Through the captioned constitutional petition filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, the petitioner seeks infra relief: "It is, therefore, very humbly prayed on behalf of the petitioner that this Hon'ble Court may very graciously be pleased to issue, an appropriate writ in favour of petitioner against the respondents whereby order recorded by Additional District Judge dated 11.09.2017 through which revision petition filed by Respondent No. 1 is accepted and consequently orders recorded by trial Court are quashed and resultantly suit filed by the petitioner is held as dismissed may kindly be declared against law, facts, record, without jurisdiction and be set aside, Orders recorded by trial Court on 24.11.2015, 13.08.2016, 11.07.2016 and 04.04.20.17 be restored. Trial Court be directed to conclude the proceedings of suit in the light of evidence and record."
TERSE FACTS OF THE LIS IN HAND:-
2. The petitioner herein (plaintiff) filed a suit for declaration and pre-emption pertaining to land bearing Survey No. 245 min measuring 17 marlas situated at Chellah Bandi Muzaffarabad, against respondents, in the Court of Civil Judge, Court No. 1, Muzaffarabad, on 13.06.2014. The Respondent No. 2, moved an application for rejection of plaint, which was rejected by the trial Court vide order dated 04.04.2017. Feeling aggrieved, Respondent No. 2 preferred a revision petition before District Judge, Muzaffarabad which was entrusted to learned Additional District Judge Muzaffarabad on 26.04.2017. The learned Additional District Judge, accepted the same through order dated 11.09.2017 and dismissed the suit of the petitioner.
3. Objections as well as comments have been filed by Respondent No. 2, wherein the claim of the petitioner has been negated by contending that the petitioner has got no locus standi to file instant writ petition. It is submitted that the learned trial Court directed the petitioner to deposit 1/3' of the consideration amount in cash and furnish the bank guarantee to the extent of remaining 2/3rd in the Court within 30 days, failing which the suit would be deemed to have been dismissed.
On the next date i.e. 24.11.2015, 1/3rd of the consideration amount was deposited, but the bank guarantee to the extent of 2/3rd had not been furnished. It is further submitted that the order passed by the Additional District Judge dated 11.09.2017 is correct and the trial Court travelled beyond its jurisdiction while passing the order dated 04.04.2017, which is against the Azad Jammu and Kashmir Pre-emption Act, 2016, hence, instant writ petition is not maintainable.
4. Mr. Sajid Hussain Abbasi, the learned counsel for the petitioner reiterated the facts and grounds narrated in the petition and contended that Respondent No. 1 has failed to interpret the relevant provision of law i.e. Section 24 sub-section (2) of Azad Jammu and Kashmir Pre-emption Act, 2016; which is the only penal provision, the same envisages that in case of failure on the part of plaintiff to deposit 1/3rd of the sale price, his suit shall be dismissed. He forcefully contended that the whole section does not contain any penal provision regarding non filing of bank guarantee to the extent of remaining sale price. The learned counsel vehemently contended that the petitioner apart from relief claimed as a pre-emptor has sought the relief of declaration as well, in such like position the suit was maintainable and could not be dismissed by misinterpreting the law. The learned counsel prayed that by accepting instant writ petition, the impugned order dated 11.09.2017 passed by the learned Additional District Judge Muzaffarabad may be set aside and orders of the learned trial Court may be restored and trial Court may be directed to conclude the proceedings of suit in light of evidence and record. In support of his submissions, the learned counsel placed reliance upon 2022 SCR 973.
5. The learned counsel for other side fervently opposed the submissions advanced by the learned counsel for the petitioner and defended the impugned order on all counts besides soliciting dismissal of the writ petition by relying on the following case law; i.e.
(i) 2019 SCR 504
(ii) 1989 CLC 2342
6. I have attended to each and every argument advanced and have also gone through all the precedent cases cited before the Court besides brooding over the diverse aspects of this case.
7. A perusal of file reveals that petitioner herein instituted a suit for declaration and pre-emption against the non-petitioners (defendants) regarding land Survey No. 245 min measuring 17 marla situated at Chehla Bandi Muzaffarabad, wherein a sale deed dated 13.02.2014 was also challenged.
The record shows that Respondent No. 2 moved an application for rejection of suit, which was rejected by the learned trial Court through order dated 04.04.2017. It is averred that Respondent No. 2 filed a revision petition against the said order along with some other previous orders passed by the learned trial Court. The learned Additional District Judge after hearing, both parties accepted the revision petition and set-aside the rejection order of the trial Court vide impugned judgment dated 11.09.2017.
