1. CH. MUSHTAQ AHMAD KHAN, J.-Briefly stated facts of the case out of which this civil revision has arisen are that the petitioner Sheraz Ata Ullah Khan, alongwith Nusrat Ullah Khan, filed a suit to pre- empt land measuring 91 kanals and 4 marlas situate in village Hussain Wala of Tehsil and District Mianwali, against respondents No.1 and 2, who had purchased the same from Messrs Shahjahan Khan and others. Both the pre-emptors are sons of the vendors, namely, Shahjahan Khan and Suba Ahmad Sardar Khan, respectively and it is on the basis of this qualification that the superior pre-emptive right has been claimed. This suit has been contested by the respondents Nos. 1 and 2.
2. On the basis of the pleadings of the parties, learned trial Court framed the following issues: -
(1) Whether the suit is insufficiently valued for the purposes of the Court- fees and jurisdiction. If so what the correct valuation and effect of non-deposit of adequate court-fee within time limited by law. OPD.
(2) Whether the suit is collusive and benami.
(3) Whether the plaintiffs have got superior right of pre-emption qua vendor, defendant.
(4) Whether the sum of Rs.100,000 was fixed in good faith actually paid as sale price of land in question.
(5) On non-proof of issue No.4, what was the market value of land in suit at the time of sale.
(6) Whether the vendee/defendant have effected improvement over land in suit.
(7) Whether the defendants are entitled additional charge, of Registration etc. If so to what extent.
(8) Relief. and after recording of evidence vide judgment and decree dated 17.10.1982, decreed the suit of the plaintiffs on payment of Rs.100,000 as a pre-emption money and directed the pre-emptors to pay the same on or before 15.11.1982.
3. Aggrieved of the decretal amount, the plaintiffs-petitioners and the co- plaintiff who is respondent No.3 in this civil revision, filed an appeal in District Court Mianwali, which was accepted by the learned Additional District Judge, Mianwali, vide judgment and decree dated 9.5.1983 and the judgment and decree passed by the learned trial Court was modified, so as to reduce the sale price from one lac to Rs.89,500. The pre-emptors were directed to deposit a sum of Rs.89,500 after deduction of zar-e-panjam, on or before 2.7.1983. It has been directed in the decree passed by the learned Addl. District Judge that in case the petitioners fail to make such deposit upto the time fixed their suit shall be deemed to have been dismissed. The petitioner and the respondent No.3 filed an application on 29.6.1983, for review of the judgment and decree rendered by the learned Addl. District Judge, under section 114 of C.P.C., claiming therein that the respondent No.3, a co- plaintiff wants to withdraw the suit, therefore, he may be allowed to withdraw from the suit, the petitioner may be granted decree for the whole of the suit land and he may be allowed to deposit the entire pre-emption money and for the purpose of deposiLof sale price, fresh date may be fixed and in the alternative the date already fixed may be extended. There is an application appended with the review petition, praying therein that the decree sought to be reviewed may be suspended and the time limit fixed for the deposit of the pre-emption money may also be suspended and in the alternative time fixed may further be extended.
2. Learned Addl. District Judge, vide order dated 30.6.1983, held that the petitioner-plaintiff was entitled to the half of the land and there is no reason that even to extent of his share in the decree he should not deposit the preemption amount within the prescribed time. Regarding deposit of the remaining amount it was ordered that proper order can only be passed, after hearing the other parties and hence did not suspend the decree and held that proper order will be passed at the time of final decision bTthe review petition. Order dated 30.6.1983, passed by the learned Addl.
4. District Judge is reproduced as under:- {{URDU TEXT MISSING}} In pursuance of the above order, the petitioner-plaintiff deposited an amount of Rs.24,750 on 2.7.1983 in addition to the zar-e-panjum, already deposited which, made the total deposited decretal amount equal to Rs.44,750 which is equal to share of the petitioner-plaintiff. In proof of this deposit, learned counsel for the petitioner has placed on record a report obtained from the court of learned trial Court and has placed on record certain other documents which prove that the deposit had been made by the petitioner within the stipulated period of time. Learned counsel for the respondents have gone through these documents admitted that the deposit referred to above, stands established on record.
