' The facts giving rise to this F.A.O. And F.A.O. No,92 of 1976, which will also be disposed of by this judgment, may be briefly stated as under.
' On 14-3-1968 Abdul Karim respondent instituted a suit for possession through pre-emption of land measuring 21 Kanala 13 Marlas situated in village Ghumanwala, Tehsil and District Gujranwala against the appellants, who had purchased the aforementioned land by means of registered sale- deed, dated 14-3-1962 for Rs,4,000 claiming superior right of pre-emption on the ground that he was owner in the Patti in which the suit land was situated. On 14-9-1962 Abdul Karim respondent had filed a similar suit against Muhammad Sadiq and Muhammad Aslam appellants in F.A.O.
No,92/76 to pre-empt the sale of land measuring 191 Kanals 5 Merles purchased by the appellants by means of registered sale-deed, dated 14-9-1962 for Rs,28,656 on the ground that he had a preferential right to purchase the land on account of being an owner of the estate in which the land was situated. In both the suits Abdul Karim respondent deposited Zar-e--Panjum in compliance with the order of the Court. The suits were contested by the vendees and a preliminary objections was raised that the sales in question were not pre-emptible, as the subject-matter of the sales was evacuee land. The learned trial Court framed preliminary issue in the two suits for the disposal of the above objection. After hearing the parties' counsel and relying on the judgment of the High Court of West Pakistan in S.A. No,25 of 1962 ' Muhammad Hanif v. Jiwa Khan, delivered on 12-3-1962, the learned trial Court accepted the vendees' plea that the sales in question were not pre-emptible and accordingly dismissed the suit of Abdul Karim respondent vide judgment, dated 21-10-1963.
' Having failed before the first appellate Court. Abdul Karim respondent filed regular second appeals against the judgments and decrees of the trial Court and the first appellate Court, which were accepted on 25-4-1974 and the cases were remanded to the trial Court for decision on merits. During the pendency of the appeals in the High Court, Abdul Karim respondent on 22-3-1973 withdrew the Zar-e-Panjum amounting to Rs,800 deposited by him in the suit instituted against the present appeallants and the Zar-e-Panjum amounting to Rs,5,732 deposited by him in the suit against the appellants in F.A.O. No,91/76. However, after the remand of the case, he redeposited the aforementioned amounts in Court on 31-5-1974. When the appellants appeared in the trial Court in pursuance of notice issued to them after the remand of the case, they raised objection that the suits were liable to be dismissed under section 22(5) of the Punjab Pre-emption Act, 1913 (hereinafter referred to as the 'ACT') as the respondent had withdrawn the Zar-e-Panjum deposited by thim under the order of the Court. Abdul Karim respondent, on the other hand, pleaded that the provisions of section 22(5) were not applicable, because he had redeposited the Zar-e-Panjum in both the suits after the remand of the cases. The learned trial Court accepted the appellants' objection and dismissed the suits vide order, dated 8-7-1974. On appeal by Abdul Karim respondent, the aforementioned orders were set aside by the learned District Judge on 9-3-1976 and the cases were remanded to the trial Court for disposal on merits. The appellants feeling aggrieved by the order of the learned District Judge, have filed appeals in this Court.
2. Learned counsel for the appellant has submitted that after the withdrawal, of Zar-e-Panjum by the respondent Abdul Karim, the suit was liable to be dismissed under section 22(5)(a) of the Act.
The fact that the Zar-e-Panjum was withdrawn with the permission of the Court was immaterial as in view of the clear provisions of section 22(5)(a), the two suits were liable to be dismissed after the Zar-e-Panjum deposited by the plaintiff had been withdrawn. He has relied on Khair Din v. Hashmat and others 1974 Law Notes 735; Ismail and another v. Muhammad Asiam and others PLD 1980 Lah.
104; Prem Singh v. Lakha Singh and others AIR 1929 Lah. 387 and Pares Ram v. Dalpat Rai AIR 1920 Lah.
46.
