By this single order, I intend to dispose of Civil Revision Nos.419 and 420 of 1989, titled Shah Behram v. Akbar Khan and Shah Behram v. Gul Muhammad, as common questions of lave and facts are involved in both. These matters.
2. Shah Behram, plaintiff-petitioner herein instituted two Pre-emption suits Nos.223/1 and 224/1 against Akbar Khan and Zafar Khan, defendants --respondents in C.R-No_419 and Gul Muhammad and two others defendants--respondents in C.R.No-420 in the Court of Senior 'Civil Judge, D.I. Khan on 3-10-1988. These suits were entrusted for disposal to Civil Judge-11. D.I. Khan. In these suits the plaintiff-petitioner was ordered to deposit 1/3rd of the sale amount shown in the sale mutations in cash and for the remaining 2/3rd amount to furnish bank guarantee. He deposited 1/3rd of the pre- emption money in cash but failed to furnish bank guarantee as ordered by the trial Court. On the date fixed by the Court he sought permission to deposit the remaining 2/3rd amount in cash instead of furnishing Bank guarantee which was allowed but again he could not deposit the amount as the Bank was closed. Therefore the two suits were dismissed for non-compliance of the order of furnishing bank guarantee vide order dated 1-12-1988. On 5-12-1988, the plaintiff-petitioner instituted fresh Suits Nos.307/1 and 308/1 against the aforesaid defendants-respondents wherein a preliminary objection was raised by them that the suits were not competent and were barred by the principle of res judicata because previous suits were dismissed for non-compliance of the order of the Court regarding furnishing of bank guarantee and deposit of pre--emption money.
The trial Court vide order dated 1-3-1989 after comparing the provisions of section 23 of the N: W.F.P. Pre-emption Act, 1950 (now repealed) with the provisions of section 24 of the N: W.F.P. Pre- emption Act, 1987, concluded that since the present law provided for the dismissal of the suit, therefore, the suits were liable to be dismissed. The Court dismissed freshly instituted suits with no finding on the issues of competency and res judicata. The order dated 1-3-1989 was impugned in appeal before the learned District Judge D.I. Khan. The question of law involved was argued before the learned District Judge who while concurring with the lower Court held that once the pre- emption suit was dismissed for non-compliance of the order made under section 24(2) of the N.- W.F.P. Pre-emption Act, 1987, the fresh suit on the basis of same cause of action was not competent on account of principle of res judicata. He, therefore, vide his consolidated order dated 4-9-1989 dismissed the appeals.
3. The plaintiff-petitioner is aggrieved of the aforesaid orders of the Courts below and has come in revision to this Court.
4. S. Mushtaq Ali Shah, Advocate for the plaintiff-petitioner, argued that the Courts below have wrongly applied the principle of res judicata while dismissing the suit, inasmuch as the requirements of section 11 of the C.P.C. Were not present. Reliance was placed on the cases reported as Abdul Ghafoor v. Chief Settlement Commissioner (1985 SCMR 464) and Sheikh Barkat Ali v. Additional Chief Settlement Commissioner (PLD 1968 Lah. 770). It was further argued by the learned counsel for the plaintiff-petitioner that under Order 9, Rule 4 C.P.C. a plaintiff can bring fresh suit if his earlier suit is dismissed under Rule 2 or Rule 3 of Order 9, C.P.C. Therefore, on the same principle fresh suits could be filed by the plaintiff-petitioner on the same cause of action. His last submission was that under section 23 of the old Pre-emption Law, the fresh suit was not barred when the plaint was rejected for non-deposit of the pre-emption money, therefore, the plaintiff- petitioner herein could also bring fresh suit provided it was within the prescribed period of limitation. Reliance, in this respect, was placed on Malik Alamgir v. Salam Gul (1990 CLC 1915) and Sharifullah v. Mumtaz (PLD 1980 Pesh. 87).
5. Haji Sadullah Khan Miankhel, learned counsel for the defendants --respondents, in reply, contended that case-law cited on the subject by the learned counsel for the plaintiff-petitioner herein is not applicable to the facts of the case in hand. He referred to the provisions of section 23 of the old Pre--emption Act and those of section 24 of the new Pre-emption Act and argued that in the old Act extension of the time was allowed whereas in the new Act, no such extension can be allowed. Making his submission on the principle of res Judicata learned counsel for the respondents cited the cases of Muhammad Tufail v. Ata Shabbir (PLT1 1977 SC 220), Pir Bakhsh v.
Chairman, Allotment Committee (PLD 1987 SC 145) and Syed Mir Ahmad Shah v. Pakistan and two others (P L D1979 Lah. 599).
