' The appellant's suit for possession of pre-emption of land in dispute was dismissed by the learned trial Court. This decree was maintained in appeal by the first appellate Court. Hence this second appeal.
2. During the course of this appeal the appellant withdrew the Zar-e-Panjam which he had deposited in the lower Court. The respondents have now submitted a petition under section 22(5) of the Pre-emption Act for dismissal of the appeal. Section 22(5) provides as follows:- "22(5) (a) If any sum so deposited is withdrawn by the plaintiff the suit or appeal shall be dismissed.
(b) If any security so furnished for any cause becomes void or insufficient, the Court shall order the plaintiff to furnish fresh security or to increase the security as the case may be within a time to be fixed by the Court, and if the plaintiff fails to comply with such order, the suit or appeal shall be dismissed."
3. The learned counsel for the appellant contends that there are sound reasons for the withdrawal of the Zar-e-Panjam. He states that it quite possible that in view of the judgment of the High Court of West Pakistan in Babu All Muhammad v. Mahmood-ul-Hassan PLD 1968 Lah. 329 by which it was held that a pre-emption suit in regard to property in the compensation pool is not competent in a civil Court, the appellant might have withdrawn this amount. He, therefore, submitted on tee basis of Iftikhar Ali and others v. Thakar Singh and another 83 P.R. 1912, Muhammad Ramzan v.
Muhammad Khan and another 1972 SC MR 442 and Mst. Bibi Aisha v. Siadi Khan AIR 1935 Pesh. 143 that the appeal cannot be dismissed on this ground and the appellant should be furnished another opportunity to make the deposit.
I am not impressed by this argument. The first two authorities are listinguishable. They were not cases falling under section 22(5) o the Pre-emption Act. They were cases in which the vendees had withdrawn the pre-emption amount deposited by the pre-emptor. Mst. Bibi Aisha v. Shadi Khan AIR 1935 Pesh. 143 certainly helps the appellant but the view taken in this case is contrary to the one taken by the High Court, Lahore in Pretam Singh v. Lakha Singh and others AIR 1929 Lah.
387. It was held in this case that where money ordered to be disposited by the trial Court is withdrawn on dismissal of the suit the appeal should be dismissed although the appellate Court itself had not ordered such deposit. Reliance was placed upon this proposition not only upon the words of section 22(5) which are certainly mandatory in character but also on. Pares Ram v. Da1pat Rai 54 I.C.
268.
4. I may state that the Peshawar authority is based upon Sanawa Das v. Jaigo Mal AIR 1924 Lah. 68 but that case is clearly distinguishable since there the Zar-e-Panjam was withdrawn by the pre- emptor after his suit had been decreed in his favour and the appeal against the decree had been filed by the vendee. I, therefore, dismiss this appeal under section 22(5) of the Pre-emption Act with costs.