Musa Khan and others were owners of 870/2,160 shares in land measur--ing 22 Kanals 17 Marlas, represented by Khasra -No. 714, situated in village Sheikhchur, Tehsil Haripur, District Abbottabad.
They sold this land to Munawar Khan through a registered sale-deed No. 914 dated 26-10-1981 for an ostensible amount of Rs. 2,15,000 which amount was paid by the vendee to the vendors before the Sub-Registrar. Muhammad Akbar Khan and Muhammad Yousaf Khan pre-empted the sale through Suit No. .321/1 which was filed in Court on 17-10-1982. On the same day the learned trial Judge while directing that the suit be registered also directed the plaintiffs to deposit in Court Rs.
2,15,000 as pre-emption money before the next date of hearing The next date fixed in the case was 18-11-1982. On this date when the suit was called for hearing the attorney of the plaintiffs along with.
Counsel appeared in Court but no one appeared on behalf of the defendant and the summons- of defendant sent through registered post out of country was found not returned. It was also found that the plaintiffs had not deposited the pre-emption money which, according to the first order dated 17-10-1982, they had to deposit before this date. On the same day, that is to say on 18-11-1982, the attorney of the plaintiffs made to the Court an application that he be permitted to deposit in Court the pre--emption money on behalf of the plaintiffs. The reasons mentioned therein for not depositing the same before that date were (1) the death of sister of the attorney, (2) his own illness,
(3) late receipt of money (draft) from Eng--land and (4) continuous rain for a few days which made non-available the means of transport. The learned trial Judge, by order dated 18-11-1982, allowed the attorney of the plaintiffs to deposit the pre-emption money in Court, which deposit was then made. Since this order was passed by the learned trial Judge after the expiry of the time limit allowed to the plaintiffs for making such deposit and in absence of the defendant, it was made conditional and subject to objections that may be raised by the other side (defendant). It appears from the order sheet that after this order was signed by the learned trial Judge, the attorney of defendant along with his counsel appeared in Court and the Court directed him to file on the date already fixed the written statement as well as reply to the application of the plaintiffs for extension of time for the deposit of pre-emption money. Reply on behalf of the defendant to the said application was filed, wherein it was alleged that the allegations contained in the application submitted by the attorney of the plaintiffs were incorrect and that the default being wilful, the plaint merited to be rejected. After the parties produced evidence for and against each other's claim, the learned trial Judge, by order dated 14-1-1984, finding that no sufficient cause in support of application for extension of time had been shown, dismissed the prayer for extensions and consequently, rejected the plaint for want of deposit of pre-emption money within the time fixed by the Court.
2. This order was challenged in appeal, but with no success. Hence this revision petition.
3. Mr. Mushtaq Ali Tabirkheli, Advocate, appearing on behalf of the petitioners, and Mr. Bashir Ahmed, Advocate, appearing for the respon--dents, have been heard and the record of the case gone through with their assistance.
4. The first contention raised by- the learned counsel for the petitioners is that in this case the learned trial Judge had on 18-11-1982, while allowing the application moved on behalf of the petitioners seeking permission to deposit the pre-emption money, directed that such deposit be made, which was actually made on that date, and that in presence of that order, which was passed after considering the grounds mentioned in the petition made for the purpose, the matter having attained finality, could not be reopened, by the successor-Judge, while ultimately dismissed the petition made by the attorney of the petitioner and rejected that plaint for want of non-deposit of pre-emption money in time. This argument was also raised before the learned lower appellate Judge but was repelled by him on the ground that the order made by the learned trial Judge on 18-11-1982 allowing the deposit of pre-emption money was subject to objections by the defendant in whose absence it had been made. The learned lower appellate Judge thought that the said order had not attained finality and the matter could be reopened by the learned trial Judge who was ultimately called upon to finally dispose of the said petition made on behalf of the petitioners in the light of the objections raised by the opposite side. The finding of the learned lower appellate Judge on this point, for the reasons recorded by him, is correct and cannot be taken exception to. For the same reasons, which I need not repeat, I would also repel this argument of the learned counsel for the petitioners.
5. The next contention raised by the learned counsel for the petitioners is that subsection (4) of section 23 of the N.-W. F. P. Pre--emption Act empowers the Court to extend, on request of the pre- emptor, time for making deposit of the pre-emption money in Court and that in this case and for the reasons mentioned in the application submitted by the attorney of the preemptors the learned trial Judge, and on his failure the learned appellate Judge, should have condoned one .Lay's delay and accepted the deposit already made and should not have rejected the plaint.
