' Respondent Muhammad Hanif instituted a suit on 2-6-1977 at Ahmadpur East to pre-empt a sale through a registered deed dated 3-6-1976 made by Khushi Muhammad of 47 kanals 12 marlas situated in mauza Januwala, Tehsil Ahmadpur East in favour of the petitioners in consideration of Rs, 33,000. In the suit Muhammad Hanif respondent alleged his superior right based on two qualifications, (i) that he was the owner in the estate, and (ii) that he was a co-sharer qua the suit land. The suit was resisted by the petitioners/vendees on various grounds among which the ground of waiver was taken up distinctly. The learned trial Court framed eight issues in all according to the pleadings of the parties as to their variance. As to the superior right the issue was decided in favour of respondent No. 1 and issue of waiver was decided against the petitioners and the issue as to price was decided in favour of the petitioners while issues as to limitation, improvement in the suit land and correct valuation of the suit for the purposes of courtfee and jurisdiction, were not pressed by the petitioners and thus decided against them. The trial Court ultimately decreed the suit in favour of respondent No. 1 vide its judgment and decree dated 22nd December, 1979. Being aggrieved therefrom the petitioners filed an appeal which came to be decided by the learned District Judge, Bahawalpur who after affirming the findings of the trial Court dismissed the appeal vide its judgment dated 9th September, 1981.
2. In this revision having been brought from the judgment and decree of the learned District Judge, Bahawalpur, the learned counsel for the petitioners has addressed on two points, firstly that during the process of the suit, the suit came to be hit by the limitation and secondly, by referring to bond Exh. D. I, the learned counsel has maintained that it was a waiver in writing. The same has been rejected by both the Courts below without caring for the law applicable thereto, as such, he has maintained that this has impaired the exercise of jurisdiction by both the courts below as to the legality.
3. The learned counsel for respondent No. 1, has in reply, submitted that the suit cannot be regarded as time-barred on any incidental development within the conduct of the proceedings.
The question of waiver has been settled as a finding of fact.
4. Towards the maintenance of his first contention the learned counsel for the petitioners has argued that in the suit the plaintiff/respondent No. 1 was ordered to deposit one-fifth of the price of the suit land on 14-9-1977 which deposit the plaintiff/respondent was to make before 14th of September, 1977. The plaintiff/respondent submitted an application on 31-7-1977 for permission to furnish security instead of deposit due to timely inability which was dismissed on the same date.
The learned trial Judge reduced the deposit to one-tenth which amount was to be deposited before the same date as already fixed. The learned counsel has maintained that the order so passed was not in keeping with the dictates of section 22(1) of the Punjab Pre-emption Act and also no notice was given to the defendants/petitioners for such an alteration. By the time this application was made the suit had already become time-barred, so in that sense notice to the petitioners was due before the trial Court could reduce the deposit to one-tenth and on that ground the suit was liable to be dismissed. As to the modification of the order by the trial Court the learned counsel has urged that after dismissing the application for furnishing security the trial Court had become functus officio, so it was not competent thereafter for the court to have reduced the amount as to the deposit to one-tenth.
5. Now section 22(1) of the Pre-emption Act is reproduced here :- "In every suit for pre-emption the court shall at, or at any time before, the settlement of issues require the plaintiff to deposit in court such sum as does not, in the opinion of the court, exceed one-fifth of the probable value of the land or property, or require the plaintiff to give security to the satisfaction of the court for the payment, if required, of a sum not exceeding such probable value within such time as the court may fix in such order.
The expression used herein cannot be interpreted so as to say that a Court cannot fix any amount lesser than one-fifth. The only limitation prescribed is that the amount fixed by the court to be deposited is not to exceed one-fifth of the probable value of the land or property. The emphasis is on the words, "such sum as does not, in the opinion of the court, exceed one-fifth A plain reading of this very section conveys the intention of the Legislature unmistakably. The maximum has been given and not minimum, therefore, in view of the language employed herein it cannot be said that the fixation of one-tenth of the value of the land in any way violates the terms as contemplated and provided in this section. It has been rightly pointed out by the learned counsel for respondent No. 1 that the discretion of the court has been circumscribed only that the amount is not to exceed one-fifth of the price but as to the minimum scale the range is not fixed in this section and where such a law is silent as to the minimum then that can be regarded as having been left to the discretion of the court. However, the discretion is expected to be exercised reasonably.