8. The main stance of the petitioner is that the learned Court below i.e. Additional District Judge Muzaffarabad has abysmally failed to interpret the relevant provision of law i.e. Section 24 sub- section (2), the only penal provision which unambiguously envisages that in case of failure on the part of plaintiff to deposit 1/3rd of the sale price, his suit be dismissed, whereas the whole section does not contain any penal provision regarding non filing of bank guarantee to the extent of remaining sale price, moreover, the bank guarantee is an undertaking that if its to settle a debt, the bank will cover it. In this regard the learned counsel for the petitioner has referred the case law of our Hon'ble Apex Court reported as 2022 SCR 973 titled "Mudassar Hussain Shakir vs. Muhammad Basharat and another. The relevant caption of the aforesaid verdict is as under: "It may also be stated here that the learned trial Court was mistaken in dismissing the suit on account of withdrawal of the bank guarantee, especially, when no such provision exists in the statute. Even otherwise, the 'bank guarantee' is not something to be withdrawn like case amount from the bank account rather, as stated hereinabove, it is an undertaking that if the debtor fails to settle a debt, the bank will cover it. In this state of affairs, we are of the considered opinion that the judgment and decree passed by the trial Court was bad in law, which was rightly rectified by the learned District Judge, however, the learned High Court failed to resolve the controversy in its true perspective and illegally passed the impugned judgment, which is not liable to be sustained.
For the above stated reasons, we are constrained to accept this appeal, set aside the judgment passed by the High Court and restored that of the District Judge, Bhimber."
8. While the learned counsel for the respondents referred the case law enunciated by the Hon'ble Supreme Court of AJ&K i.e. 2019 SCR 504, titled "Muhammad Aslam vs. Azhar Mehmood".
9. With utmost respect and reverence, both the pronouncements are distinguishable and are not attracted to the peculiar facts of the instant case, both the learned counsel have misconstrued the dicta of the Hon'ble Apex Court.
10. For doing complete justice between the parties I have summoned the record of the case and perused the order sheet. It is useful to reproduce the verbatim of order dated 1I.O7.2016 as well as 13.08.2016 as infra:
11. Juxtapose analysis of the supra order transpires bona Me claim of the petitioner as well as sufficient cause, that too when suit was instituted law was different and subsequently it was replaced initially by an Ordinance in 2015 and thereafter through an Act of Assembly in 2016, thus, during said period perception of uncertainty is also to be considered and resolved in favour of the petitioner.
12. Quando lex est Specialis, ratio autem generalis generaliter lex est intelligenda Supra maxim denotes that when the law is special, but its reason is general then the law is to be understood generally.
13. As provisions of General law i.e., CPC. 1908 and Qanun-e-Shahadat Order: 1984 have been made applicable to the proceedings carried out under Azad Jammu and 'Kashmir Pre-emption Act. 2016.
Thus, the law is to be understood generally to this extent in order to construe inherent powers as well as power of extension of time. (underlining is mine)
14. At the outset, the appellate Court misconstrued Section 24 of the AJ&K Pre-emption Act, 2016 while setting at naught the decision of trial Court dated 04.04.2017. It is useful to reproduce the Section 24 of AJ&K Pre-emption Act, 2016: "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 and for the remaining two-thirds furnish bank guarantee to the satisfactory of the Court within such period as the Court may fix: Provided that such period shall not extend beyond thirty days of the filing of the suit; Provided further that if no sale price is mention in the sale deed on the price so mentioned appears to be inflated the Court shall order the deposit of one-third of the probable value of the property and bank guarantee for the remaining two thirds of such probable value: Provided further that the plaintiff may, in view of bank guarantee, deposit the required amount in cash.
(2) Where the plaintiff fails to deposit one-third of the sale price or the probable value of the property under sub-section (1) within the period fixed by the Court, his suit shall be dismissed.
(3) Where the plaintiff withdraws the sum deposited by him under sub-section (1), his suit shall be dismissed.
(4) Every sum deposited under sub-section (1) shall be available for the discharge of costs.
(5) The probable value fixed under sub-section (1) shall not affect the final determination of the price payable by the pre-emptor."
15. It transpires from perusal of the supra provision of law that under Section 24(2) of AJ&K Pre- emption Act, 2016, suit could only be dismissed for want of depositing 1/3 of the sale price or the probable value of property under sub-section (1) and said penal provision i.e. 24(2) could not be read to the extent of non-submitting bank guarantee by self assessing the same in the codal provision. Thus, the Civil Court (seized with the lis) rightly passed the decision/order on 04.04.2017.
16. Civil Court is mother of all Courts blessed with bouquet of inherent powers to cater such like eventualities in the larger interest of justice.
