1. WAHIDUDDIN AHMAD, J.--This appeal by special leave is directed against the order of the West Pakistan High Court, Lahore, in Civil Revision No, 231 of 1970, dated the 20th March 1970, whereby the petition was dismissed in limine. It has arisen in the following circumstances:-- Respondents brought a suit for possession by pre-emption on the 11th January 1967. The appellants-vendees resisted the suit. After trial, the suit was decreed on the 15th January 1969, in the following terms:-- "That the suit of the plaintiffs is decreed against the defendants with costs regarding the suit land for a total price of Rs, 20,054.34, the plaintiffs shall deposit the said price after deducting the Zare- Panjam if any, before 15-3-1969, failing which the suit of the plaintiffs shall stand dismissed with costs."
2. Thus the respondents were directed to deposit Rs, 20,054.34 after deducting the Zare-Panjam before the 15th March 1969, failing which their suit was to be dismissed with costs. The respondents, on the 8th March 1967, deposited a sum of Rs, 6,000 as Zare-Panjam. They deposited a further sum of Rs, 14,054 on the 11th March 1969. In this way the respondents deposited a sum of Rs, 20,054 which fell short by 34 paisas of the amount they were required to deposit in the Court before the date fixed, namely, 15th March 1969.
3. On the 6th April 1969, the appellants made an application for payment of Rs, 20,054.34. They, however, learnt that only Rs, 20,054 were deposited by the respondents. Thereupon, the appellants moved an application on the 6th June 1969, praying that as paisas 34 have been deposited less than the amount required, the suit should be deemed to have been dismissed with costs in terms of the decree. On the 4th September 1959, the respondents filed an execution application for the possession of the property in dispute and for recovery of the costs. Along with the execution application they also made a petition that as they have deposited only Rs, 20,054, paisas 34 may be adjusted from the costs of Rs, 1,700 and 1,699.66 may be paid to them out of the amount deposited by them in Court. In reply to the application made by the appellants for the dismissal of the suit, the respondents alleged that the appellants hive received a sum of Rs, 8,000 from them on the 15th March 1969, as a result of a compromise between the parties that they would desist from further litigations. The learned executing Court, by order dated the 5th March 1970, rejected the plea of the respondents that the dispute between the parties had been compromised but held that unpaid paisas 34 can be deducted from the costs and the suit cannot be deemed to have been dismissed and dismissed the objection filed by the appellants. This order was challenged in the above- mentioned civil revision in the High Court of West Pakistan, Lahore, and a learned Single Judge, after reviewing the case-law on the subject by order dated the 20th March 1970, came to the conclusion that the order passed by the learned Civil Judge is legal and with jurisdiction and no exception can be taken to such an order under section 115, C. P. C. This order is being challenged in this appeal before us. Leave was granted in this case to consider the question whether the pre-emptors are entitled to ask for the adjustment of shortage of 34 paisas against the costs awarded to them amounting to Rs, 1,700.
4. The short question for consideration, therefore, is whether the view of the Courts below that the pre-emptors are entitled to deduct shortage of 34 paisas from the costs a warded to them is correct or not. Mr. M. Tufail Khawaja, learned counsel for the appellants, has contended that in terms of the decree, the respondents having failed to deposit the entire amount their suit shall be deemed to be dismissed. He further contended that the statutory law of pre-emption constituted a draw-back on the freedom of contract and security of tile and its provision must, therefore, be construed and applied strictly against the claims of the pre-emptors. According to him, pre- emption is a predatory right and equitable relief cannot be given in such cases. In support of his contention, the learned counsel has relied on the cases of Saeed Ahmad and others v. Karam Singh , Shah Muhammad and others v. Hayat and others and Abdul Wahid v. Mst. Zamrut . In the first case, a Division Bench of the Lahore High Court held as under:-- "The civil law leans always in favour of. freedom of contract, and security of title. The statutory law of pre-emption constituted a draw-back on both these principles, and its provisions must, therefore, be construed and applied strictly against the claims of pre-emptors. The discretionary power given to the trial Court by section 149, Civil Procedure Code, as it fell to be exercised in the circumstances of the present case was in effect a power to extend limitation.
5. It must be held that, specially where the suit is one for pre-emption, the discretion conferred by section 149, Civil Procedure Code, needs to be exercised with the greatest care, where extension of limitation is also involved."
6. In the case of Shah Muhammad and others v. Hayat and others, the High Court upheld the order of the trial Court in refusing to allow an amendment of the plaint. In that connection it was observed as under:-- "It has been said by some eminent Judges that pre-emption being but a predatory right, Courts should grant but little concession to a plaintiff in such a suit, and as I am in respectful agreement with that view, I see no ground for holding that by refusing to allow amendment of the plaint the learned trial Judge exercised his discretion capriciously."
7. In the case of Abdul Wahid v. Mst. Zamrut at page 159, it was observed as under :- "Pre-emption has been described in authoritative judgments for a great many years as a1 2 3 predatory right, and while it must be allowed, where the necessary conditions are satisfied, the Courts have frequently given their approval to certain modes by which title can be acquired, which place difficulties in the way of pre-emptors."