3. In Khair Din v. Hashmat, the pre-emptor plaintiff had withdrawn the Zar-e-Panjum during the second appeal in the High Court and on an objection raised by the respondent, the appeal was dismissed by the Court in view of the provisions of section 22(5)(a) of the Act.
4. In Ismail v. Muhammad Aslam, the appellant had withdrawn the pre-emption money including the Zar-e-Panjum during the pendency of the appeal, but had redeposited the same before hearing of the appeal. On an objection raised by the respondent, the appeal was dismissed under section 22(5)(a) of the Act on account of withdrawal of the pre-emption money including Zar-e- Panjum.
5. In Paras Ram v. Dalpat Rai, the alternative claim for pre-emption of the appellant was rejected in view of the provisions of section 22(5)(a), as it was found that the Zar-e-Panjum deposited under section 22 of the Act had been withdrawn by him after the dismissal of the suit.
6. In Prem Singh v. Lakha Singh, also the plaintiff-pre-emptor had withdrawn the Zar-e-Panjum after the dismissal of his suit, but had redeposited before hearing of the appeal. The appellate Court on being appraised of the facts, dismissed the appeal under section 22(5)(a) of the Act.
7. Learned counsel for Abdul Karim respondent, on the other hand, has supported the impugned order passed by the learned District Judge, as according to him, withdrawal of the Zar-e-Panjum by Abdul Karim respondent, after the dismissal of his suit did not attract the provisions of section 22(5)(a) of the Act. On redeposit of the Zar-e-Panjum under the order of the Court, the intent and object of the provisions of section 22 of the Act were fully achieved, as the said provisions were meant only to safeguard the vendee against frivolous and mala fide litigation. In support of his above submission, he has relied on Sanwal Das v. Jaigo Mal AIR 1924 Lah. 68; Mst. Bibi Aisha v.
Shadi Khan AIR 1935 Pesh. 143; Mst. Resham Jan v. Khan Nawab Khan and others PLD 1970 Azad J & K 66 and Mst. Sakina Begum v. Mst. Surat Bibi 1981 CLC 398.
8. In Sanwal Das v. Jaigo Mal, the pre-emptors' suit was decreed and an appeal was filed by the vendee. During the pendency of the appeal, the pre-emptor withdrew the pre-emption money which also included the Zar-e-Panjum. It was contended by the vendee that the pre-emptor's suit was liable to be dismissed in view of the withdrawal of the Zar-e-Panjum as provided in section 22(5) of the Act. The Court, however, did not accept the vendee's above contention, as it was held that the aforementioned provisions of law were not applicable, because the appeal had been filed by the vendee and the Zar-e-Panjum had not been deposited by the pre-emptor under the order of the appellate Court.
9. In Mst. Bibi Aisha v. Shandi Khan, also the matter for consideration was whether the appellant was debarred from pursuing the appeal, as he had withdrawn the pre-emption money. It was held by the Court that the appellant's right to pursue the appeal was not affected by the withdrawal of the pre-emption money. It was observed: - "As we read clause 5(a) of section 22, there is no legal objection to a plaintiff withdrawing his deposit even without the leave of the appellate Courts, and yet prosecuting his appeal. It would not be fair that he should be so debarred, for in some provinces several years may elapse before an appeal is decided and the unsuccessful pre-emptor, therefore, loses interest on his money for all the years during which the money is held in Court. Nor, if he succeeds on appeal, has he any legal claim to recover damages from any of the parties. On the other hand, it is open to the appellate Court, if objection to the withdrawal is taken by the vendee, to refuse to continue .The hearing of the appeal until the pre-emption money has been redeposited, and this was certainly one of the objects contemplated in clause (2) of section 22, which gives the appellate Court power to order a deposit. This in fact is the course which should have been followed in such case by an appellate Court in order to protect the vendee against the frivolous appeals."
