' This regular first appeal filed by vendees-respondents in a pre-emption suit, is directed against judgment and decree dated 20-1-1980 of the learned Civil Judge, Ahmadpur East, District Bahawalpur passed in favour of the plaintiffs/pre-emptors,
2. The dispute in this case relates to land measuring 510 Kanals situated in Mauza Khameesa Pakniwal, Tehsil Ahamdpur East, District Bahawalpur. Nawab Din and Mst. Hadayat Bibi respondent Nos. 6 and 7 herein, being owners of the aforesaid land vide registered sale-deed, dated 22-8-1975 alienated the same for ostensible consideration of Rs,1,83,000 in favour of the appellants.
' On 1-9-1976 respondents Nos. 1 to 5 claiming themselves to be sons of Nawab Din vendor and 'Yakjaddi' of Mst. Hadayat Bibi, instituted suit for possession by pre-emption of the disputed land on the ground that they are heirs of the vendors and had superior right of pre-emption as against the vendees.
' The appellants contested the suit and challenged plaintiffs' superior right of pre-emption. They pleaded that the amount of Rs,1,83,000 was actually paid as price of the land in dispute and claimed Rs,66,000 spent for improvements effected thereon. They also contended that the suit was barred by limitation.
' The learned trial Judge framed following issues:-
(1) Whether the plaintiffs have got superior right of pre-emption?
(2) Whether the ostensible sale amount of Rs, 1,83,000 was fixed in good faith or actually paid?
(3) What was the market value of the suit land at the time of sale?
(4) Whether the defendants have improved the suit land, if so, to what extent?
(5) Whether the suit is barred by time?
(6) Whether the plaintiffs are estopped to bring this suit?
(7) Whether the suit is not maintainable in its present form in view of the preliminary objection No,4 of the written statement?
(8) Whether the plaint is vague, if so, its effect?
(9) Whether the suit has not been correctly valued for the purposes of court-fee? If so, what is the correct valuation?
(10) Whether the defendants-vendees are entitled to recover Rs, 10,000 as registration fee etc. Over and above the actual sale amount?
(11) Whether the suit is defective in view of the preliminary objections Nos. 9 and 10 of the written statement? If so, its effect?
(12) Relief?
' The learned trial Court decided issues Nos. 1,4,5,6 and 7 in favour of the plaintiffs/respondents while issues Nos. 2 and 3 against them. The rest of the issues were not decided because the same were not contested by the parties.
' The learned Court granted decree in favour of the plaintiffs/ respondents subject to payment of Rs, 1,83,000 (inclusive of Zar-ePunjum with a direction to deposit the same before 6-3-1980, failing which their suit would stand dismissed.
' Being aggrieved by the aforesaid judgment and decree the appellants/vendees have preferred this appeal before us.
3. The learned trial Judge in regard to issue No,1 found as of fact, that the plaintiffs were sons of Nawab Din and 'yakjaddi' of Hadayat Bibi vendor. They being related to the vendors had superior right of pre-emption as against the vendees who were strangers to the vendors, Learned counsel for the appellants half-heartedly contended that the pre-emptors were not related to Mst. Hadayat Bibi, when confronted with Exh. P/1 to Exh. P/3 which are copies of the pedigree-tables, connecting her with the pre-emptors through Spondee, their common ancestor was left with no answer. The perusal of the above-mentioned documents read with statement of Muhammad Mansha (P.W.2) leaves no room to doubt, the finding of the learned trial Court on this issue, which is accordingly maintained.
4. The next contention raised by learned counsel for the appellants was that the learned trial Judge was wrong in deciding issue No,4 to ignore the report of the Local Commissioner to the extent of awarding Rs, 5,000 as cost of houses constructed on the disputed land. It was stated that the report of the Local Commissioner was admissible in evidence as contemplated under Order XXVI, rule 10(2), C.P.C.
5. Mian Allah Nawaz, Advocate, on instructions from the respondents, conceded the award of Rs, 5,000 only to appellants. We, therefore, hold the appellants entitled to Rs, 5,000 only on account of the houses constructed by them on the disputed land.