In this connection the learned counsel for the petitioners referred me to "the evidence produced by the parties before the learned trial Judge in order to contend that in support .Of the allegations made in the petition for extension of time sufficient evidence had been led which went unrebutted and that in the light of the same both the learned Courts below fell into error by holding that sufficient grounds were not made out for allowing such request made on behalf of the preemptors.
The learned counsel further contends that in his order, impugned herein, the learned lower appellate Judge did not at all refer to the evidence produced by the parties which showed that the finding reached by him was without application of mind and, on this ground, merited to be set aside. He also contends that the deposit of the pre-emption money had already been made, though late by one day, and it was still in deposit and that the mere technicalities may not be allowed to defeat the substantial justice which is required to be done by deciding the case on merits. In support of his arguments the learned counsel relied on 1983 CLC 2163, PLD 1984 Posh: 150, PLD 1980 Lah. 110 and PLD 1975 SC 678.
6. The learned counsel representing the respondent contends that the petitioners made a wilful default in not depositing the pre-emption money in time thereby disobeying the order dated 17-12- 1982 made by the learned trial Judge, that the reasons mentioned in the petition for the extension of time for making deposit were neither convincing nor sufficient as bold by the learned two Courts below and that the concurrent finding so reached by the learned Courts below on questions of fact cannot be interfered with especially when no instance of misreading or eon-reading of evidence by the learned Courts below could be pointed out. The learned counsel supports his arguments with the authorities reported as PLD 1974 S' C 134, PLD 1971 Pesh: 170 and PLD 1985 Pesh. 127.
7. It is undeniable that in this case pre-emption money had not been deposited in time. It is also undisputable that by this default a valuable right had accrued- to the defendant who could on that basis pray for the rejection of the plaint filed by the petitioners, as was done by him. The B extension in time could, therefore, be allowed by the Court-for sufficient reasons and not otherwise.
The attorney of the petitioners while appearing in Court .On 18-11-1982 made an application that he be allowed to make deposit of .The pre-emption money. In that petition he gave four grounds for seeking such permission. These, grounds have already been mentioned in the earlier portion of this judgment. In support of these grounds the attorney of the petitioners examined himself and two other witnesses, namely, Abdur Rehmah and Wazir Iqbal Shah. Against this evidence there was brought, on the record the solitary statement of the attorney of the defendant, .Who therein controverted the allegations made on behalf of the petitioners. This evidence was considered by the learned trial Judge who found it insufficient and not satisfying his judicial mind for allowing extension of one day for the deposit of pre-emption money. The learned lower appellate Judge, without specifically discussing this evidence in his judgment, referred to it in the following terms "The evidence recorded in this connection by the learned trial Court and the part of which has been referred in the impugned judgment would show that pre-emptor's (pre-emptors') conduct does not suggest that he was prompt and active in honouring the order of the Court rather non- compliance of order without sufficient and reasonable cause would prove his mala fide. I, therefore, hold that pre-emptor has failed to comply with the order of the Court without any sufficient and reasonable cause."
These observations would clearly indicate that the evidence recorded in the case was present in the mind of the learned lower appellate Judge when he was recording his finding on this point and it cannot, therefore, be assailed on the ground of non-reading or misreading of evidence when such allegation was made in general without pointing out any specific instance of such misreading or non-reading of the evidence by the learned two Courts below. That being so, it could at the most be urged that it was a case of erroneous decision made by the learned Courts below on the evidence on which this Court may come to a different conclusion. This ground alone is not enough to permit this Court, while sitting in revisional jurisdiction, to interfere in the concurrent finding of fact reached by the learned two Courts below after appraisal of evidence and in the exercise of discretionary jurisdiction.
