SAFDAR SALEEM SHAHID, J. This civil revision is directed against the judgments and decrees dated 01.12.2000 and 01.07.2009 passed by the learne d Civil Judge, Gujrat and learned Additional District Judge, Gujrat, respectively . The suit for pre-emption was filed while proceeding was conducted under the old Pre-emption Act, because the sale relates to the time before the enactment of the new Pre-emption Act (Punjab Pre-emption Act, 1991).
2. Brief facts of the case are that one Mst. Majeedan widow of Islam-ud-Din, who was son of Elahi Bakhsh, sold her land measuring 51-kanals 13-marlas, as detailed in the plaint, in favour of Abdullah son of Pir Bakhsh (late) (father of the present petitioner), through a registered sale deed dated 21.08.1962 against total consideration of Rs.10,000/-. Father of the petitioner was also owner of land measuring 51/2 marlas, which he had purchased from previous owner Mirza Inayat Baig, on 12.10.1960. Respondents No.1 and 2 filed a suit for possession through pre- emption on the ground that they have a superior right as they are owner in the village, whereas father of the petitioner was not owner in the village before purchase of the disputed land. Written statement was filed while taking legal as well as factual objections that property in question being an evacuee property , was not pre-emptible and that the suit was not maintainable due to misjoinder and non-joinder as the custodian of the trust property was not made party to the suit. The learned trial Court framed the following issues:-
1. Whether the plaintif fs are estopped? OPD
2. Whether the plaintif fs have got superior right of pre-emption? OPP
3. Relief.
3. Both the parties produced evidence. However , file of the case was lost in 1975 in which Mirza Inayat Baig son of Faujdar Baig, from whom father of the petitioner had purchased land measuring 51/2 marlas, had appeared as DW.1 and confirmed the said sale, but his statement could not be traced due to loss of file. The said DW.1 could not be produced in original proceedings as he had died after the statement. The learned trial Court decreed the suit of respondents No.1 and 2 vide judgment and decree dated 01.12.2000. The petitioner filed appeal, which was dismissed through judgment and decree dated 01.07.2009. Both the said judgments and decrees have been challenged through this petition.
4. Learned counsel for the petitioner submitted that both the Courts below have acted in exercise of their jurisdiction illegally and with material irregularity as they have failed to take notice of the fact that respondents No.1 and 2 did not deposit Zar-e-Panjum as ordered by the Court. The learned Courts below have not properly appreciated the revenue record, including Khasra Girdaweri which is a public document and presumption of truth has been attached thereto, produced by the petitioner . The learned trial Court has not framed proper issues keeping in view the preliminary objection s taken by the petitioner . The Courts below have not applied the correct law while passing the impugned judgments and decrees. According to the learned counsel the learned trial Court has committed an error while passing the judgment and decree as file of the case had lost and was reconstructed without obtaining order from the concerne d authority . Learned counsel, however , conceded the preferential right of respondents No.1 and 2 and did not argue on that aspect of the case.
5. The learned counsel for respondents No.1 and 2, on the other hand, resisted the arguments by submitting that suit of respondents No.1 and 2 was decre ed ex parte, possession of the property was also delivered in execution of the decree. The learned trial Court has clearly mentioned in the judgment dated 01.12.2000 that decretal amount was deposited in accordance with the decree dated 22.03.1980, which will be considered to be a payment of decretal amount within the stipulated period. According to the learned counsel for respondents preferential right of respondents No.1 and 2 was established and after the deposit of decretal amount objection regarding non-deposit of Zar-e-Panjum was baseless. Furthermore file was reconstructed in accordance with law and that the petitioner did not raise objection regarding reconstruction during the proceedings either before the trial Court or before the learned Additional District Judge, therefore, this plea cannot be raised at this stage.