6. The next point argued by learned counsel for the appellants as that the suit of the plaintiffs was barred by time. It was submitted that the land in dispute was sold on 28-2-1975. The suit could have been instituted within one year i.e, on or before 21-8-1976. The suit having been filed on 1-9- 1976 was manifestly barred by limitation. Learned counsel referred to section 53 of the Civil Courts Ordinance (II of 1962) and contended that even during the holidays the suit could have been instituted before a Judge on duty temporarily appointed to entertain urgent matters during holidays.
7. Learned counsel for the contesting respondents on the other hand, submitted that when in appeal or suit, the period of limitation expires during vacation, the suit would be within time if instituted on the first day of the re-opening of Court after vacation. It was asserted that in the instant case, the period of limitation provided for filing the suit expired during summer vacation and he filed the suit on the first day of re-opening of the Court as such the suit was instituted within time.
The contention raised by learned counsel for the appellants has no force. Section 23 of Ordinance (II of 1962) only provides for institution of suits and entrustment of plaints to officers, when the Civil Judge having jurisdiction in the matter, is temporarily not available. On the other hand, section 4 of the Limitation Act, provides clearly that if limitation for the institution of a suit expires during the holidays the suit could competently be instituted on the first day when the Court re-opens after vacation. We, therefore, hold the suit filed by the plaintiffs on 1-9-1976, was within time.
8. Appellants' learned counsel next criticized the observation of the learned trial Court under issue No, 6, to the effect, that there was no evidence on the record in support of the issue. He referred to the statement of Imam Din (D.W.5) who had stated that the bargain was struck at the instance of the plaintiffs. According to him, Mansha (P.W.2) obtained copy of the relevant Jamabandi vide his application Exh. D/4 required for the completion of the deal. It was contended that the plaintiffs waived their right by participating in the bargain and estopped by their conduct to pre-empt the sale. Respondents' learned counsel joining issue, stated that the parties led no other evidence and remained content with their own statements made in this behalf. The onus to prove this issue was on the respondents who pleaded waiver but led no supportive evidence. The mere statement of Imam Din (D,W.5), who had been cross-examined on this point, could not successfully discharge the onus upon the plaintiffs. The document Exh. D/4 does not indicate that the copy of the relevant Jamabandi was obtained by Mansha (P.W.2) in connection with the sale of the disputed land particularly when he deposed that he had obtained the same for producing before Halqa Patwari in connection with Warabandi dispute.
' The next contention raised and vehemently pressed by learned counsel for the appellant was that on 1-9-1976 the learned trial Court directed the pre-emptors to deposit "Zar-e-Punjam" by 20-11- 1976, but on pre-emptors' move, and without notice to the vendee-appellants varied that order, and allowed them further time to deposit half of the amount in cash, and to furnish security for the rest. It was submitted that pre-emptors' plaint was liable to rejection under section 22(4) of the Punjab Pre-emption Act, 1913 for non-compliance of the order. In support of his submission he relied on Niaz Muhammad Khan v. Mian Fazal Raqib PLD 1974 SC 134; Pir Bakhsh v. Budhoo PLD 1978 B J 86; Niaz All v. Ibrahim PLD 1976 Lah, 1057; Ghulam Nabi etc. v. Ghulam Sarwar and others 1984 CLC 1254 and Chiragh and 4 others v. Nizam Din and 4 others PLD 1985 Lah.
101.
