MUHAMMAD IJAZ KHAN, J.- Through the instant civil revision petition, the petitioner/plaintiff has challenged the judgment and order of learned Additional District Judge-I, Haripur dated 13.07.2011, whereby, he accepted the appeal of respondent/defendant and thereby set aside the order of The learned Civil Judge-I, Haripur dated 17.03.2011, who vide the same had dismissed the application of the respondent/defendant for dismissal of the suit of petitioner/plaintiff on the ground of default in payment of taxes/fees within the period fixed by the trial Court in the ex-parte judgment /decree dated 25.06.2009.
2. This case has got a chequerred history, therefore, the same are reproduced below; i. A suit for possession through enforcement of right of pre-emption was filed by the petitioner then plaintiff namely Qamar Hayat on 22.07.2008 and in the aforesaid suit, the respondent/defendant was summoned, however, despite service he did not appear, therefore, he was placed ex-parte on 13.01.2009 and, thereafter, the petitioner then plaintiff was allowed to produce his ex-parte evidence, who accordingly produced the same and ultimately an ex-parte judgment and decree was passed vide judgment and decree dated 25.06.2009, the operative para of the said judgment is reproduced below; "Keeping in view the abovementioned statements the court comes to the conclusion that plaintiff duly proved his case through oral as well as documentary evidence, therefore, he is entitled for the decree as prayed for subject to deposit of remaining two third preemption amount with the Nazir of the Court within thirty days. He is also bound to pay requisite taxes/fee etc".
In compliance of the aforesaid order the present petitioner well within thirty days i.e. on 23.07.2009 has deposited the two third pre-emption amount, however, as per the direction contained in the aforesaid judgment he was also made bound to pay the requisite taxes/fees etc. ii. It was on 02.03.2010 when the respondent then defendant filed an application for setting aside of the aforesaid ex-parte judgment and decree dated 25.06.2009, which application was contested by the present petitioner, however, the said application was dismissed by the learned trial Court vide order dated 13.04.2010. The aforesaid order was then challenged by the respondent/defendant before the appellate Court and the learned Additional District Judge-II, Haripur vide order dated 26.06.2010 allowed the said appeal and set aside the order dated 13.04.2010 and the application of respondent/defendant for setting aside ex-parte judgment/decree was remanded back to the learned trial Court for decision afresh after recording of pro and contra evidence. iii. During the course of recording of evidence in the aforesaid post-remand proceedings, the respondent/ defendant submitted an application for the dismissal of the suit on the ground of non-payment of the taxes/fees etc. as directed in the exparte judgment and decree dated 25.06.2009 which application was contested by the present petitioner, however, the same was dismissed by the learned trial Court vide order dated 17.03.2011. The respondent/defendant being aggrieved of the same filed an appeal before the learned Additional District Judge-I, Haripur which appeal was allowed vide impugned order dated 13.07.2011 and thereby dismissed the suit of petitioner/plaintiff on the ground of non-payment of taxes/fees within thirty days which order has now been challenged by the petitioner/plaintiff through the instant revision petition.
3. Arguments of the learned counsel appearing on behalf of parties were heard in considerable detail and the record perused with their able assistance.
4. In essence, the objection of the respondent/defendant is that since the petitioner/plaintiff was directed by the learned trial court vide exparte judgment and decree dated 25.06.2009 to deposit the two third pre-emption amount within thirty days. Petitioner/plaintiff was further directed to pay the taxes/fees without stipulation of any time for the same. Nevertheless, the petitioner/plaintiff has paid the two third pre-emption amount within the stipulated period of thirty days, however, since he has not paid the directed-cum-requisite taxes/fees, therefore, his suit was liable to be dismissed, whereas, the stance of the petitioner/plaintiff is that as per direction of the learned trial Court as contained in the ex-parte judgment he has paid the two third pre-emption amount within thirty days but since on one hand the direction of taxes/fees was uncertain and on the other hand an eventuality for the payment of said taxes/fees has not arose within thirty days though later-on, on 20.08.2009 the same were also deposited, therefore, the learned appellate Court has wrongly dismissed the suit of petitioner/plaintiff.
5. In order to address the aforesaid controversies between the parties, it would be relevant to reproduce the operative para of the ex-parte judgment and decree dated 25.06.2009.