6. Arguments heard. Record perused.
7. As regards objection that Zar-e-Panjum was not deposited by respondents No.1 and 2, reliance is placed on the wisdom maintained in the cases reported as Sanwal Das vs. Jaigo Mal and others (AIR 1924 Lahore 68), Shah Wali vs. Ghulam Din alias Gaman and another (PLD 1966 S.C. 983) and Muhammad Bashir and others vs. Syed Altaf Hussain Shah (deceased) and another (1988 MLD 270) that the object of an order under Section 22(1) is to guarantee vendees against frivolous proceedings on the part of possible pre-emptors. The deposit is a token of good faith and once the pre-emptor has obtained a decree the need for a deposit no longer exists so far as the trial Court is concerned.
8. Further reliance is placed on the case reported as Miraj Din and another vs. Saleh-ud-Din Ahmad Khan and 2 others (1986 MLD 461), wherein it is held that the trial Court was required to give direction to pre-emptor before settlement of issues to deposit either Zar-e-Panjum or to give security and failure to comply with the direction, however , would attract penal provision of Section 22(4) of Act I of 1913. The trial Court did issue a direction for submission of security bond which was complied with and that finding of fact cannot be reopened at revisional stage. The mere fact that security bond submitted by respondents No.1 and 2 is no longer available on record would not attract the penal provision of Section 22 of the Act.
9. Furthermore in the case of Din Muhammad and others vs. Mst. Sultan Bibi (1985 CLC 2536 ), it was held as under:- "The trial Court extended four days time for the deposit of Zar-i-Panjum without notice to the respondent/plaintiff but the petitioners, did not challenge the same through appeal/revision at that time. So muso that this objection was not raised in the memorandum of appeal and was also not argued before the learned District Judge: that being the position, I am of the view that it does not lie in the mouth of the petitioners/defendants to agitate this question before this Court at this stage."
10. The Courts below have given sound and cogent reasons in support of the conclusion arrived at by them and as such argument of the learned counsel is without substance. Even the time can be extended to deposit Zar-e- Panjum but when the decretal amount was fully deposited and the possession was delivered to respondents No.1 and 2 then the question of non-deposit of Zar-e-Panjum at the appropriate time does not arise because the presumption of the pre-emptors is clear from their depositing the decretal amount, as ordered by the Court.
11. Guidelines on the point of deposit of Zar-e-Panjum are given in Para-3 of the judgment in the case reported as Muhammad Bashir and others (supra), which is reproduced as under:- "3. The record shows that the trial Court failed to pass an appropriate order under section 22(1) of the Punjab Pre- emption Act in directing the respondents-plaintiffs either to deposit Zar-i-Panjam or to furnish security .
Notwithstanding this omission the order dated 17-5-1976 reveals that security was in fact received from them.
Apparently , receiving security at a later date without having asked for it previously , was quite unusual and indeed not contemplated by the provisions of Section 22 ibid. A specific order had to be passed for doing so before framing the issues. The record does not support if this formality was observed. Its receipt subsequently was for obvious reasons of no consequence and could not adversely affect the main suit itself. It appears to be a case of omission on the part of the Court of which the respondents may not take any undue advantage. In Balmolkand and others v. Mst. Lachhman Bai and others (A.I.R. 1921 Lahore 392, 67 I C 796) the Court had omitted to fix time before which the pre-emptor could make deposit of the Zar-i-Panjam. It was held that the omission could not be utilized to penalize the pre-emptor . For analogical reasons, in this case too, the omission to pass a relevant order would not be allowed to be used as a lever to penalize the respondents/pre-emptors. They could be visited with a penalty only if they had failed to obey a specific order passed in that behalf. Learned counsel could not cite any authority to support his contention that such an omission on the part of the trial Judge could have the effect of vitiating the whole proceedings. The object of the section is to guarantee the vendees against frivolous proceedings on the part of the possible pre-emptors. The deposit is a token of good faith, and once the pre-emptor has obtained a decree, the need for a deposit or for that matter furnishing security no longer exists so far as the trial Court is concerned.