10. Resham Jan v. Khan Nawab Khan, is not a direct authority on the issue under consideration, as the controversy in that case was whether the trial Court could modify its earlier order requiring the pre-emptor to deposit 1/5th of the probable value-of the suit property in cash and allow him to furnish security for payment of the said amount. Explaining the intent and purpose of the provisions requiring the pre-emptor to deposit the Zar-e-Panjum or furnish security, it was held that the Court was empowered to very its order and could allow the pre-emptor to furnish security instead of depositing cash as ordered earlier. In Mat. Sakina Bibi v. Surat Bibi, the objection regarding withdrawal of the Zar-e-Panjum by the pre-emptor was raised during the hearing of the appeal by the first appellate Court, filed by the pre-emptor and it was contended that the pre-emptor's appeal was liable to be dismissed. The objection was, however, repelled and the pre-emptor's appeal was heard and disposed of on merits. , The above objection was again raised by the vendee appellant in the second appeal filed in the High Court. Interpreting the provisions of subsection (2) of section 22 of the Act, it was observed:- " It seems to me, that there would be no occasion for the appellate Court to exercise powers under subsection (2) requiring the pre-emptor to deposit "one-fifth" in the Court, except when the sum deposited, in the trial Court, on the final decision of the suit, is withdrawn and later on an appeal preferred by him. After all where is the bar for a plaintiff to withdraw "one-fifth" on the dismissal of his suit."
11. It may be noticed that in all the cases cited by learned counsel for the parties, the applicability of the provisions of section 22(5)(a) of the Act was considered at the appellate stage. In none of these cases, the effect of withdrawal of the Zar-e-Panjum by the pre-emptor during the trial of the suit was considered by the Court. For proper appreciation of the question raised in these appeals, it is necessary to reproduce section 22 of the Act:- "(1) Plaintiff may be called on to make deposit or to file security.--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) In any appeal the appellate Court may at any time exercise the powers conferred on a Court under subsection (1).
(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 funish the security mentioned in subsection (1) or (2), his plaint shall be rejected or his appeal dismissed, as the case may be.
(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.
(6) The estimate of the probable value made for the purpose of subsection (1) shall not affect any decision subsequently, come to as to what is the market-value of the land or property.
12. Undoubtedly, the aforementioned provisions of S.22 are intended to protect the vendees against vexatious and mala fide suits instituted by possible pre-emptors. The deposit of 1/5th of the probable value of the property in suit or furnishing of security to the satisfactory of the Court for the payment of sum not exceeding such probable value by the pre-emptor is a token of good faith. For achieving the purpose behind these provisions, the Court, before whom a claim of pre-emption is brought by the pre-emptor, has been empowered under subsection (1) to call upon the pre- emptor, at the initial stage of the proceedings, to deposit 1/5th probable value of the property in respect of which claim for pre-emption has been brought or to furnish security in lieu thereof. It may be noticed that the above direction can be given by the Court at or at any time before the settlement of issues. The Court has, however, been empowered to extend the time within which the pre-emptor was ordered to make the deposit or to furnish the security. In case of non-compliance with the order of the Court, the pre-emptor's plaint is liable to be rejected under subsection (4). The appellate Court too under subsection (2) can exercise the power conferred on the Court of first instance under subsection (1). Unlike the Court o first instance, the appellate Court can direct the pre-emptor to deposit 1/5th of the probable value of the property in the suit or to furnish security in lieu thereof at any time. The appellate Court has also been empowered to extend the time within which the pre-emptor was directed to comply with its order. In the event of non-compliance of the order of the appellate Court, the appeal filed by the pre-emptor is liable t be dismissed under subsection (4). In case the pre-emptor withdraws the amount deposited by him in compliance with the order of the Court of first instance or the appellate Court, his suit or appeal, as the case may be, is liable to be dismissed under subsection (5). It may be noticed that the provisions of subsection (5) are mandatory and the consequences which follow the withdrawal of the amount of 1/5th of the probable value of the property in suit deposited by the pre-emptor cannot be avoided by allowing him to redeposit the amount withdrawn by him. There is no doubt that under subsection (2), the appellate Court may at any time exercise the power conferred on the Court of first instance under subsection (1), but this power is not available where the Zar-e-Panjum, deposited earlier in pursuance of the order of the Court under subsection (1) has been withdrawn by the pre-emptor, because the power of the appellate Court under subsection (2) is the same as conferred on the Court of first instance under subsection (1) with only this difference that the order to deposit 1/5th probable value of the property in suit or to funish security in lieu thereof can be made by the appellate Court at any time. The Court of first instance has no jurisdiction to order redeposit of the Zar-e-Panjum after the same had been withdrawn by the pre-emptor. If the amount of Zar-ePanjum was withdrawn by the pre-emptor during the pendency of the suit, the Court is bound to dismiss his suit in view of the provisions of subsection (5)(a). Similarly, if the Zar- e-Panjum is withdrawn by the pre-emptor appellant during the pendency of appeal, his appeal is liable to be dismissed under subsection (5)(a) of section 22 of the Act. The provisions of subsection
(2) cannot be availed of by the pre-emptor to avoid dismissal of his appeal because the aforementioned provisions do not empower the appellate Court to allow redeposit of the Zar- ePanjum, as its powers are co-extensive with the Court of first instance and the latter does not possess any power to allow the pre-emptor to redeposit the Zar-e-Panjum withdrawn by him.
