' Since common questions are involved in Civil Revisions Nos. 229 to 232 of 1983, I propose to dispose of them per this judgment.
2. The respondents Khan Sahib and his three brothers entered into three sale transactions and one of exchange of land and the petitioners brought four pre-emption suits Nos. 91, 92, 93 and 94 with regard to the following mutations, respectively, against them :-
(1) Mutation No, 1124 for Rs, 19,63,143.
(2) Mutation No, 1207 for Rs, 15,000.
(3) Mutation No, 1123 for Rs, 20,36,115.90.
(4) Mutation No, 1208 of exchange.
' The plaintiffs were directed to deposit Rs, 7,00,000, Rs, 5,000, Rs, 8,00,000 and Rs, 3,000 in these cases, respectively, before 10th July, 1983. They submitted applications praying for permission to deposit part of the amount in cash and to furnish security for part of it. Their applications were allowed but they challenged the orders by revisions to the Court of the District Judge. The revisions on their request were treated as appeals and were dismissed. It is against these appellate orders that the instant revision petitions have been preferred in this Court.
3. The learned counsel for the petitioners strenuously contended that the impugned orders had been passed in violation of the mandatory provisions of section 23 of the N.-W.F.P. Pre-emption Act inasmuch as the Court should have required the petitioners either to deposit the pre-emption money in cash or to furnish security to its satisfaction and that the Court had gravely erred in requiring the petitioners to deposit part of the pre-emption money in cash and for a part to furnish security. Since the interpretation of section 23(1) of the N.-W.F.P. Pre-emption Act (hereinafter called the Act) is involved it is reproduced as under :- "Section 23. Deposit of pre-emption money.-(1) In every suit for pre-emption the Court shall 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, 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 orders."
The word "or" underlined* by me is significant and a plain reading of subsection (1) shows that it is imperative for the Court to require the plaintiff to deposit in Court such sum as does not in its opinion exceed the probable value of the land or property or to require him to A give security to its satisfaction for the payment, if required, of a sum not exceeding such probable value. The word "or" appears to have been used as a disjunctive. To suggest that it has been used as conjunctive would change the entire complexion of this subsection. Maxwell on the Interpretation of Statutes (Twelfth Edition) has at page 232 observed that in ordinary usage "and" is conjunctive and "or" disjunctive.
But to carry out the intention of the legislature it may be necessary to read "and" in place of the conjunction "or" and vice versa. In the Construction of Statutes by Crawford (1940 Edition) the following observation at page 322 has been made :- "S. 188. Disjunctive and conjunctive words.-In ordinary use the word "or" is a disjunctive that marks an alternative which generally corresponds to the word "either". In face of this meaning, however, the word "or" and the word "and" are often used interchangeably. As a result of this common and careless use of the two words in legislation, there are occasions when the Court, through construction, may change one to the other. This cannot be done if the statute's meaning is clear, or if the alteration operates to change the meaning of the law. It is proper only in order to more accurately express, or to carry out the obvious intent of the legislature, when the statute itself furnished cogent proof of the error of the legislature, and especially where it will avoid absurd and impossible consequences, or operate to harmonize the statute and give effect to all of its provisions."
I am of the view that the meaning of the statute, namely, section 23(1)IB of the Act, is clear and, as such, "or" cannot be read as "and".
4. Section 22(1) of the Punjab Pre-emption Act has been principally couched in the same words and in it too the word "or" appears. Sir Shadi Lal in his commentary on the Law of Pre-emption (Third Edition) has observed that subsection (I) makes it obligatory on the Court to see that the plaintiff in a pre-emption suit deposits in Court a sum of money not exceeding one-fifth of the probable value of the property or [Here in italics] ' gives such security as the Court thinks fit for the payment, if necessary, of a sum of money not exceeding such probable value. It is at page 472 that when this probable value is determined, then the question arises, who is to make the choice between the two alternatives laid down by the section. Is it the duty of the Court to decide whether a deposit should be made or a security should be given or is it the right of the plaintiff to choose one of the two alternatives. He remarked that "the section does not make it quite, but I am inclined to think, though not without some hesitation, that the choice lies with the plaintiff". It is in the note of Rustomji that the language of subsection (1) of the Act had been altered and it is submitted that it is for the Court to decide whether the plaintiff should make a deposit or file security. Reliance in this context has been placed on Inayat v.