Sanwal Das v. Jaigo Mal and others (A.I.R. 1924 Lahore 68) and Shah Wali v. Ghulam Din alias Gaman and another (PLD 1966 SC 983) provide so. Further the deposit or the security bond are taken to satisfy the Court itself that the plaintiffs will ultimately pay the costs, if any, and this satisfaction is entirely subjective with the Court so that it may be varied without using it as a vehicle of oppression against the plaintiffs or jeopardizing substantial rights of the defendants. Mst. Resham Jan v. Khan Nawab Khan and others (PLD 1970 Azad J&K 66) refers.
Since in the present case the Court accepted the security bond as a sufficient guarantee for payment of costs etc., legally speaking there may be no objection to the subjective satisfaction of the Court. Secondly the final decree has already been passed by the trial Court and is not being assailed on any substantial ground whatsoever . Even the entire pre-emptions amount has already been deposited, and the same supported the plea of the respondents/pre- emptors that they were exercising their right quite genuinely . One of the reasons directing deposit or furnishing security bond was to see that no frivolou s suit is brought. But in case where pre-emptor pays up the entire pre- emption amount, such an impression is obviously misplaced. The purport of the provision is adequately met. We have no hesitation to repel his objection."
12. Further reliance is placed upon the case reported as Namdar Khan vs. Muhammad Akram Khan and 14 others (1993 SCMR 434), wherein it is held that acts or omissions of a Court do not injure a litigant is a truism by now. Therefore, the omission having been supplied under the impugned order and deposit made, no interference is called for .
13. The crux of the above discussion is that since the decretal amount was deposited by respondents No.1 and 2 and the possession was also delivered to them in view of the deposit of the decretal amount this question will not arise that Zar-e-Panjum was not deposited by respondents No.1 and 2. This objection of petitioner was correctly settled by the Courts below .
14. So far as the objection of petitioner regarding reconstruction of file is concerned, Clause 4 of Chapter 16 Part- D, of the High Court Rules & Orders, Volume-IV , says that if any document or part of record is subsequently found to be missing, the Presiding Officer of the Court shall immediately take action for its recovery or reconstruction. He shall also fix responsibility on the custodian if the document was on the index, or on the official whom the custodian relieved, if it was not on the index.
15. Reliance is placed on the case reported as Nazir Ahmad vs. Muhammad Rafiq (1993 CLC 257), and Mst.
Gul Begum and 17 others vs. Mst. Rehmat Jan and 8 others (1995 CLC 1643 ), wherein the principle has been discussed that reconstruction of lost record is within the inherent power or authority of the Court concerned and having failed to raise such an objection before the trial or appellate Court cannot be allowed to be raised for the first time at the revisional stage.
16. Further reliance is placed on the case reported as Mst. Khudija Begum vs. The State and others (PLD 1971 Baghdad-ul-Jadid 19 ), the relevant para whereof is reproduced as under:- "The principle thus is found to have been established in our system of law and in almost every other system of jurisprudence, that the reconstruction of lost record is within the inherent power of the authority of Court, concerned with that record, in original, appellate or supervisory capacity ."
17. The petitioner joined the proceedings and did not object during the proceedings regarding reconstruction of the lost file. The petitioner also did not raise such objection before the appellate Court, which satisfied his grievance that no important record of the suit was missing. Therefore, the reconstruction of file was correctly organized by the learned trial Court and on this score respondents No.1 and 2 cannot be deprived from their right which they successfully proved regarding their preferential right of pre-emption, the issue of preferential right was rightly decided in favour of respondents No.,1 and 2. They were owner in the village befor e the sale of the land; during the proceeding of the pre-emption suit and till the decision of the suit. So, they had the preferential right of pre-emption qua the rights of the petitioner , who could not prove his ownership at the relevant required time. Hence the suit was decreed by the learned trial Court vide judgment and decree dated 01.12.2000, which was rightly upheld by the first appellate Court vide judgment and decree dated 01.07.2009.
18. Upshot of the above discussion is that the petitioner has failed to point any illegality in the judgments of both the Courts below , calling for interference in the revisional jurisdiction of this Court. The petition, therefore, fails and is accordingly dismissed with no order as to costs.