1. This is an application in revision under section 115 Civil Procedure Code by the vendee-defendant against the judgment and decree dated 9-1-1989 of Additional District Judge, Rawalpindi, affirming those of the trial Court dated 3--4-1986 whereby suit for possession by pre-emption in respect of the land in dispute was decreed in favour of the plaintiff-respondent.
2. Land in suit measuring 10 Kanals situate at mauza Barki Brahmnan, Tehsil Gujar Khan belonged to a non-Muslim; evacuee. In course of settlement operations, it was settled upon one Kala Khan, 4 displaced person from the State of Jammu and Kashmir. On 12-7-1979, Kala ]Khan agreed to sell the land in dispute to Sakhi Muhammad petitioner. As the terms of sale agreement were not fulfilled, Sakhi Mohammad sued Kala Khan for specific performance of the sale agreement. On 2- 4-1981, suit for specific performance was decreed to Sakhi Mohammad upon payment of Rs.16,000.
3. Rs.3,000 were already paid and as regards the balance of the sale price, plaintiff decree-holder was directed to deposit it within one month, failing which suit for specific performance was to stand dismissed with costs.
4. Munshi Khan as first paternal-cousin of Kala Khan vendor claimed pre--emption in respect of the above transaction and brought a suit for possession of the land against Sakhi Mohammad vendee in the Civil Court at Gujar Khan. Defendant contested the suit by pleading that the transaction was not pre---emptible; that rule of res judicata applied and the suit could not proceed, superior right of pre-emption asserted in the plaint was also controverted.
5. Suit proceeded to trial on the following issues:- (1)Whether the plaintiff has got superior right of pre-emption qua the defendant? OPD (2)Whether the plaintiff has no cause of action to file this suit? OPD (3) Whether the suit is barred by res judicata? O P D (4)Relief.
6. Upon examination of the records, the trial Court found for the plaintiff and decreed the suit to him upon payment of Rs.16,000 to be deposited in Court up til 5-5-1986, failing which suit was to stand dismissed with costs. Court held that relationship set up in the plaint was established and the plaintiff had preference; that the sale in pursuance to a decree pessed in the suit for specific performance was pre-emptible; that rejection of the plaint under section 22 (4) Punjab Pre-- emption Act 1913 for non-deposit of zar-e-panjum in time did not operate as res judicata barring a fresh pre-emption suit by the plaintiff on the existing cause of action.
7. Defendant filed an appeal. In course of its hearing, he applied for amendment to the written statement to take up further pleas to the effect that the suit was barred by limitation and that the sale in his favour was immune from pre-emption as he was an oustee affectee of Mangla Dam.
8. Defendant also sought permission for leading some additional evidence. Both the applications, one for amendment to the written statement and the other seeking permission for additional evidence in first appeal were vehemently opposed by the plaintiff --respondent. Mr. Farrukh Latif Additional District Judge who heard the appeal in the first instance gave permission for amendment to the written statement and after receiving the amended pleadings from the parties, settled two additional issues numbered as 2-A, 2-B. These read:- (2-A) Whether the suit is barred by time ? OPD (2-B) Whether the defendant is an oustee affectee of Mangla Dam, if so, the suit land is exempt from the operation of law of pre-emption? OPD As the required evidence for decision of these two issues did not exist on second, Additional District Judge remanded the case to the trial Court under Order XLI, rule 25 C.P.C. For taking additional evidence and recording of findings upon them. Upon receipt of the records from the trial Court, appeal was heard by another Additional District Judge who upon review and reconsideration of evidence, found no force in the appeal and dismissed it with costs on 9-1-1989. It is this decision of the Court below which is sought to be quashed in revision at the instance of the vendee-defendant.
9. Khawaja M. Yusuf Saraf, learned counsel for the petitioner argued that superior right of pre- emption asserted by the plaintiff was not established; that in absence of a proper sale-deed executed in pursuance to a decree passed in the suit for specific performance, transaction was not pre-emptible; that rejection of the plaint under section 22 (4) of Punjab Pre-emption Act in the earlier suit for pre-emption filed by the plaintiff amounted to a clear bar and prohibited filing of a fresh suit in respect of the same cause of action. In this behalf, learned counsel heavily pressed in aid principle of res judicata. Having regard to the records and true legal principles applicable thereto, contentions appear to be unsound and have no real merits. As for the first point relating to preferential right of pre--emption, it is sufficient to observe that it was not agitated before the learned Judge below. It is seen from the memorandum of appeal as also the impugned judgment passed in appeal that except for the exemption claimed on the ground of being a Mangla Dam affectee, no other point was urged or agitated before the learned Judge below. In the order passed m appeal, learned Judge specifically mentions that "no other point was urged". This being the position, a plea which was not taken and argued before the first appellate Court, shall be deemed to A have been clearly abandoned and cannot be permitted to be canvassed in civil revision. Even otherwise, there is sufficient evidence to show that pre-emptor was first cousin of the vendor. Case of the defendant rested on mere `want of knowledge'. As against this, plaintiff gave oral evidence and relied upon some documents which supported his case. True, shajra nasb was not filed but this circumstances is of no material avail to the defendant because there is no evidence that pedigree-table indicating inter se relationship of parties existed and was not produced.