Subsection (2) of section 22 empowers the appellate Court to order deposit of the Zar-e-Panjum or furnish security in lieu thereof where the Court of first instance has failed to exercise or has improperly exercised its power under subsection (1) or has refused to extend the time within which its order under subsection (1) was to be complied with by the pre-emptor, but the appellate Court cannot order the redeposit of the Zar-e-Panjum withdrawn by the pre-emptor either during the pendency of his suit or after its disposal because any such order passed by the appellate Court would not only defeat the legislative intent as reflected by subsection (3) but also be inconsistent with the provisions of subsection (5)(a). Subsection (2) of section 22 of the Act is to be interpreted keeping in view the intention of the Legislature as the cardinal rule for the construction of the Acts of Legislature is that they should be construed according to the intention of the Legislature.
According to Maxwell on Interpretation of Statute at page 28:- "The rule of construction is to intend the Legislature to have meant what they have actually expressed. The object of all interpretation is to discover the intention of parliament."
' Donaldson, J. In Corocraft v. Panam (1969) 1 Q B 616 at page 638 remaked: - "The duty of the Courts is to ascertain and give effect to the will of parliament as expressed in its enactments."
As noticed earlier, the intention of the Legislature and the purpose behind the provisions of section 22 of the Act is to provide safeguard to the vendee against frivolous litigation by the possible pre- emptor. The object can be achieved only when the amount deposited or secured under subsection
(1) or (2) of section 22 remains available for the discharge of the costs of the vendee. The moment the amount deposited or secured by the pre-emptor, is not available, his suit or appeal, as the case may be, is liable to be dismissed. Where a pre-emptor, after the dismissal of the suit, withdraws the amount of the Zar-e-Panjum deposited by him under subsection (1) or subsection (2), his further remedy by way of appeal would be subject to the provisions of subsection (5)(a) because after the filing of the appeal, if an objection is raised by the vendee that the appellant has withdrawn the Zar-e-Panjum, hi appeal shall be dismissed under subsection (5)(a). As noticed above, the appellate Court would not be legally competent to allow the pre-empto to redeposit the Zar-e-Panjum withdrawn by him. It would also do not open to the pre-emptor'to plead that the amount withdrawn by him had not been deposited under the order of the appellate Court as such pleawould be contrary to the provisions of subsection (5)(a). The word 'so in subsection (5)(a) refers to the amount deposited under subsection (1) or subsection (2). If the word 'so' in the case of appeal is to be construed as referring to the amount deposited under subsection (2) and in the case of suit as referring to the deposit
13. It may be stated with utmost respect that the interpretation o the word 'so' in subsection (5)(a) of section 22 made in Sanwal Das v. Jaigo Mal AIR 1924 Lah. 68 was not in consonance with the intention of the Legislature. The view taken by the Court that the appellate Court can dismiss the appeal only where the pre-emptor has withdrawn the Zar-e-Panjum deposited by him in compliance with the order of th appellate Court cannot be accepted without doing injustice to the clear and plain language of subsection (5)(a). Such intention being not only contrary to the plain words used in subsection (5)(a) would also defeat the legislative intent because the- pre-emptor appellant's appeal would not be affected by the withdrawal of the amount deposited by him in compliance with the order of the Court of first instance under subsection C (1) and the provisions of subsection (5)(a) would be rendered nugatory in such an event. The proper interpretation of the provisions of subsection (5)(a) which would also be in consonance with the legislative intent, would be that the pre-emptor must lose his suit or appeal, the moment he withdraws the amount deposited by him, whether in compliance with the order of the Court of first instance under subsection (1) or in compliance with the appellate Court's order under subsection (2). It is immaterial whether the amount deposited by him was withdrawn during the pendency of the suit or after its dismissal or during the pendency of the appeal whether preferred by him or the vendee.