"Keeping in view the abovementioned statements the court comes to the conclusion that plaintiff duly proved his case through oral as well as documentary evidence, therefore, he is entitled for the decree as prayed for subject to deposit of remaining two third preemption amount with the Nazir of the Court within thirty days. He is also bound to pay requisite taxes/fee etc".
It is an admitted fact on both ends that the petitioner/plaintiff has deposited two third pre-emption amount within thirty days, however, the requisite taxes and fee has not been deposited in thirty days and the same were deposited on 20.08.2009. The aforesaid judgment would show that it was directed that the two third pre-emption amount be paid in thirty days, however, no specified period for the deposit of taxes/fees was fixed. The aforesaid judgment would also show that there is no self-operative default clause in the same to the effect that in case of failure to deposit the taxes/fees within thirty days the suit shall be dismissed and thus under the established jurisprudence when a judgment and decree do not have a self-operative default clause then such suit could not be dismissed for a default, if any.
6. It is also relevant to mention here that in consequence of the aforesaid judgment, a decree sheet was also drawn by the learned trial Court, the said decree sheet being relevant is also inserted below. {{IMAGE}} A mere perusal of the aforesaid decree sheet would show that the same is completely silent about a condition qua any direction to the petitioner/plaintiff to deposit two third pre-emption amount along with taxes/fees within thirty days or else his suit is to be dismissed and as it is the decree which is to be binding on the parties and when the same lacks any such directions or condition then any default in payment of taxes/fees within stipulated period would not be fatal for the petitioner/plaintiff, therefore, on this ground too the learned appellate Court has wrongly dismissed the suit of petitioner/plaintiff. In "Dost Muhammad's case reported as 1984 SCMR 325 it was held that there was no self-operative default clause in the decree and it stipulates that the plaintiff failed to pay or deposit in Court Rs. 400,000/- towards the price of the land by 6th of May, 1978 their suit would be dismissed and when the decree did not envisage an automatic dismissal then any default would not be fatal for the plaintiff. Similarly, in Nazir Ahmad's case reported as 1987 SCMR 1704 it was held that in absence of a self-operative default clause in the consent decree then any default would not be fatal.
7. As far as the legal aspect of the case is concerned it would be relevant to mention here that since it was a pre-emption suit and in such suit the payment of one third pre-emption amount at the initial stage of the proceedings and the payment of any increase or decrease of sale consideration amount at the time of passing of the decree are governed by Section 24 and Section 25 of The (Khyber Pakhtunkhwa] Preemption Act, 1987 (hereinafter is to be referred as The Act of 1987) and Order 20 Rule 14 CPC. These sections of law being relevant are reproduced below;
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 within such period as the Court may fix;.
Provided that if no sale price is mentioned in the sale deed or in the mutation, the Court shall require the deposit of one-third of the probable value of the property.
(2) Where the plaintiff fails to deposit one-third of the sale price or the probable value of the property within the period fixed by the Court, his suit shall be dismissed.
(3) Where the plaintiff withdraws the sum deposited under-subsection (1), his suit shall be dismissed.
(4) Every sum deposited under sub-section(l) 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.
25. Deposit or refund of excess price...
(1) Where a Court passes a decree in favour of a pre-emptor on payment of a price which is in excess of the amount already deposited by the pre-emptor, the Court shall require to pre-emptor to deposit the remaining amount within thirty days of the passing of the decree.
(2) Where a decree is passed for a lesser amount than the amount already deposited by the pre- emptor, the Court shall refund the excess amount to such pre-emptor.
Order 20 Rule 14- Decree in pre-emption suit, ---
(1) Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase-money has not been paid into Court the decree shall-- a) specify a day on or before which the purchase-money shall be so paid, and b) direct that on payment into Court of such purchase-money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause(a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase-money and the costs (if any) are not so paid the suit shall be dismissed with costs.
(2) Where the Court has adjudicated upon rival claims to pre-emption, the decree shall direct,- a) If and in so far as the claims decreed areequal in decree that the claim of each preemptor complying with the provisions of sub-rule (1) shall take effect in respect of a proportionate share of the property including any proportionate share in respect of which the claim of any pre-emptor failing to comply with the said provisions would, but for such default, have taken effect; and b) If and in so far as the claims decreed are different in degree, that the claim of the inferior pre- emptor shall not take effect unless and until the superior pre-emptor has failed to comply with the said provisions.