6. I have heard the learned counsel for the parties at some length and have also perused the record of the case and the law cited at the Bar. It is pertinent to note that two sale mutations Nos.4167, 4183 which were subject of pre-emption suits were attested on 25-1-1988. The second pre-emption suits Nos.307/1, 308/1 were instituted on 5-12-1989 i.e. Within the period of one year from the date of attestation of sale mutation as provided in section 31 of the Pre-emption Act, 1987 (Act X of 1987) (hereinafter referred as the Act). In every suit for pre-emption under the Act the Court shall require the plaintiff pre-emptor to deposit sale price of the property. For convenience-4 reference the provisions of section 24 of the Act are reproduced as under:-- (1)"In every suit for pre-emption the Court shall require the plaintiff to deposit in such Court one- third of the sale price of the property in cash and for the remaining two-third furnish bank guarantee to the satisfaction of the Court within such period as the Court may fix: Provided that such period shall not extend beyond thirty days of the filing of the suit: Provided further that if no sale price is mentioned in the sale-deed or in the mutation, the Court shall require the deposit of one-third of the probable value of the property and bank guarantee for the ramaining two-thud of such probable value: Provided also that the plaintiff may, in lieu of bank guarantee deposit the required amount in cash.
(2)Where the plaintiff fails to deposit one-third of the sale price or the probable value of the property and the required bank guarantee under subsection (1) within the period fixed by the Court, his suit shall be dismissed.
(3)Where the plaintiff withdraws the sum deposited by him or the bank guarantee furnished by him under subsection (1), his suit shall be dismissed.
(4)Every sum deposited under subsection (1) shall be available for the discharge of costs.
(5)The probable value fixed under subsection (1) shall not affect the final determination of the price payable by the pre-emptor."
The bare reading of the above provisions of law would show that mode to deposit the sale price is given in he Act which has to be observed by the Court while passing order for deposit of sale price of the property. Under first proviso to subsection (1) of section 24 of the Act, the Court is not competent to extend the period for deposit of the pre-emption amount beyond thirty days of the filing of the suit. Subsection (2) of section 24 provides for the dismissal of the suit when plaintiff fails to deposit one-third of the sale price or probable value of the property and the required bank guarantee within the period fixed by the Court. No doubt the fresh pre-emption suits were instituted within one year from the date of attestation of sale mutation but the entertainment of these suits would have thwarted the provision of law as contained in the 1st proviso of subsection
(1) of section 24 of the Act placing embargo on the power of the Court to extend the period beyond thirty days, for, in that case the Court could be said to have extended the time which it did not extend in the previously instituted suits. The Act contemplates only the first pre-emption suit. It is an enactment in accordance with injunctions of Islam and with no stretch of imagination can be said to be analogous to the provisions of the old Pre-emption Act, where under subsection (4) of section' 23, the Court could extend the time for deposit of the pre-emption money and for non- deposit of pre-emption amount the plaint was to be rejected. The case law cited by the learned counsel for the plaintiff-petitioner and reported as 1990 CLC 1915 and PLD 1980 Pesh. 87 is not applicable for, these are the cases wherein the provisions of subsection (4) of section 23 of the old Pre-emption Act are discussed. Since then, much water has flown under the bridge. Presently we have a new pre-emption Law enacted in accordance with the injunctions of Islam. The right of pre- emption under he Act has to be exercised promptly which would extinguish if Talb-i-muwathibat, talb-i-ishhad and talb-e--khusumat are not made as prescribed in the Act. The mere fact that the time limit is prescribed for making talbs would indicate that the Islamic law of pre-emption is not as liberal as the old pre-emption law. If the Courts permit the institution of second pre-emption suit when the first suit is dismissed for non--compliance of the order of the Court regarding deposit of pre-emption money that would defeat the purpose of the Act.