The objection raised by the appellant in Sanwal Das v. Jaigo Mal that the respondent pre-emptor's suit was liable to be dismissed as he had withdrawn the pre-emption money, which also included the Zar-e-Panjum was legally tenable in view Of< the provisions of subsection (5)(a) of section 22 because after the withdrawal of the pre-emption money by the pre-emptor, nothing was left to meet the requirement of subsection (3) of section 22. The appellate Court, while seized of the vendee's appeal, was legally competent to pass order of dismisal of the pre-emptor's suit under subsection (5)(a).
14. It is true that in subsection (5)(a), it is not provided that the appellate Court should accept the vendee's appeal if the pre-emptor has withdrawn the Zar-e-Panjum or the pre-emption money, a reason given in Abdul Ghafoor and others v. Mst. Iqbal Begum and others t repel the vendee appellant's contention that the respondent pre-emptor's suit was liable to be dismissed in view of the withdrawal of the pre-emption money by him during the pendency of appeal, but the appellate Court is legally competent to dismiss the pre-emption suit in the above event and it would amount to the acceptance of the vendee appellant's appeal.
15. It may also be stated that the withdrawal of pre-emption money or the Zar-e-Panjum by the pre-emptor with or without the permission of the Court is immaterial, because normally no amount is deposited or withdrawn in a pre-emption suit without the order of the Court and the withdrawal of Zar-e-Panjum or pre-emption money by the pre-emptor under the order of the Court would not avoid the legal consequences which are to follow such withdrawal as provided in section 22(5)(a) of the Act.
The justification given in the case of Mst. Bibi Aisha v. Shadi Khan AIR. 1935 Pesh. 143 for the withdrawal of the deposit made by the pre-emptor that in some Provinces several years may elapse before an appeal is decided and the unsuccessful pre-emptor, therefore, loses interest in his money for all the years during which the money is held in Court, proceeds on the assumption that the appellate Court can require the pre-emptor to redeposit the amount withdrawn, if an objection is taken, in exercise of its power under section 22 (2), which, as noticed above, is not correct. The appellate Court has the power to order the pre-emptor to deposit 1/5th of the probable value of the property in suit or furnish security in lieu thereof just as the Court of first instance has such power, but neither the Court of first instance nor the appellate Court has any power to order redeposit of the amount withdrawn by the pre-emptar, because any such order would infringe the provisions of section 22(5)(a). The decision in Sakina Begum v. Surat Bibi 1981 CLC 398 is based on the interpretation of subsection (2) of section 22 of the Act that the appellate Court has jurisdiction to order the redeposit of the amount withdrawn by the pre-emptor before filing the appeal. With utmost respect, it is stated that the power conferred on the appellate Court under subsection (2) is, the same as has been conferred on the Court of first instance under subsection (1) except that the appellate Court may exercise that power at any time while the Court of first instance can exercise the power only at or at any time before the settlement of issues. The appellate Court has no jurisdiction to order redeposit of the amount of the Zar-e-Panjum withdrawn by the pre-emptor after the dismissal of his suit. Any such order passed by the appellate Court after the appeal has been filed, would be inconsistent with the provisions of section 22(5)(a) of the Act. It may also be added that unlike the Court of first instance, it is not obligatory for the appellate Court to order the deposit of Zar-e-Panjum by the pre-emptor- appellant at the time of filing of the appeal, because under subsection (2), the appellate Court may exercise the power conferred on the Court of first instance under subsection (1).