3. The review application was again taken up on 19.7.1983 and fresh notices were issued to the respondents for 25.1.1983 and after keeping the matter pending upto 25th February, 1984, learned lower appellate court dismissed the review application as well as the suit in toto for want of deposit of the total decretal amount of Rs.89,500 before the date fixed in the original judgment and decree dated 9.5.1983 rendered by him, vide order dated 25.2.1984. Operative paragraph 5 of the said order is reproduced as under:- "For the foregoing reasons I am convinced that the suit of the petitioners was joint and the same could not be divided into two separate or rival claims after disposal of the first appeal. One of the petitioners cannot be permitted to withdraw his claim nor he could surrender his claim in favour of the other. Both the petitioners were to sail together and, since, the total pre-emption money has not been deposited, under the orders of this Court dated 9.5.1983, the suit of petitioners stands dismissed in toto. No provision or concession of partial pre-emption can be made in favour of one.
5. Petitioner No.1 had not sought decree for total land in his favour alone, either in the plaint or in the memorandum of appeal and, as such, the same could not be granted to him at this belated stage.
6. No concession for extension of time for deposit of pre-emption money can be exercised in favour of any of the petitioners, particularly, when the court has already became functus officio. The review application is, therefore, without force and the same is accordingly, rejected. The money, already deposited by the petitioners, may be withdrawn by them."
7. The order dated 25.2.1984 passed by the learned Civil Judge and judgment and decree dated 9.5.1983 have been challenged in this civil revision.
4. Rana Muhammad Sarwar Khan, Advocate, has appeared on behalf of the petitioners whereas Mr. Muhammad Hanif Niazi, Advocate has appeared on behalf of respondents No.1 and 2. Mian Muhammad Nawaz Advocate, has appeared on behalf of respondent No.3. Learned counsel for the petitioners has raised the following contentions:-
(1) That the petitioner and respondent No.3 in this civil revision has filed the pre-emption suit on the basis of their own independent right which is superior even individually qua the respondents No.1 and 2, being sons of two vendors therefore, even if one of the co-plaintiff had opted to withdraw from suit, the petitioner was entitled to the grant of a decree for whole of the land in question and the suit in toto could not have been declared to have been dismissed by the learned Addl. District Judge. Judgment of the learned first appellate court, therefore, according to the learned counsel, is erroneous in law. Reliance in this behalf has been placed by the learned counsel for the petitioners on the following cases... Anrub Misir vs. Ram Harakh Misir (AIR 1929 All. 953), Ramji Lal and others vs. Pitam Chand (AIR (35) 1948 EP 18), Khawas Khan vs. Rasul Khan and Lashkar Khan (29 PR 1894), Mehr Allah Ditta vs. Muhammad Ali (PLD 1972 SC 59), Mst. Said Begum and others vs. Nur Ahmad and others (PLD 1978 SC 133), Jalla and others vs. Nauranga and others.... (PLD 1949 Lahore 302).
(2) That while dismissing a review petition, learned Additional District Judge had the jurisdiction to extend time for deposit of the balance decretal amount and refusal to extend the time or fix fresh period of time for deposit of sale price is illegal and hence the learned appellate court has exercised the jurisdiction illegally and with a material irregularity. Reliance in this behalf has been placed on cases of Shah Wali vs. Ghulam Din and another (PLD 1966 SC 983), Khurshid Akber vs. Mian Manzoor Ahmad (1982 S.C.M.R. 824), Bhai Khan vs. Allah Bux and another (1986 SCMR 849), Ghulam Haider and others vs. Mst. Raj Bharri (PLD 1988 SC 20) and Muhammad Irshad vs. Ch. Fazal Haq and 5 others (1991 SCMR 2149).