9. Learned counsel for the respondents, on the other hand stated, that the respondents before the expiry of the time and framing of issues, in the suit, obtained permission and complied with the order, therefore, the penal provision of the Statute was not attracted. It was further contended that 1/5th of the sale price, is required to be deposited to prevent frivolous and vexatious litigation. In the instant case, the suit was genuine and decreed in favour of the plaintiffs. The defendants-vendees did not challenge the order of variation in revision and allowed the time to lapse, until the decree had been passed against them. They are, therefore, precluded to agitate against the interim order, which otherwise lost its efficacy. It was asserted that the trial Court is competent to vary order of deposit even suo motu, without notice to the other party; provided that order is passed before issues are framed in the suit. He relied on Malik Hadayat Ullah and 2 others v. Murad All Khan PLD 1972 SC 69; Mst. Resham Jan v. Khan Nawab Khan and others PLD 1970 Azad J & K 66; Ch. Zulfigar Ali v. Mian Akhtar Islam and another PLD 1967 SC 418; Murad Ali Khan v. Mien Abdullah Shah and another PLD 1965 (P.W.) Pesh. 90 and Mehdi Khan v. Faqir Muhammad and 4 others PLD 1980 Lah.
110 in support of his submission.
' For determination of the point in issue section 22 of the Punjab Pre-emption Act, 1913, relevant to the extent is reproduced hereunder:- "22. Plaintiff may be called on to make deposit or to file security.--(1) 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.
(2)
(3) Every sum deposited or secured under subsection (1) or (2) shall be available for the discharge of costs.
(4) If the plaintiff fails within the time fixed by the Court or within such further time as the Court may allow to make the deposit or furnish the security mentioned in subsection (1) or (2), his plaint shall be rejected or his appeal dismissed as the case may be.
(5)
The perusal of clause (1) of section 22 shows that the object of an order passed under this clause is to guarantee the vendees against frivolous proceedings on the part of the possible pre-emptoRs, The deposit is a token of good faith. The Court is vested with power to extend time to order deposit, of 'Zar-e-Punjam' or to furnish security, solely for the satisfaction of the Court, but that order can validly be passed only before issues are struck in the suit. Such an order can be passed on sufficient reason disclosed by the plaintiff to satisfy the judicial conscience of the Judge. In our view, the requirement of issuing notice to the opposite side depends upon the circumstances of each case.
' In the instant case, the learned trial Judge in his order dated 17-12-1976 took judicial notice of the established fact that due to calamity of floods and rains the cotton crop of the area had been seriously damaged. He, therefore, modified his earlier order before framing issues in the suit, which was complied with by the plaintiffs. The appellants did not challenge that order at the opportune time in revision or otherwise, and allowed the time to lapse until, the respondents' suit had been decreed which manifested that the pre-emption suit was not frivolous and the order passed by the learned trial Court under section G 22(1) of the Punjab Pre-emption Act, 1913 to safeguard the interest of the vendees-appellants lost its efficacy by lapse of time. The discretion exercised by the trial Judge in modifying the order, in our estimation, was neither arbitrary nor fanciful and stood test of the time when followed by decree in favour of the plaintiffs.
' Reverting now to the case law cited by learned counsel for the appellants; we take up first Niaz Muhammad Khan's case; wherein an observation was made to the effect; "The time be extended by an express order made after application of the mind to the circumstances necessitating extension. The vendee has clearly a right to be heard before extension is granted."
' It will be seen that in this case, there was no express order extending time for furnishing security and the plaintiffs furnished security after the specified time which was mechanically attested by the trial Court. Secondly; the order validating the extension was passed after the issues were framed. Thirdly, the order was challenged in revision before the suit was decreed. The observation, that notice to vendee was necessary before extension was granted to the pre-emptor for furnishing security, therefore, was made on distinguishable facts of the case. The mere fact, that extension in time was validated after issues were framed in the suit, was sufficient to entitle the vendee to be heard; because law does not envisage extension of time or variation in order after the issues are framed in the suit. In the case in hand, the learned trial Judge passed order extending time with full application of conscious mind and before the issues were framed in that suit.
' The learned Single Judges in Ghulam Nabi's case and Riaz Ahmad Khan's case in exercise of their revisional jurisdiction under section 115, C.P.C. Relied on the observation of the Supreme Court made in Niaz Ahmad's case and held that notice to the vendee was necessary before extension of time was granted under section 22(1) of the Punjab Pre-emption Act, 1913.