Darbara Singh and others (1). It is manifest from the above observation that one of the two alternatives is to be chosen. The Court is to require the plaintiff either to deposit the amount or furnish security and it is for the Court to make choice between the two alternatives. In the commentary on the Law of Preemption in the Punjab by T. P. Ellis (Fifth Edition) it is remarked at page 319 with regard to section 22(1) that "it is necessary to note that it is the option of the Court, not of the pre-emptor, which determines whether a deposit is to be made or security given. That is when a Court has directed a deposit to be made, it is not open to the pre-emptor to say that he is not prepared to make a deposit, but will give security under this section". The object of the section is to prevent speculative suits, or suits brought simply with the intent of worrying the vendor in the hope D of getting him to pay the pre-emptor something in order to induce him to drop his claim.
The payment of a deposit is an attempt to ensure some guarantee of bona fides in the suit or appeal.
5. In Zaman Mehdi Khan v. Hayat Khan and another (2) remarks have been made about "the option as regards choice between cash and security". It cannot be disputed that it is within the competence of the trial Court to replace the order for deposit of the amount in cash by E one requiring security before the settlement of issues and this is the view expressed in Murad Ali Khan v.
Mian Abdullah Shah and another (3)In Ch. Zulfiqar Ali v. Mian Akhtar Islam and another (4) the question was whether the trial Court was competent to vary its original order requiring security and to replace it by an order in the alternative form allowed by the law, viz an order for deposit of one- fifth of the purchase price. It was laid down that such a power did exist but it must be exercised before the settlement of issues and it must be exercised expressly. Reference was made to Zaman Mehdi Khan's case where it was held that since issues had already been settled, section 22(1) was no longer applicable and the option as between a cash deposit and security had already been exercised. It was observed at page 424 that "there is nothing in subsection (1) to indicate that the choice can be made only once in a suit." It was further observed in the next paragraph that :- "It seems to us that if the intention of the law were that the Court's first choice should be unalterable, there would have been no need to mention in subsection (4) both the alternatives, namely, the deposit as well as the security and it would
(1) 55 I C 621 (2) A 1 R 1938 Lah. 452
(3) PLD 1965 Pesh. 90 (4) PLD 1967 SC 418 ' have been sufficient to say that the plaint should be rejected if the plaintiff should fail within the time fixed to comply with the order made by the Court in the relevant respect under section 22(1). A similar result might have been produced by adding the words "as the case may be" after the words "to make the deposit or furnish security." The language used in subsection (4) appears to us to leave open to the Court under subsection (4) the same choice as the Court could exercise at the earlier stage under subsection (1). In this case the time for making a choice had not expired, so it could not be said that the option was no longer alterable. By an order in writing, the trial Court purported to vary the original order for security and replace it by the alternative order that the law allowed, for the making of a deposit within a certain time, and a deposit was duly made.
It is manifest from what has been reproduced above that the words underlined by me are prominently meaningful and denote that the trial Court has a choice with regard to both the alternatives, namely, the deposit or the security. It can, therefore, be said that both the alternatives could not be adopted by the Court in requiring the pre-emptor to make deposit as well as to furnish security inasmuch as such requirement would tantamount to violation of the provisions of section 23(1). The word "or" re-appears in subsections (3) and (4) also and its user in both the subsections makes it abundantly clear that it is for the trial Court to make the choice. The same powers have been vested in the appellate Court by subsection (2). The question agitated before me was directly raised in Niaz Muhammad Khan v. Mian Fazal Reqib (1) and was referred to at page 138 as under :- "As a last resort, learned counsel raised a completely new point, namely, that the order made by the trial Court on 9th April, 1966 was in contravention of the provisions contained in subsection (1) of section 23 of the Act, as the section contemplated either deposit in cash or security not exceeding the probable value of the land or property in suit, but in the instant case the trial Court had required both a cash deposit as well as security, with the result that the non-compliance of such an illegal and invalid order could not incur the penalty provided in subsection (4) of the said section."