10. Furthermore, it was not denied that both the vendor and the pre-emptor were refugees from the State of Jammu and Kashmir and in regard to them, no shajra nasbs existed in Pakistan. Therefore, finding recorded by the trial Court on question of relationship received enough support from the records and cannot be upset upon a mere ipse dixit of the learned counsel. It is clear to me that the defendant was satisfied with the correctness of the finding on issue relating to preferential right of pre-emption and it was for this reason that he did not question its correctness in first appeal.
11. This being the true state of affairs, it shall not be fair to reopen an issue properly and correctly concluded by the first Court. As for the second point, it was equally without force. Defendant did not assert in the written statement that no sale-deed was executed in execution of the decree passed in the suit for specific performance. Only objection taken was that as the land in suit was taken under the Court decree, suit for pre-emption did not lie. Learned counsel submitted that this being a pure question of law could be urged without bar of time even in the Court of last resort. I do not agree. Sakhi Mohammad defendant as DW. 1 unequivocally admitted that sale-deed was executed and registered under the authority of Court. Therefore, the factual assumption upon which legal argument was sought to be built had no foundations whatsoever. To the contrary, record belies the above assumption. Furthermore, it was not controverted that under the Court decree, vendor had paid the sale price 13 and the vendee was in possession of the land in suit. All the ingredients of a completed sale existed in the instant case. Nonetheless, in the factual background of the instant case, it is not necessary to examine the point as to whether in absence of a proper sale-deed executed and registered, a suit for pre-emption could lie on the strength of a mere decree passed in the suit for specific performance when sale price has been paid/deposited as also the transfer of possession has taken place. As for pre-emptibility of a sale taking place in execution of a decree passed in the suit for specific performance, there is a clear Full Bench authority of this Court in Nur Ahmad and others v. B. Muhammad Ibrahim and another PLD 1953 Lahore 470. This brings me to the last question as to what is the effect of an order rejecting the plaint under section 22 (4) of Punjab Pre-emption Act and whether, by its own force, it precludes the same plaintiff from instituting another suit for pre-emption upon the existing cause of action if period of limitation prescribed therefore had not run out by then. The point turns on interpretation of section 22 of Punjab Pre-emption Act 1913. It reads:- "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.
12. (2)In any appeal the Appellate Court may at any time exercise the powers conferred on a Court under subsection (1).
13. (3)Every sum deposited or secured under subsection (1) or (2) shall be available for the discharge of costs.
14. (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.
15. (5)(a) If any sum so deposited is withdrawn by the plaintiff, the suit or appeal shall be dismissed.
16. (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.
17. (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."
18. In accordance. With the clear language of law, Court is enjoined to make an order for deposit of one fifth of the probable value of land or property sought to be pre-empted or require the pre- emptor to give security of a sum not exceeding the probable value within a time to be fixed by it.