' Chiragh Din etc. v. Nizam Din etc. PLD 1985 Lah. 101 cited by counsel for the appellants, is also distinguishable inasmuch as that the plaintiffs failed to comply with the order under section 22(1) of the Punjab Pre-emption Act and their plaint was rejected. In the instant case the plaintiffs complied with the order and their suit was decreed.
' In Niaz Ali's case, the extension of time sought on the ground that plaintiff remained pro-occupied in election to National Assembly was not considered sufficient to extend time In his favour whose suit was based on predatory right us in the instant case, we have held that the extension of time was granted by the learned trial Judge in exercise of his judicial discretion.
It is noteworthy that the previous concept that pre-emptor had only an artificial or predatory right has undergone a change. It is considered a right as much enforceable as any other right. In Siddique Khan and others v. Abdul Shakur Khan and another PLD 1984 S'C 289 Supreme Court at pp. 313 and 314 has observed:- "It may be observed that the reason for applying such strict rule of interpretation in some cases of pre-emption so as to have recourse to section 3 of Limitation Act instead of prior application of Order VII, rule 11(b) and (c) or for that matter sections 148 and 149, C.P.C. And section 28, of Court- fees Act, was the then prevailing notion that right of pre-emption was predatory. This view suffered considerable change in post-Partition period in Pakistan. One reason being that it was against Islamic jurisprudence, wherein this is a right as much enforceable as any other right further that it has a connection with the law of inheritance in Islam as was observed by Mahmood, J. In Gobind Dayal v. Inayatullah I L R 7 All. 775 at p. 782 as follows: - "Upon the present occasion it is unnecessary to consider whether "gift" can properly be described as a "religious usage or institution" within the meaning of section 24, I am here concerned only with the question whether pre-emption can be so described. My own opinion is that it can, and although I cannot add much to the reasons given by Spankie, J. I may observe that preemption is closely connected with the Muhammadan Law of inheritance. That law was founded by the Prophet upon republican principles, at a time when the modern democratic conception of equality and division of property was unknown even in the most advanced countries of Europe".
This Court has also adopted the rule that a pre-emptor cannot be disallowed a relief or prayer on account of any such like notion. See Allah Ditta v. Muhammad All PLD 1972 SC 59 and Hadayat Ullah v. Murad Ali Khan PLD 1972 SC 69. Similarly, the approach in this behalf in a recent case Jan Muhammad v. Shukeruddin, 1980 CLC 186 is to the same effect. Thus, it would be no more lawful to deprive a plaintiff or appellant of any relief simply because it happens to be a pre-emption matter.
The law as it is, has to be applied without any such consideration. Otherwise it would, besides other consequences, also negate the relevant (Article 31) principle of policy contained in the Constitution, which is not permissible."
In Malik Hadayatullah's case, it was observed by the Supreme Court that the trial Court is fully competent to extend the time in directing deposit 'Zar-e-Punjam' either on the application (oral or written) by a party or even suo moto where justice so required. The discretion exercised in proper manner in granting the extension was considered not liable to interference.
' In Mehdi Khan's case a Division Bench of this Court also observed that purpose of law and administration of justice is to determine controversies on merits and not to use rules of procedure for thwarting rights of citizens.
Respectfully relying on the rule enunciated by the Supreme Court in Siddique Khan's case, to the effect, that pre-emptor's right is an enforceable right like any other right, and in Imtiaz Ahmad v.
Ghulam Ali PLD 1963 SC 382, that the place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. We hold that interim order of the learned trial Court in varying the order for deposit of Zar-e-Punjam passed in judicial exercise of his discretion and in the circumstances No,7 are,' therefor, maintained.
' Learned counsel, did not press rest of the issues, because the same were not contested between the parties in the trial Court.
10. In the result this appeal is partly allowed to the extent, that respondents shall deposit Rs, 5,000 only in addition to the decrial amount already deposited by them, on or before 2nd September, 1985 failing which their suit shall stand dismissed. There shall be no order as to costs.
11. The judgment ' in this case was announced in open Court on 22-5-1985, the reasons, therefore, have been recorded today, the 2nd June, 1985.