17. In my estimation rational of depositing 1/3rd amount is a litmus test in order to check the bona fide of the pre-emptor which bank guarantee is a further-step to explicit complete willingness and pocket weightage of the pre-emptor.
18. Civil Court rightly exercised the powers qua enlargement of time/allowing the petitioner to offer bank guarantee.
19. Power qua technical knockout of the cases particularly where infringement of civil rights are involved should be exercised with utmost care and caution, as technicalities cannot stand in the way of justice.
1.
20. Former Chief Justice of Federal Shariat Court Dr. Tanzeel-ul-Rehman in his book has amicably thrown light on the background of right of pre-emption and its rational as per saying of
21. It is useful to reproduce a relevant para from order to reach the rational and intend of right of pre-emption as infra:
22. The leading judgment of Hon'ble Supreme Court of AJ&K handed down in the case titled "Ali Shan vs. Wazir Hussain" 2015 SCR 945 is suffice to understand the rationale and chequered history of the law of pre-emption. In the above said judgment/case law from Indian Jurisdiction has also been referred "Sheri Audh Behari vs. Gajudahar Joiaporia AIR 1954 SC 417. In this judgment foundation and recognition of law of pre-emption in sub-continent has been narrated.
23. The proposition involved in the lis in hand is somehow different keeping in view the peculiar facts of the case, as at the time of institution of suit, law governing and holding the field was the AJ&K Rights of Prior Purchase Act 1993 (B.K) while during the pendency of aforesaid lis existing law was replaced by AJ&K Pre-emption Ordinance, 2015 and thereafter came with the stamp of legislature in the attire of AJK Pre-emption Act, 2016.
24. Under Section 32 of the law in vogue i.e. AJK Pre-emption Act, 2016 applicability of, CPC and Qanoon-e-Shahadat Order has also been recognized.
25. Thus, no ambiguity is left to the extent of the Court seized with the matters qua exercise of powers under inherent jurisdiction bestowed in view of Section 151 of the, CPC or for that matter regarding enlargement of the time under Section 148 of, CPC.
26. Catena of case law vertical as well as horizontal is available on the subject/proposition, thus, it is useful to refer and discuss some important cases in this regard.
27. The Hon'ble Apex Court in the case of Noor Hussain 1990 PSC 1001 while dilating upon the somehow similar proposition held as under:- "Power of extension available to the civil Court, the same could be exercised with or without application"
28. In the case titled M. Arif Khan vs. Jahandad Khan 1993 SCR 230, the Hon'ble Supreme Court dealt with the identical proposition and endorsed the previous view taken by the Apex Court in the case titled Noor Hussain Shah vs. Ali Gohar PLD 1990 SC AJ&K 22. It is useful to reproduce the relevant pars of the said pronouncement of the Apex Court.
"Since the whole of 26th of April was available to the plaintiff for filing of the security bond the, ordinary course for the Court would have been to pass no order and adjourn the case to the next day or any other appropriate date and if on that subsequent date it was found that the plaintiff had not filed the security on 26th April the plaint should have been rejected. But as it is, the Court adopted a different course. The time when the order was recorded on 26th April is not known and the possibility cannot be ruled out that the case might have been called in the morning. In any case there was still time for filing of the security bond on that day. It is therefore, clear that the Court could not have passed order for rejection of the plaint when the case was called on for hearing. Once we reach the conclusion that the Court could not reject the plaint when the case was called on 26th April it follows that the Court had to fix another date when it could be seen whether the requisite bond had been filed on 26h April but the course adopted by the Court was that while fixing another date period was also extended. In view of this extension it was no longer necessary for the plaintiff to file the security bond on that date. In these circumstances our view is that the learned Judge of the High Court was right in observing that if order granting extension is now set aside it would amount to penalising the plaintiff for an act of the Court. Since the default in filing the bond on 26th April occurred, at least, partly due to the extension grantedly the Court it constitutes sufficient reason for granting extension. We may also observe that after the case was remanded by the High Court no material was brought on record in order to show some justification for grant of extension existed but the reasons which weighed with the High Court was available on the record and we are satisfied that the High Court acted in the interests of justice while taking note of the circumstances favouring the pre-emptor in the case."
In 2015 YLR 709 case titled "Liaqat Ali vs. Aitzaz Ahmed" Hon'ble Lahore High Court exposed its esteemed wisdom as under: "Period of 30 days qua depositing amount of 113rd is to be reckoned from dote of order of the Court to deposit the said amount."
In 1996 SCR 88 same view has been taken by the Honble Apex Court in this regard.
It has been held in 1985 SCMR 192 "Khuda Bakhash's case", as under.
"The decision of the trial Court qua enlargement of time is absolute."