19. Like order can also be made by the appellate Court. If the plaintiff fails to carry out the order regarding deposit or furnishing of security, section 22 provides that his plaint shall be rejected and in case order was made in appeal and was not complied with, in that eventuality, appeal shall be dismissed. Subsection (5) provides that if sum deposited is withdrawn by the plaintiff, in that case, suit or appeal as the case may be shall be dismissed. Clause (b) of subsection (5) states that in case the security furnished for any cause becomes void or insufficient, the Court shall ask the plaintiff to furnish fresh security and in case of its insufficiency, require the plaintiff to increase the security as the case may be within a time to be fixed by it and if the plaintiff fails to comply with the order of the Court, his suit or appeal as the case may be, shall be dismissed. Section 22 provides different consequences in respect of different eventualities. At places, it says that in case of failing to comply with a particular order of the Court, his plaint shall be rejected and in regard to other provides that suit or appeal shall be dismissed. There is a marked difference between rejection of the plaint and dismissal of the suit or appeal as the case may be. So far as section 22 of the Act itself is concerned, it does not say anything as to the consequences flowing from the rejection of the plaint or dismissal of the suit and appeal. However, there are number of provisions in the Code of Civil Procedure 1908 dealing with rejection of the plaint, dismissal of the suit and appeal and also the consequences flowing there from. As for rejection of the plaint, Order VII rule 11 provides four instances which give power to the Court order rejection of the plaint. Rule 12 of Order VII casts a clear obligation upon the Court to record reasons for rejecting the plaint. Rule 13 states that rejection of the plaint upon the grounds stated in rule 11 of Order VII shall not, by its own force, preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action provided action is not barred by limitation. Effect of dismissal of the suit under Order IX, rules 2 and 3 is provided in rule 4 which gave two options to the plaintiff either, subject to law of limitation, bring a fresh suit or to apply to the Court for setting aside of the dismissal. However, where a suit is dismissed in default under Order IX, rule 8, succeeding rule 9 precludes the plaintiff from bringing a, fresh suit in respect of the same cause of action and confines the plaintiff to the sole remedy of making an application for restoration of the suit dismissed in default of appearance. As to the effect of withdrawal of the suit or abandonment of claim without permission of the Court, order XXIII, rule 1 (3) clearly prohibits the filing of afresh suit. Exceptions to the rules prohibiting filing of fresh suits in respect of the same subject-matter or cause of action are not relevant to the present enquiry. Order rejecting the plaint under section 22(4) of Punjab Pre-emption Act by fiction of law raised by section 2(2) of the Code of Civil Procedure is classed as a decree and is appealable under section 96 of the Code. In Ram Lal v. Roshan Lal and another AIR 1947 Lahore 302. It was held by this Court that "The order rejecting the plaint must necessarily be m pursuance of the provisions of the Code of Civil Procedure only. The definition of the decree includes all rejections of plaints either under the Code of Civil Procedure or otherwise and in the absence of any qualification that the rejection must be, to fall within the ambit of the definition, under the Code of Civil Procedure only, the Court would no be justified to add to the section when the Legislature has in its wisdom refrained from doing so. Section 22(4), Punjab Pre--emption Act provides for rejection of a plaint if the plaintiff has failed to furnish security or to deposit one-fifth of the amount in accordance with the orders of a Court and once it is rejected in conformity with the section, that rejection could have the same effect as the one ordered under the Code' (emphasis has been supplied by me). I would, therefore, hold that the rejection of the plaint under section 22 (4), Punjab Pre-emption Act is rejection within the meaning of the definition of the term "decree given in the Code of Civil Procedure and would be, therefore, appealable as a decree." Key note in the above judgment as to the legal effect of rejection of a plaint is that rejection would have the same effect as the one ordered under the Code. To me, it appears to be a correct statement of law and I respectfully agree with it. One has therefore, now to see as to what is the effect of the order rejecting the plaint as given in the Civil Procedure Code. As said above, rule 13 of Order VII clearly provides that rejection of the plaint shall not be a bar for the plaintiff to present a fresh plaint in respect of the same cause of action. In absence of any clear rule either in the procedural or substantive law, rule of res judicata which governs decision on merits only could not be applied to a mere rejection of the plaint under section 22(4) of Punjab Pre-emption Act debarring the plaintiff from instituting a fresh suit upon the same cause of action, of course, subject to the law of limitation. So far, I have been dealing with the point treating it as of first impression. But upon my own research, I have been able to lay my hands on a judgment from Peshawar High Court reported as Sharifullah v. Mumtaz and another PLD 1980 Pesh.87 which is clearly in point and materially assists the decision of the present case. Section 23(4) of North West Frontier Province Pre-emption Act, 1950, is in pari materia.
20. Section 22 of Punjab Pre-emption Act and- Section 23 of North-West Frontier Province Pre-emption Act 1950 are couched in identical language. While construing section 23(4) of the North-West Frontier Province Pre-emption Act 1950,a learned single Judge of High Court of Peshawar in identical circumstances found that the "effect of rejection of a plaint under clause (4) of section 23 would be the same as that under Order VII, rule 11 C.P.C. With the result that the plaintiff can subject to law of limitation, file a fresh plaint in respect of same cause of action. I am, therefore of the opinion that the order of rejection of the plaint dated 22-7-1978 did not preclude the plaintiff from presenting a fresh plaint". With respect I agree with the above statement of law. Learned counsel for the petitioner did not bring to my notice any decided case in which a contrary view was taken.
21. Pleas of waiver and estoppel were not set forth.
22. In conclusion, civil revision which is devoid of any force is dismissed summarily.