits were consolidated, which were though resisted by the respondents, but decreed by the learned Senior Civil Judge, Bahawalpur vide judgment dated 17.07.1969.
3. The respondents feeling aggrieved preferred a regular first appeal befor e the learned District Judge, Bahawalpur , which was accepted vide judgment and decree dated 15.04.1971 and suits were dismissed.
4. The applicants assailed the said judgment and decree through R.S.A.No.103 of 1971. During the pendency of the appeal, the applicants withdrew the amount deposited in terms of the judgment and decree passed by the learned Senior Civil Judge. The appeal was finally accepted through judgment dated 04.07.2001, restoring the judgment and decree passed by the learned trial court.
5. The applicants then moved the instant application seeking permission to redeposit the decretal amount in terms of the judgment dated 17.07.1969.
6. Learned counsel for the applicants submitted that initially in terms of the judgment and decree passed by the learned trial court, they had deposited the pre-emption money and as such their suit shall be deemed to be decreed accordingly . It is contended that on the dismissal of the suit by the first appellate court, the pre-emption money remained deposited, but during the pendency of R.S.A before this Court, the application was moved by the applicants and by way of order dated 28.11.1972, they were allowed to withdraw the amount with the undertaking that they shall deposit it within such time as is fixed by the Honourable Judge dealing with the appeal. Learned counsel contended that while deciding the appeal, no time period was fixed for redeposit of the pre-emption money .
It is submitted that the applicants by their own moved the instant application, which is well within time.
7. Conversely , learned counsel for the respondents seriously resisted the instant application. It is contended that once the amount is withdrawn, the pre-emptor has to suffer in the shape of dismissal of his suit as well appeal in terms of Section 22(5)(a) of the Punjab Pre-emption Act, 1913. Learned counse l empathetically argued that the order allowing withdrawal does not equip a right to the applicants to claim the fruits of judgment and decree in their favour , which was conditional.
8. After having heard learned counsel for the parties at considerable length, I have perused the record.
9. Property , in question, was owned by Mumtaz Ahmad and Fiaz Ahmad, who sold the same to Malang Khan i.e. respondent, for a consideration of Rs.18,000/- through registered sale deed dated 29.04.1967. Sale was pre- empted through two suits for pre-emption i.e. Civil Suit No.241 and Civil Suit No.275. Former suit was instituted by Abdul Rashid Shah and Allah Bakhsh, whereas, latter was filed by the predecessor-in-interest of the applicants namely Mst. Sughran Begum. Both suits were consolidated and after recording of evidence, suits were decreed vide judgment dated 17.07.1969 in the following manner:- "The decree prayed for is granted to Mst. Sughran Begum in the first instance on payment of Rs.18000- 00- She should deposit this amount in the court on or before 20.12.1969. If Mst. Sughran failed to deposit the due amount by the due date her suit shall be deemed to have been dismissed. In that event the suit shall be deemed to have been decreed in favour of Allah Bakhsh and he should deposit the amount of Rs.18 000.00 in the court on or before 31.1.1970. If he too did not deposit the amount by due date his suit shall also be deemed to have been dismissed.
The decrees are granted with costs."
10. It is not in dispute that in pursuance to the decree passed by the learned Senior Civil Judge, the decree-holder deposited the pre-emption money within prescribed period. The respondents however feeling aggrieved preferred an appeal before the learned District Judge, which was accepted vide judgment and decree dated 15.04.1971 and suits were dismissed. This followed R.S.A.No.103 of 1971, which was acce pted through judgment dated 04.07.2001, restoring the judgment of the learned trial court.
11. There is a consensus that judgment of this Court was assailed by the responde nts before the Hon'ble Supreme Court of Pakistan in C.P .No.2535/2001, but of no avail. Even review petition met the same fate.
12. It is not out of place to mention here that during the pendency of appeal before this Court, an application was moved (C.M.No.415 of 1972/BWP) seeking withdrawal of the deposited amount , which was allowed vide order dated 28.1 1.1972. For ready reference and convenience, same is reproduced below:- "Submits at the bar that the possession over the property is not that of the petitio ner though it is nowhere stated either in the memo of appeal or in the application. Subject to this being correct the petitioner is allowed to withdraw the amount with the undertaking that he shall redeposit it within such time as is fixed by the Judge dealing with the appeal. This order will be subject to notice and to all just exceptions".