8. The learned counsel has further relied on the case of Shah Wali v. Ghulam Din alias Gaman and another . It was held in that case as under :- "That for the respondent's default in making payment of the correct amount within the time fixed by the appellate decree his suit stood dismissed and there was no question of extension of the time involved, either by the original Court or by the appellate Court thereafter, the appeal or revision from the appellate decree having already been dismissed."
9. On the basis of these decisions the learned counsel for the appellants contended that the Courts below were not justified in allowing the adjustment of paisas 34 from the costs awarded to the respondents.
10. The point under consideration was considered by a Division Bench of the Allahabad High Court in the case of Ishri v. Gopal Saran and another , and it was held that the pre-emptor is entitled- to adjust the purchase-price towards the costs of the suit awarded to him. In this connection Mahmood, J., who was a distinguished Judge of this sub-continent, observed at p. 355, as under :- "Is there, then, anything in the Code, or any equitable consideration which would prohibit a pre- emptor-decree-holder from availing himself of the doctrine of set-off by deducting the costs allowed to him from the purchase-money which he has to deposit under the very decree which awards him costs ? The Civil Procedure Code, as we have pointed out, falls short of providing any specific rule to meet exactly the case before us. The doctrine of set-off, which owes its original to Roman jurisprudence, was well known to the civil law under the more comprehensive title of compensation, which, in the words of Story, J., may be defined to be the reciprocal acquittal of debts between two persons who are indebted, the one to the other; or, as it is perhaps better stated by Pothier, compensation is the extinction of debts, of which two persons are reciprocally debtors to one another, by the credits of which they are reciprocally creditors to one another. The civil law itself expressed it in a still more concise form compensatio est debiti et crediti inter se contributio. The civil law treated compensation as founded upon a natural equity, and upon the mutual interest of each party to have the benefit of the set-off, rather than to pay what he owed, and then to have an action for what was due to himself--(Story's Eq. Juris, ss. 1438-39). The doctrine of compensation in the civil law, of course, has never been fully adopted either in England or in this country, probably for reasons based upon the inconvenience and delay which would arise in the trial of suits. But in the case before us there can be no such inconvenience or delay; the decree which declares the plaintiff-pre-emptor entitled to obtain possession of the property in suit on payment of the purchase-money declares him, in the same breath, entitled to recover costs from those against whom the decree has to be enforced."
11. He also repelled the contention that a pre-emptor-decree-holder cannot deduct the costs from the purchase price awarded to him. In this connection he observed as under:-- "But it is contended by the learned pleader for the respondents; in support of the lower appellate Court's judgment, that the pre-emptor-decree-holder-appellant's right to execute his pre-emption decree was contingent upon his depositing the full purchase-money within time, and that till such deposit was actually made he could not be held to be entitled to any costs whatsoever, and could not therefore deduct them from the purchase-money in making the deposit required by the decree. The argument, though plausible, has no force. It seems to aim at giving to mere formality the significance of a substantive effect. For it seems to us to involve a very untenable proposition, that for a preemptor-decree-holder the only way to enforce his decree is to come into Court with the full purchase-money in the one band, offering it to the judgment-debtors, and to stretch out the other hand asking them to give him the costs which the very decree, under which he is4 5 depositing the purchase-money, awards him. The argument also involves the contingency that a pre-emptor should pay up the purchase-money to the judgment-debtors in ready cash, and may have to wait possibly for years before recovering from them the costs awarded to him by the Court, and it is conceivable that he may never be able to recover them at all. We cannot regard such results as consonant with the principles of justice, equity and good conscience, which we are bound to administer in such cases; and holding these views, we cannot adopt the reasoning upon which the judgment of the lower appellate Court proceeds, nor the argument urged before us in support of that judgment by the learned Pleader for the respondents. The effect of our views is to apply, by analogy of sections 221 and 247, the doctrine of set-off to the case before us--a course which is consonant in principle with that followed by Jackson, J., in the case of Jugo Mohun Bukhee v. Soorendra Nath Roy Choudhry 13 W R 106, long before the Legislature formulated the rules contained in the two sections just referred to.
12. This view was taken in 1884 and has since been followed in this sub-continent without any dissent.
13. It was followed in the cases of Bechai Singh v. Shami Nath Tewari and others , Bahadar and another v. Jalal and others , Ram Lagan Panic and another v. Mohamed Ishaq Khan and another , Imam Din v. Jalal and another , Bhagwati Devi v. Chandrika Prasad , Chandrika Prasad v. Mst.
14. Bhagwati Devi and Alum Din v. Muhammad Nawaz and others . Thus there is unanimous view that where a pre-emptor is directed to pay into Court a B specific sum of money and is awarded costs he is entitled to deduct the amount so awarded from the sum he is directed to pay in Court.