(3) That the petitioner could not have been punished for the act of the court. Before the expiry of the time fixed by the learned Addl. District Judge for deposit of the pre-emption money, an application was made for modification of decree and seeking permission to deposit the whole decretal amount by the petitioner alone. The application filed by the petitioner was kept pending by the court and it was observed that the petitioner should deposit the pre-emption money to the extent of his share within the time fixqd by the said court and with regard to the right to deposit the balance amount, the matter was postponed, to be decided after hearing the parties while refusing suspension of decree, it was ordered that regarding this aspect proper order shall be passed at the time of final decision of the review application. The petitioner did deposit the pre-emption money within the time fixed by the learned Additional District Judge to the extent of his own share and could not have deposited the balance sale amount without requisite modification of decree and in view of the order passed by the learned first appellate court, hence failure to deposit the total pre- emption money was not the result of any inaction or negligence on the part of the petitioner but due to the aCt of the court, consequently, the petitioner could not have been penalized, by dismissal of the suit in toto, due to non-deposit of the total preemption money. Reliance in this behalf has been placed by the learned counsel on cases of Khan Shah Muhammad Khan vs. Allah Diwaya and others (PLD 1961 Lahore 743), Malik Hadayat Ullah and two others vs. Murad Ali Khan (PLD 1972 SC 69) and Malik Barkat Ali Dogar vs. Muhammad Shafi and others (PLD 1990 S.C. 60).
8. Elaborating his arguments, learned counsel for the petitioners has argued that the petitioners having filed the pre-emption suit in exercise of the independent rights had a right to obtain a decree jointly and severally to pre-empt the total land sold, on payment of the sale price fixed by the learned Additional District Judge withdrawal of the co-plaintiff whose right to pre-empt was not in any manner joint with the petitioner could not have resulted in the dismissal of the suit in toto inasmuch as pre-emption is a right of substitution qua the vendee and is not the sale in pursuance of the agreement for sale, consequently if one pre-emptor did not like to pre-empt sale and the other wanted to pre-empt sale as whole on the basis of his own right which has already been held by the court as being superior to the respondents he was definitely entitled to the decree with regard to the whole of the land in question on payment of total decretal amount fixed by the court and therefore, the learned Addl. District Judge could not have dismissed the decreed suit. Learned counsel further argued that the petitioner could not have deposited the total decretal amount without decree being modified and further due to the order passed by the learned Addl. District Judge on 30.6.1983, wherein the petitioner had been made to deposit the sale amount to the extent of his own share alone and with regard to the deposit of the balance amount, the decision was reserved till the time the review petition is finally decided, after hearing the respondents consequently, the petitioner could not be said to be at fault and it was due to the order of the court that he did npt deposit the total sale firice and therefore the suit could not have been dismissed while dismissing the review petition filed by the petitioner and respondent No.3. According to the learned counsel act of the court cannot prejudice a litigant and keeping the review application pending for a considerable time, will be a very strong circumstances to be taken into consideration in favour of the petitioner while exercising discretion to fix and allow further time to deposit the pre- emption money. Hence the learned Additional District Judge committed a serious error of law which attracts the exercise of revisional jurisdiction of this Court. Learned counsel further contend that a review jurisdiction is a statutory jurisdiction and while deciding an admitted review application, learned Addl. District Judge did have the jurisdiction to extend the time for deposit of the pre-emption money and view of the lower appellate court to the effect that the suit stood dismissed and hence the court is functus officio is not lawful and is rathan against the ratio of the cases of Shah Wali vs. Ghulam Din and another (PLD 1966 SC 983), Khurshid Akbar vs. Mian Manzor Ahmad and another (1982 S.C.M.R. 824), Bhai Khhn vs. Allah Bux and another (1986 SCMR 849) and Ghulam Haider vs. Mst. Raj Bhari (PLD 1988 SC 20). Hence the learned lower appellate court has exercised jurisdiction illegally and with a material irregularity and discretion has been used against the petitioner in an illegal and arbitrary manner.