' It was, however, observed that "this point was not raised by the appellant at any stage of the proceedings in the trial Court or in the High Court ; nor was it urged at the time leave was obtained in this case." It was, therefore, not finally determined.
6. The next question that arises is with regard to the practice prevalent in the Courts of our Province. It is the practice of the trial as well as appellate Courts that on the applications of the pre-emptors part of the amount is permitted to be deposited in cash and for a security is required to be furnished. The learned counsel for the parties could not cite any precedent at the Bar to show that the learned trial Court was competent to require the petitioners to deposit part of the amount in cash and to furnish security for a part of it being so, the principle of stare devises shall not be attracted. In Corpus Juris Secundum, Volume
(1) PLD 1974 SC 134 [Here in italics] 72, at page 471 the subject of practice and procedure in law has been dealt with as under :- "The words "practice" as used in the law, is sometimes referred to as being a technical term, but the word "procedure," as a legal term, is so broad in its signification that it is seldom employed as a term of art, and it is not well-understood, and is difficult to describe or define.
' Together, the words "practice" and "procedure", in a larger sense, and as used in law, mean or include the mode of proceeding by which a legal right is enforced, as distinguished from the substantive law which gives or declares the right. The words "practice" and "procedure", separately, have this same signification. "Practice" is defined as meaning the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right ; and "procedure" is likewise defined as meaning the modes of conduct of litigation and judicial business, as distinguished from the breach of the law which gives or defines rights."
' It is in Stroud's Judicial Dictionary (Fourth Edition) that the "practice" of a Court. When that word is used in its ordinary and commonsense, denotes the rules that make or guide the cursus curiae, and regulate procedure within the walls or limits of the Court itself, and does not involve or imply anything relating to the extent or nature of its jurisdiction.
7. There is maxim cursus curiae est lex curiae (the practice of the Court is the law of the Court). In Broom's Legal Maxims it is remarked that every Court is the guardian of its own records and master of its own practice ; and where a practice has existed it is convenient, except in cases of extreme urgency and necessity to adhere to it because it is the practice even though no reason can be assigned for it for an inveterate practice in the law generally stands upon principles that are founded in justice and convenience. There is, however, a material distinction between things required to be done by the common or statute law of the land and things required to be done by the rules and practice of the Court.
8. It is in Prem's Judicial Dictionary, Volume III (1964 Edition) at page 1281 that reference has been made to A. N. Chatterjee v. S. K. Mukherjee (1) for the view that however long a practice may be if the provisions of law required a different procedure to be followed, the practice is to be set right.
The subject has been dealt with in Muradally Shamji v. B. N. Lang (2) wherein it is remarked that "practice is a useful guide where a Statute uses a language of doubtful import, but a practice which is in contravention of the law, even if such practice be the practice of a High Court, cannot make lawful that which is unlawful". In view of the above observations it can be said that the practice prevalent in the trial and G appellate Court is inconsistent with the mandatory requirement of section 23(1) of the Act, is not warranted by any provision of law and cannot be approved of.
(1) 58 C W N 367 (2) 53 I C 627 ' In the result, I would accept the revision petitions, set aside the impugned orders of both the learned Courts below and direct the petitioners to deposit in cash within one month Rs, 7,00,000, Rs, 5,000, Rs, 8,00,000 and Rs, 3,000 in suits Nos. 91, 92, 93 and 94, respectively. In view of the legal point involved the parties are left to bear their own costs.