15. The contention of the learned counsel for the appellants that as pre-emption is a predatory right and, therefore, equitable principles do not apply to such cases has not impressed me. The well- established role of law that the Courts in this country are bound to administer justice in consonance with the principles of equity, justice and good conscience is fully applicable to such cases. The principle that a pre-emptor can deduct any amount due to him from the decretal amount has been recognised even by this Court in the case of Shah Wali v. Ghulam Din and another. This is apparent from the following narration of facts by Rehman, J. :- " I he plaintiff-respondent held a mortgage over the suit land to the extent of Rs, 800 which he was entitled to deduct out of the money to be deposited by him but taking that fact into account the deposit is still fell short of the pre-emption money as fixed by the appellate Court by Rs, 123.75."
16. This fact was also noticed by Hamoodur Rahman, J., as he then was, as is apparent from the following:-- "In the meantime the pre-emptor had, on the 18th April 1962, made a further deposit of Rs, 4,076.25 in the hope that this sum would be sufficient to cover the enhanced amount which he was required to deposit by the appellate Court, after deducting certain sums due to him on account of a mortgage over the suit lands. This calculation, however, turned out to be incorrect and the deposit fell short by Rs, 123.75."
17. The view that principles of equity are attracted in suits of pre-emption can also be supported from the observation of Cornelius, C. J., in the above cited case. The learned Chief Justice while considering the question whether the rule of reasonable time can be applied to deposit of pre- emption money, observed as under:-- "I would like here to make an observation regarding one of the judgments of the Lahore High Court, which was placed before us at the hearing. This is the case of Sukhram Das v. Nazar Muhammad I L R 6 Lah. 316. In that case the decree for pre-emption was made on the 22nd March 1916, against the vendee, who appealed successfully in the first appellate Court, but the pre-emptor succeeded by further appeal to the High Court in obtaining a decree for pre-emption on the ad February 1920.
18. The money was deposited on the 26th February 1920, under an order of the trial Court granting extension of time, which was upheld in the first appeal, but on further appeal in the High Court by the vendee, it was held on the 19th February 1925, that the suit was liable to be dismissed for failure6 7 8 9 10 11 12 on the part of the pre-emptor to comply with the condition regarding payment of the pre-emption money contained in the decree of the trial Court. The learned Judges in the High Court observed that by the decree of the 2nd February 1920, the High Court simply intended to restore the decree of the trial Court, without variation therein. To enable deposit after expiry of the terminal date fixed by the trial Court in 1916, a variation of that decree would be required, and it was not in the power of the executing Court to make any such variation. Speaking with respect, that is a conclusion with which I find myself unable to agree. The matter may have been corrected by obtaining from the High Court an order supplementing itsappellate decree of the 2nd February 1920, by fixing a date for deposit of the pre-emption money. Alternatively, the rule of 'reasonable time', laid down in the Nagpur case cited above, may have been applied. If power could not be derived from any other source, I conceive that under section 151, Civil Procedure Cod; the High Court would have been competent to make such an order as would not only advance the justice of the case, but also have the effect of giving validity to the High Court's own decree of the 2nd February 1920."
19. This view was also taken by Hamoodur Rahman, J., as he then was. suits for specific performance of contract and suits for redemp The doctrine of equitable set-off has also been applied. In the case of Brijnath Dass v. Juggernath Dass the right to set-off the cos's due to the plaintiff against the amount due by him was recognised in a redemption suit. It was held in that case that the plaintiff was entitled to redemption on paying the amount directed less the costs awarded to him. This principle was further applied by the Madras High Court in the case of Chinqammal v. Chidambara Khothanar . In that case, the trial Court passed the decree that on the plaintiff's depositing into Court a certain sum within a fixed time the defendant was to execute a deed of conveyance in his favour. It was further directed that the defendant was to pay the plaintiff a certain amount by way of costs. The plaintiff deposited a sum of money after deducting the amount of costs payable to him under the decree. On these facts it was held by the Madras High Court that the doctrine of equitable set-off was applicable and the plaintiff deposited the proper amount in Court.
20. In the light of the above discussion, I am of the view that the claims of the appellants in respect of the purchase-money and the respondents in respect of the costs are in the nature of cross demands arising out of the same transaction and the doctrine of equitable set-off as applied by the Allahabad High Court in suits of pre-emption is fully applicable to such cases. This view has been firmly established and I am not inclined to upset it after a lapse of about 80 years.
21. In that view of the matter I am satisfied that the Courts below have applied the law correctly and there is no ground to take exception to the view taken by them. Accordingly, the appeal is dismissed. In the special circumstances of the case, the parties are directed to bear their own costs.
22. HAMOODUR RAHMAN, C. J.--I agree. SAJJAD AHMAD, J.--I agree.
23. M. R. Khan, J.--I agree. PLD 1949 Lah. 380 PLD 1960 Lah.975 PLD 1967 SC 153 PLD 1966 SC 983 (1884) 6 All. 351 10 I C 454 1888 P R 70 AIR 1919 All. 45 AIR 1922 Lah. 42 AIR 1937 All. 75613 14 1 2 3 4 5 6 7 8 9 10