29. It is evident and crystal clear from verdict of the Hon'ble Supreme Court expounded in 1993 SCR 230 that powers under Section 148 of CPC are very much available to the trial Court dealing with the matter.
30. The Hon'ble Supreme Court of AJ&K has laid down in the case titled "Noor Hussain vs. Ali Gohar 1990 MLD 1272 (which is a case of identical proposition): "In our view the learned Judge in the High Court was right in holding that the whole of 26th of April was available to the plaintiff for filing the security bond. The order of the trial Court did not require the plaintiff to file the security bond before the next date of hearing but the order said that he was supposed to do so uptil or the next date. Although, as held by the learned Judge in the High Court, the order is clear but, in our view, if there is any vagueness or inexactness in the order of plaintiff cannot be penalised for it. It is the duty of the Courts to record orders in clear terms and in cases of ambiguity it is not proper to penalise a party.
Since the whole of 26th of April was available to the plaintiff for filing of the security bond the ordinary course for the Court would have been to pass no order and adjourn the case to the next day or any other appropriate date and if on that subsequent date it was found that the plaintiff had not filed the security on 26th April the plaint should have been rejected. But as it is, the Court adopted a different course. The time when the order was recorded on 26th April is not known and the possibility cannot be ruled out that the case might have been called in the morning. In any case there was still time for filing of the security bond on that day. It is therefore, clear that the Court could not have passed order for rejection of the plaint when the case was called on for hearing. Once we reach the conclusion that the Court could not reject the plaint when the case was called on 26th April it follows that the Court had to fix another date when it could be seen whether the requisite bond had been filed on 26th April but the course adopted by the Court was that while fixing another date period was also extended. In view of this extension it was no longer necessary for the plaintiff to file the security bond on that date. In these circumstances our view is that the learned Judge of the High Court was right in observing that if order granting extension is now set aside it would amount to penalising the plaintiff for an act of the Court. Since the default in filing the bond on 26th April occurred, at least, partly due to the extension granted by the Court it constitutes sufficient reason for granting extension. We may also observe that after the case was remanded by the High Court no material was brought on record in order to show some justification for grant of extension existed but the reasons which weighed with the High Court was available on the record and we are satisfied that the High Court acted in the interests of justice while taking note of the circumstances favouring the pre-emptor in the case."
31. Application for amendment in the order regarding filing Bank Security was moved on 22.10.2015 i.e. 30 days which was duly entertained by the trial Court. It is pertinent to mention here that at that time the trial Court had control over the proceedings. By any stretch of imagination if application was not tenable it must have been rejected or returned back to the applicant, thus, entertainment of application in this regard quo enlargement or seeking amendment in this regard was preferred by the petitioner well within 30 days from order of the Court. If it is assumed that application tendered by the petitioner was not tenable even then it is fault on part of the Court for which' the petitioner could not be penalized.
Actus nemini facit iniuriam The maxim above denotes that pre-emptor should not be held liable due to act of the Court.
32. Penal clause provided in AJ&K Pre-emption Act, 2016 is Section 24(2) which does not cover the Bank Security, hence, in like eventuality suit of the petitioner in guise of Section 24(2) does not entail dismissal particularly when application of the applicant was entertained well within 30 days from order of the Court in this regard.
33. Trial Court should seek explanation from the plaintiff as to why the order of the Court was not complied with (as contemplated in 1996 SCR 88) and the application of the petitioner (plaintiff) should not have been entertained qua seeking amendment in the order regarding deposit/submitting surety bond. Thus, act of the Court qua entertaining application in this regard created a hope to the petitioner litigant.
34. Before parting with the decision it is pertinent to note that under Section 34 of the AJK Pre- emption Act, 2016, the Govt. may make rules, by notification to carry out the purposes of this Act but no rules in view of the above section have been framed so far. Thus, in order to determine and pave roadmap and procedural modalities quo carrying out the very purpose of special enactments the concerned quarters i.e. Azad Jammu and Kashmir Government is directed to do needful in this regard within 03 months and compliance report be submitted to the office of Registrar of this Court.
Synopsis:-
35. Pursuant to the above discussion, judgment rendered by the learned Additional District Judge Muzaffarabad dated 11.09.2017 is legally not sustainable, hence, hereby set at naught while setting aside the same. Suit instituted by the petitioner shall be deemed to be pending before the trial Court Muzaffarabad (having territorial jurisdiction over the lis) which shall be decided in accordance with law avoiding un-necessary adjournments within the period of 04 months.
Constitutional petition stands accepted.
1. PLO 1994 SC 1 Haji Rana Shabir v. Govt. of Punjab.