8. There are other facts which appear on the record and support the conclusion reached by the learned Courts below which have also persuaded me not to interfere in the concurrent finding reached by the learned two Courts below. One of such fact is that the petitioners, by the power of attorney available on the record, had appointed three persons, namely, Sultan Ba-hadur Khan, Mazhar Ali Khan and Sher Muhammad, to act as their attorneys in this case. The application for extension of time was C made by Sultan Bahadur Khan alone in which he mentioned his illness and the death of his sister which prevented him from making deposit of the pre-emption money in time. There is nothing on the record to show as to' what had prevented the other two attorneys, namely, Mazhar Ali Khan and Sher Muhammad, from complying with the order of the Court in the matter of depositing the pre-emption money in time. Further, it was not. Necessary for the attorney Sultan Bahadur to have personally appeared in Court to make that deposit. Same could have been made through any of the said two attorneys, or even through the learned counsel representing the petitioners in the trial Court. No explanation-is forth--coming on the record in that respect. The other fact is that the application made for the deposit of pre-emption money and also the affidavit were drafted at the instance of Sultan Bahadur on 17-11-1982 and appear to have been signed by him the same day, though presented in Court on 18-11-1982. There could be two reasons for late submission of application in the Court, one that the attorney of the petitioners might have reached Haripur late in the day on 17-I 1-1982 and could not, therefore, present the application to Court on that date, and the other that the whole amount for deposit might not have been by then procured (late receipt of money was one of the grounds mentioned in the same application). None of these two reasons was sufficient to claim from the Court extension of time for making deposit of the pre- emption money.
9. The authorities cited by the learned counsel for the petitioners in support of his arguments do not advance the case of the petitioners. In H. Raza Khan and another's case (1983 CLC 2163) revisional jurisdiction was exercised by the High Court in favour of the pre-emptor because while disallowing the prayer for deposit of the pre-emption money the trial Court had acted illegally and with material irregularity in exercise of its jurisdiction. In that case the pre-emption money was to be deposited up to the 2 November, 1974 on which date the plaint was in haste rejected for non- deposit of the pre-emption money, and the request made by the pre-emptor on the same date for allowing him to deposit the pre-emption money was refused. The pre-emptor was, therefore, not at fault in that case and in fact it was the trial Court which had illegally refused him opportunity to deposit the pre-emption money in time. This is not the case here, inasmuch as in this case the pre- emption money was tendered and deposited, subject to objection by the other side, after the expiry of the time limit fixed therefor, PLD 1984 Pesh. 150 is an authority for the policy of law which operates behind the order which a Court makes in a pre-emption case calling upon the pre- emptor to either make a cash deposit of the pre-emption money or furnish security therefor so that the purchaser is not unnecessarily involved in a vexatious and mala fide litigation by the pre- emptor. There can be no dispute with that principle, but it hardly is of any avail to the pre-emptors and has no direct bearing on the facts of this case in which the point involved is whether or not in the circumstances of the case the learned Courts below should have extended time for the deposit of pre-emption money. Mehdi Khan's case (PLD 1980 Lah.110) has distinguishing facts. In that case under a bona fide mistake the pre-emption money (Zar-e-panjum) was deposited on 27-5-1975, the date fixed for hearing of the case, though the challan form for the purpose was filed in the Court on 24-5-1975 and 25-5-1975 being a closed holiday, it was returned on 26-5-1975 to the pre- emptor for the needful and the deposit was deligently made on 27-5-1975. It was in those circumstances that the High Court exercising appellate jurisdiction had condoned one day's delay in the deposit. Of the pre-emption money by substituting its view for the view taken by the trial Court. In this case, however, both the learned trial Judge and the learned appellate Judge have disallowed the extension sought by the pre-emptors upon being satisfied that no sufficient ground existed for allowing such extension. The sufficiency of grounds was a question of fact of which the learned lower appellate Court was the final Judge. The cited case, therefore, cannot be an authority where the jurisdiction of the revisional Court is being invoked for the purpose PLD 1975 SC 678, no doubt, lays down the law that procedural and legal formalities and technicalities, unless offering insur--mountable hurdles, should not be allowed to defeat the ends of justice, but thisnd principle is hardly attracted to this case because the law on the subject (section 23 of the N.-W. F. P.
Pre-emption Act) is mandatory in nature and the failure on the part of the pre-emptors to comply with the order of the Court in the relevant context created a valuable right in the opposite party of asking the Court to reject the plaint, of which it could have been deprived only on strong and sufficient grounds, which being questions of fact were to be finally determined at the appellate stage.
10. For the foregoing reasons, -and since no jurisdictional error, illegality or material irregularity going to the root of the case was committed by the learned Courts below, this revision petition is without merit and is hereby dismissed with costs.