16. In view of the legal position noticed above, the cases cited by the learned counsel for the respondents in support of his contention that the withdrawal of the Zar-e-Panjum by Abdul Karim respondent after the dismissal of his suits was of no consequence particularly when the amount withdrawn had been redeposited by him under the order of the Court, do not advance the respondents' case, because the learned trial Court had no jurisdiction to allow Abdul Karim respondent to redeposit the amount of the Zar-e-Panjum withdrawn by him earlier. In a pre- emption suit, the Court of first instance has jurisdiction t order the plaintiff-pre-emptor to deposit the Zar-e-Panjum or furnish security in lieu thereof only 'at or at any stage before the settlement of issues'. After the suit has crossed that stage, the Court of first instance has no jurisdiction to pass order either calling upon the plaintiff-pre-emptor or allowing him to deposit the Zar-e-Panjum or furnish security in lieu thereof. It is only where the security already furnished by the pre-emptor becomes void or insufficient, the Court of first instance has been empowered to order the plaintiff- pre-emptor to ry furnish fresh security or increase the security, as the case may be, within a time to be fixed by the Court. In the case under consideration, Abdul Karim respondent was permitted to redeposit the amounts of Zar-e-Panjum on 31-5-1974 when the suits had already passed the stage of settlement of issues, because the trial Court had framed preliminary issue in the suit against the appellants in this appeal on 20-10-1963 and in the suit against the appellants in F.A.O. No, 91/76 on 15-10-1963. The order of redeposit of the Zar-e-Panjum passed by the Court on 31-5-1974 under the circumstances was evidently without jurisdiction.
17. Now it is to be seen whether the learned trial Court could order the dismissal of the suits, because the amounts of the Zar-e-Panjum were Withdrawn by Abdul Karim after the suits had been dismissed. It may- be said that subsection (5)(a) of section 22 which empowers the Court to dismiss the pre-emptor's suit, if the amount deposited by him in compliance with the Court's order under subsection (1) is withdrawn by the pre-emptor during the pendency of the suit is attracted only when the amount is withdrawn during the pendency of the suit. There is no doubt that the power conferred on the trial Court under subsection (5)(a) of section 22 of the Act, .Can be exercised only when it is seized of the matter and the suit is pending before it, but this power is not exhausted with the dismissal of the suit, as the filing of the appeal against the order of dismissal is continuation of the proceedings and the stage in the suit itself. The, withdrawal of the Zar-e- Panjum by Abdul Karim respondent in the two pre-emption suits, though after the dismissal of the suit shall be deemed to be a withdrawal during the pendency of the suits. He should have kept in view the consequences of withdrawal of the Zar-e-Panjum during the pendency of his appeals, because in the event of acceptance of appeals, he could not save his suits from being dismissed under section 22 (5)(a) of the Act. No plea' could have justified the withdrawal of the Zar-e-Panjum earlier deposited by him in compliance with the Court's order under clause (1) of section 22 of the Act. The trial Court having once exercised its jurisdiction under subsection (1) of section 22 of the Ant, is not legally competent to order redeposits of the Zar-e-Panjum, even in cases where the Court itself had allowed withdrawal of the Zar-e-Panjum.
' In view of the legal and factual position, noticed above the impugned order passed by the learned District Judge setting aside the judgment and decrees of the trial Court, dismissing the suits of Abdul Karim respondent, is not legally sustainable. Consequently, the appeals against the impugned order of the learned District Judge passed on 9-3-1976 are accepted and the judgment and decrees of trial Court are restored and the suits filed by Abdul Karim respondent are dismissed. As somewhat difficult legal question was involved in these appeals the parties are left to bear their own costs.