6. Now the question for determination is whether any notice was necessary to the defendants/petitioners before making the alteration and whether by that time any right and accrued to the defendants/petitioner and had the suit become time-barred had was on that ground liable to be dismissed. The matter, at the time this modification was made, was between the court and the plaintiff/respondent. Notice had been issued to the respondent for 14-9-1977. It is an admitted fact that the suit had been presented on the last date of limitation, therefore, it was not maintained even subsequently that at the time of institution of the suit it was not complete as to its formalities. This act of fixing Zar-e-Panjain or modification is a step within the proceedings has got otherwise nothing to do with the institution of the suit as to its perfection and this being an interlocutory matter the court could pass an order, modify or recall it and for that the court otherwise bad the inherent jurisdiction and since the matter pertained purely to the proceedings and not to the make of the suit and its institution within the required time, therefore, if notice is taken of such things from the point of view of limitation, then the proceedings in a suit are likely to be impeded after every step one way or the other. It is an admitted position in law that if a suit is complete as to its institution and is filed within time, then it remains immune from an attack of limitation up to the point of its culmination. It is worth-noting that the time as to deposit remained the same. The application had been made before the time had fallen as due, so it cannot be regarded as a case of non-compliance as to the order as it stood initially because non- compliance denotes that an order has not been observed or complied with by or before the date which is fixed for that. In this case the court had itself reduced the required deposit upon which the respondent/plaintiff acted, therefore, it can never be regarded that the plaintiff/respondent committed any fault in acting upon such an order. The order this way or that way stood complied with before the target date, therefore, this contention of the learned counsel for the petitioners is not well-placed, so it is rejected. It has been wrongly submitted by the learned counsel that the said application was dismissed. It was partly accepted though disallowed as to security so the contention onward is misconceived.
7. The second contention of the learned counsel as to waiver deserves a serious consideration. The writing (Exh. D/1) relied upon by the learned counsel is by way of a bond which is scribed by Muhammad Abdullah D. W.
1. This in substance appears to be an undertaking given by Muhammad Hanif respondent on behalf of his brother Nizam Din as well as his own self. It is expressed :- "I stand as a surety that the sons of Khuda Bakhsh (the petitioners) may get the land registered in their names, for Nizam Din I stand as responsible. 1 am myself not having ready money nor I am desirous of purchasing the land. However, if Nizam Din disputes anything, in that event I will be responsible for the benefit and loss involved in that."
' Otherwise in this writing the land is given as approximately 12 bighas and the proposed price as Rs, 33,000. The learned counsel for the plaintiff/ respondent has objected to the receiving of this document as a bond on behalf of Muhammad Hanif respondent himself by maintaining that if any assurance was provided that was as to the conduct of Nizam Din so it cannot be construed as an undertaking by Muhammad Hanif respondent himself so as to make this to operate as an estoppel by conduct against him or waiver by him if at all this writing is treated as having been proved. As is apparent on the face of the proceedings this particular document as to its proof has not been dealt with properly by the trial Court and in the same way by the lower appellate Court. The document had been proved by the petitioners by producing the scribe and the marginal witnesses and the proof was within the contemplation of sections 67 and 68 of the Evidence Act. The onus as to formal proof had been discharged, therefore, in those circumstances it was for Muhammad Hanif plaintiff/respondent to have adduced some evidence so as to show that he was not a signatory to the document and that could only be done by requesting the court to refer the matter for comparison to a Handwriting Expert. It is also on the record that such an application was made but it was rejected by the trial Court. In such matters when in the process of proving a particular fact the onus comes to such a pass then the comparison by an expert becomes quite' decisive as to the proof of a particular 'document, therefore, the rejection of the application by the trial Court was not justified. Had there been even no such application, in the very administration of justice, it was the duty of the Court, in the circumstances, to have referred the matter to an expert at the expense of either of the parties. Since this item relates to the mode of proof and as the evidence happens to occupy a pivotal position in a case, therefore, the matter requires to be retried after referring the disputed signature alongwith the specimen or admitted signatures for comparison to a Handwriting Expert and the proof of the signature either way is otherwise going to be decisive of the case as to the point of waiver. Had it been done it would have relieved both the Courts below of their far-fetched considerations in discussing the evidence on the point of waiver. The opinion of an expert, at least, lends additional weight to the evidence adduced by the parties or detracts the value therefrom.
8. For the foregoing reasons I accept this revision petition ; set asid the judgments and decrees of both the Courts below and remand the case to the learned trial Court to decide the issue as to waiver afresh after referring Exh. D. 1 to an expert for comparison of the signature in question with that of the specimen and admitted signatures of respondent Muhammad Hanif. The learned trial Court irrespective of the application of either of the parties can itself refer the matter at the expense of any one of them. In the circumstances of the case, there is no order as to costs.