13. The moot point before this Court is as to what would be the effect of withdrawal of pre-emption money during the pendency of appeal. Section 22 of the Punjab Pre-emption Act, 1913 empowers the Court to call upon the pre- emptor , at the initial stage of the proceedings, to deposit 1/5th of probable value of the property in respect of which claim for pre-emption has been brought or to furnish security in lieu thereof. It may be noticed that the above direction can be given by the Court at or at any time before the settlement of issues. The appellate Court too under sub-section (2) of Section 22 can exercise the power conferred on the Court of first instance under sub-section (1).
However , unlike the Court of first instance, the appellate Court can direct the pre-emptor to deposit 1/5th of the probable value of the property in the suit or to furnish security in lieu thereof at any time. In the event of non- compliance of the order of the appellate Court, the appeal filed by the pre-emptor is liable to be dismissed under sub-section (4). By way of sub-section (5), in case the pre-emptor withdraws the amount deposited in compliance of the order of the Court of first instance or the appellate Court, his suit or appeal, as the case may be, is liable to be dismissed. Provisions so embodied are undoubtedly mandatory and the consequences, which follow the withdrawal of the amount of 1/5thof the probable value of the property in suit deposited by the pre-emptor cannot be avoided by allowing him to redeposit the amount withdrawn by him.
14. There is no cavil that during the pendency of the appeal, by way of order dated 28.11.1972, the applicants were allowed to withdraw the amount with the undertaking that they shall redeposit within such time as is fixed by the Judge dealing with the appeal, but order so made was subject to notice and all just exceptions.
15. It is trite law that no court either court of first instance or appellate court is vested with the jurisdiction to pass an order for redeposit of "zar-e-panjum" or pre-emption money after withdrawal. Since the decree in the suit for pre- emption was conditional to deposit of the pre-emption money within prescribed period, therefore, the same can only remain in field, if the amount remain ed intact as per dictates of the decree. Soon after the withdrawal of the amount either with or without order of the court, decree would no more remain in field.
16. In case of MUHAMMAD LATIF and others vs. ABDUL KARIM and others (1986 MLD 584), this Court while dealing with a similar proposition held as under:- "13. It may be stated with utmost respect that the interpretation of the word 'so' in subsection (5) (a) of section 22 made in Sanwal Das v. Jaigo Mal AIR 1924 Lah. 68 was not in consonance with the intention of the Legislature.
The view taken by the Court that the appellate Court can dismiss the appeal only where the pre-emptor has withdrawn the Zar-e-Panjum deposited by him in compliance with the order of the appellate Court cannot be accepted without doing injustice to the clear and plain language of subsection (5) (a). Such intention being not only contrary to the plain words used in subsection (5) (a) would also defeat the legislative intent because the pre- emptor appellant' s appeal would not be affected by the withdrawal of the amount deposited by him in compliance with the order of the Court of first instance under subsection (1) and the provision s of subsection (5) (a) would be rendered nugatory in such an event. The proper interpretation of the provisions of subsection (5) (a) which would also be in consonance with the legislative intent, would be that the pre-emptor must lose his suit or appeal, the moment he withdraws the amount depo sited by him, whether in compliance with the order of the Court of first instance under subsection (1) or in compliance with the appellate Court' s order under subsection (2). It is immaterial whether the amount deposited by him was withdrawn during the pendency of the suit or after its dismissal or during the pendency of the appeal whether preferred by him or the vendee. The objection raised by the appellant in Sanwal Das v. Jaigo Mal that the respondent pre-emptor 's suit was liable to be dismissed as he had withdrawn the pre-emption money , which also included the Zar-e-Panjum was legally tenable in view of the provisions of subsection (5) (a) of section 22 because after the withdrawal of the pre-emption money by the pre- emptor , nothing was left to meet the requirement of subsection (3) of section 22. The appellate Court, while seized of the vendee' s appeal, was legally competent to pass order of dismissal of the pre-emptor 's suit under subsection (5)(a)."
17. Even otherwise, it is apparent from the record that the appeal was heard on 16.04.2001 and judgment was announced on 04.07.2001, but the applica nts remained waiting till 07.09.2001 to move an application for redeposit, which cannot absolve them from their duty ordained by law , being the pre-emptor .
18. The nutshell of above discussion is that the instant application is devoid of any merits. Resultantly , same is dismissed.