7. It has been argued by the learned counsel for the plaintiff-petitioner that the appellate Court illegally held the suit as not competent on the principle of _res Judicata. The argument has some force. The suits may not be barred by the principle of res judicata but these were not competent suits. The appellate Court has held the suit incompetent on account of principle of res judicata, but the same has not been elucidated. In the case reported as 1985 SCMR 464 (Abdul Ghafoor v. Chief Settlement Commissioner) cited by the learned counsel for the petitioner, it has been held that the principle of res judicata is applicable in the writ jurisdiction and that in order to furnish ground for the principle of res judicata the matter on which plea is raised must be found to have been finally adjudicated and decided in previous proceedings. Viewed in the light of the aforesaid dictum we find that principle of res judicata is not attracted to the case in hand. The effect of non-compliance of order under section 24(2) of the Act was the dismissal of the suit by the Court. The fresh suits were, therefore, incompetent. In the case of Sheikh Barkat Ali v. Additional Chief Settlement Commissioner (PLD 1968 Lah. 770) also referred to by the learned counsel for the petitioner, the principle of res judicata was not applied because the writ petition filed earlier was dismissed in limine on the ground of laches without determining the merits of the case. Similarly a careful perusal of the case law cited by the learned counsel for the respondents would show that principle of res judicata will apply to suits or proceedings when a matter is finally decided between the parties. In Muhammad Tufail v. Ata Shabbir (PLD 1977 SC 220) it has been held as under:-- "The object of the principle of res judicata as suggested by the expression itself is that finality should impart to judicial decisions and if a case is _res judicata, it may not be reopened so as to be adjudged again. In other words once a matter between the parties to a suit or proceeding is decided that the decision has become final either (i1 because no appeal lies or (ii) no appeal was taken or (iii) if taken, it was dismissed, none of the parties shall be allowed to canvass the same matter again in a subsequent suit or proceedings between the same parties. But for this curb on litigation it would become interminable; human nature being what it is. As a result of the application of this principle as embodied in section 11 of the C.P.C. All future litigation at any length between the parties must proceed on the presumption of correctness of the previous decision."
8. Again in the case of Pir Bakhsh v. The Chairman, Allotment Committee (PLD 1987 SC 145) while considering the bar of res judicata reference has been made to the case reported in AIR 1928 Cal.
777. The dictum referred is reproduced hereunder:-- "The question whether decision is correct or erroneous has no bearing upon the question whether it operates or does not operate as res judicata. The doctrine is that in certain circumstances the Court shall not try a suit or issue but shall deal with the matter on the footing that it is a matter no longer open to contest by reason of a previous decision. In these circumstances it must necessarily be wrong for a Court to try the suit or issue, come to its own conclusion thereon, consider whether the previous decision is right and give effect to it or not according as it conceives the previous decision to be right or wrong. To say, as a result of such disorderly procedure that the previous decision was wrong and that it was wrong on a point of law, or on a pure point of law, and that therefore, it may be disregarded, is an indefensible form of reasoning. For this purpose, it is not true that a point of law is always open to a party .......
"On the other hand it is plain from the terms of section 11 of the Code that what is made conclusive between the parties is the decision of the Court and that the reasoning of the Court is not necessarily the same thing as its decision. The object of the doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se, but to ascertain their rights and the facts upon which these rights directly and substantially depend, and to prevent this ascertainment from becoming nugatory by precluding the parties from reopening or recontesting that which has been finally decided."
9. In case of Syed Meer Ahmad Shah v. Pakistan and two others (PLD 1979 Lahore 599), it has been held that the principle of res judicata bars all subsequent suits after the pronouncement of the Supreme Court regarding merits of the case though made while disposing of the matter in limine.
10. From the aforementioned decisions it will appear that principle of res judicata is applicable only when the Court has in the previous suit or proceedings decided a matter or issue between the parties. In the instant case' in the previous suit the Court dismissed the suits for non-compliance of order made under section 24(2) of the Act. The fresh suits were nit competent under the provisions of the Act. The principle of res judicata was not applicable, inasmuch as in the previous proceedings the issue was determined by the Court itself under the law.
11. Adverting to the contention of the learned counsel for the petitioner that fresh suit is not barred under Order 9, Rule 4, C.P.C., suffice it to say that this provision is not attracted to the present case.
Under Order 9, Rule 4, C.P.C., where a suit is dismissed under Rule 2 or Rule 3, the plaintiff may subject to the law of limitation, bring afresh suit or he may apply for an order to set the dismissal aside. Rule 2 provides for dismissal of suit where summons are dot served in consequence of the plaintiff's failure to pay the costs. Under Rule 3, suit is dismissed when neither party appears when it is called for hearing. The petitioner's suit was not dismissed under Rule 2 or Rule 3 of Order 9, C.P.C.
So that the provisions of Rule 4 of Order 9, C.P.C. Could have been applied to it. I am, therefore, of the view that dismissal of the suit under subsection (2) of section 24 of the new Pre-emotion Act, 1987 cannot be equated to the dismissal of the suit under Rules 2 and 3 of Order 9 of the C.P.C.
12. The two Courts below in dismissing the second pre=emotion suit of the plaintiff-petitioner have correctly exercised the jurisdiction vested by law. In the exercise of their jurisdiction, the Courts have neither acted illegally nor with material irregularity calling for interference by this Court under section 115.
13. For the foregoing reasons the revision petitions being devoid of merit are, therefore, dismissed.
Parties are left to bear their own costs.