The comparative perusal of the aforesaid sections of law would show that as per the mandate of section 24 of The Act of 1987 in case the plaintiff fails to deposit the one third pre-emption amount in cash within the period fixed by the Court at the initial stage of the proceedings then in such eventuality his suit shall be dismissed, however, though no such penal provision with respect to the automatic dismissal of suit has been provided in section 25 of The Act of 1987 as per mandate of this provision where the Court passes a decree in favour of pre-emptor on payment of price which is excess of the amount already deposited by the pre-emptor the Court shall require the pre- emptor to deposit the remaining amount within thirty days of the passing of the decree and under Order 20 Rule 14 CPC an order to deposit the purchase money shall be binding upon the plaintiff/petitioner and in case of his failure, it would lead to the dismissal of the suit, therefore, on such score too, the learned appellate Court has erred in law by dismissing the suit for non- payment of taxes/fees within stipulated period.
8. It is also relevant to mention here that this Court as well as the Apex Court have time and again considered the directory or mandatory natures of the section 24 & 25 of The Act of 1987 in many cases and there is judicial consensus that the provisions of section 24 are mandatory, whereas, the provisions of section 25 are directory in nature. The Apex Court in the cases of Muhammad Nawaz (1995 SCMR 105), Nazir Ahmad (1999 SCMR 342), Muhammad Irshad (1991 SCMR 2149), Bhai Khan (1986 SCMR 849), Muhammad Yusuf (2007 SCMR 1485), Riaz Hussain (2005 SCMR 1664) and Shujat Ali (PLD 2006 SC 140), has held that the provisions of section 24 of the Act are mandatory and the time fixed for the payment of one third of sale price when once fixed could not be extended, whereas, the provisions of section 25 of the Act of 1987 are directory and the Courts may in appropriate cases may extend the time period for payment of the pre-emption amount nevertheless, in the present case the petitioner/plaintiff has deposited the two third pre-emption amount well within the stipulated time and the only objection of respondent/defendant was that he has not deposited the taxes/fees within thirty days.
9. Another question which may arise from aforesaid facts & circumstances of the case is that whether the learned trial Court who was seized of the pre-emption suit was legally competent to issue any direction regarding the payment of taxes and fee? The answer to the question is in negative as per Order 20 Rule 14 read with section 24 of The Act of 1987 the trial Court could issue direction for the payment of unpaid purchase money or cost, if any. The decree sheet so drawn in the present case does not show that the learned trial Court has determined the cost of the suit even, whereas, regarding the direction qua the payment of taxes/fees are beyond its lawful authority as well as uncertain all around qua a specific amount or as to whether those taxes and fee have reference to those taxes/fees which had paid by the vendee at the time of pre-empted sale mutation or as to whether they are those taxes and fee which are to be paid by the pre- emptor at the time of attestation of mutation, therefore, it was an omission on the part of the learned trial Court and as such any delay in payment of such taxes and fees could not be held as a contemptuous act on the part of petitioner/plaintiff, for which petitioner/ plaintiff could not be allowed to suffer.
10. As far as the merit of the case is concerned, it is part of the record that when despite service, the respondent/defendant did not appear and he was placed ex-parte and, thereafter, an ex-parte judgment and decree was passed and it was he who initially submitted an application for setting aside the ex-parte judgment and decree which was dismissed by the learned trial Court, however, later-on the same was allowed by the appellate Court and thereby the application of the respondent/defendant was remanded back to the learned trial Court to decide the same after recording of pro and contra evidence who after framing of issues was in the progress of recording of evidence when in the meanwhile, the respondent/defendant submitted an application that the suit of petitioner/plaintiff is liable to be dismissed on the ground that he has not deposited the taxes / fees within thirty days, therefore, the petitioner had earlier opted to set aside the ex-parte judgment and decree so as to contest the suit on merit and then he has filed the instant application for summary dismissal of the suit, therefore, he cannot be allowed to avail two remedies at the same time and thus on this score too the learned appellate Court has erred in law by dismissing the suit of petitioner/plaintiff.
11. In view of the above discussion and exposition of law on the subject, the instant revision petition is allowed and the impugned order/judgment of the appellate Court dated 13.07.2011 is set aside and consequently the order of learned trial Court is restored/maintained and since both the parties are locked in the instant litigations for the last 17 years, therefore, the learned trial Court is directed to conclude the proceedings in the application No. 23/6 of 2010 at the earliest but within a period of six months positively.