5. Muhammad Hanif Mazi, Advocate, learned counsel for the respondent No.1 and 2 has raised the following contentions:-
(1) That the petitioner and respondent No.3 in fact wanted to get extension of time for deposit of the pre-emption money fixed by the learned Addl. District Judge, who having decided the appeal has become functus officio, therefore, the pre-emption money in toto having not been deposited, review proceedings being taken to a court which has no jurisdiction to extend the time will, not make any difference and the suit shall stand dismissed automatically, as such the learned Additional District Judge has passed lawful order which cannot be interfered within exercise of the revisional jurisdiction of this Court, in support of the above arguments, learned court has relied upon cases of Muhammad Gul vs. Nemat Ullah and another (PLD 1968 AJK 15), Mardan Shah vs. Sattarn and others (PLD 1954 Lah. 87), Shah Wali vs. Ghulam Din alias Gaman another (PLD 1966 SC 983), Khan Shah Muhammad Khan vs. Allah Diwaya and others (PLD 1961 Lahore 743), Mst. Jannat vs. Sham and three others (PLD 1983 Lahore 302) and Bhai Khan vs. Allah Bakhsh and another (1986 S.C.M.R. 849).
(2) That the learned Additional District Judge having refused to extend the time in exercise of the discretionary jurisdiction, no interference can be made therewith in exercise of the revisional jurisdiction of this Court. Reliance in this behalf has been placed by the learned counsel on the case of Bhai Khan vs. Allah Bux and another (1986 SCMR 849).
(3) That the petitioner has not deposited the pre-emption money till today and therefore, on this short ground he has no right to get his suit decreed which has already been dismissed by the learned lower appellate court. Reliance in this behalf has been placed by the learned counsel on case of Manzoor Hussain vs. Muhammad Ali and another (1989 SCMR 1498)
(4) That there being a joint decree in favour of the petitioner and respondent No.3, both the pre- emptors had to sail together. If the respondent No.3 had withdrawn from the suit, the whole decree stood frustrated and as such the suit in toto has rightly been dismissed.
9. Reliance has been placed in this behalf on case of Muhammad Ishaq and another vs. Mst. Sufia Begum (1992 SCMR 1629).
6. I have considered the arguments addressed by both the learned counsels for the parties, have perused the record and have gone through the judgments cited at the bar. Admittedly, before the date fixed for deposit of the pre-emption money by the learned Additional District Judge i.e. 2.7.1983, the petitioner and respondent No.3, on 2.6.1983, had filed a review application before the learned Additional District Judge, praying therein a modification of three as well as fixation of a period of time for deposit of the pre-emption money by the petitioner alone who claimed himself entitled to the grant of the decree of w'hole of the suit land and wanted to deposit the whole pre- emption money. Suspension of decree during the pendency of main petition was also prayed for.
10. This application was filed_on 29.6.1983. It was taken up by the learned Additional District Judge on 30.6.1983 and was registered and the notices were issued for 19.7.1983, after noticing the contentions raised by the petitioner. Regarding the prayer contained in a separate application for suspension of the decree, particularly, the term for deposit of the decretal amount, learned Additional District Judge did not suspend the decree but specifically held that the petitioner should deposit the pre-emption money to the extent of his own share. Regarding deposit of the balance amount learned Additional Distt. Judge postponed the decision till the review application was decided ultimately. This review application remained pending before the learned Addl. District Judge and was ultimately dismissed on 25.2.1984. The petitioner is proved to have deposited the sale amount to the extent of his own share amounting to Rs.44,750 as is clear from the certificate report issued by the office of the learned civil Judge, which fact has been conceded before me by the learned counsel for the respondents after going through the deposit report. Consequently, it is crystal clear that there was no failure on the part of the petitioner, to deposit the whole sale price within the stipulated period of time inasmuch as he could not have deposited the said amount unless and until the decree was modified or there was a direction by the court or the prayer for deposit of the whole decretal amount was not kept pending and it was left to the petitioner to deposit the amount. It is due to the act of the court itself that the petitioner did not and rather could not deposit the whole decretal amount.
7. It is an established principle of law that a right of pre-emption is a right of substitution. It is not a right of purchase of property or a fresh sale. Each pre-empt has an independent right to pre-empt a sale and even if one of the preemptors withdraws or is found to have no superior right of pre- emption, his name can be struck off and the remaining pre-emptor is entitled, on the basis of his own right, to get a decree of the total land sold, inasmuch as each pre-emptor has an independent right of pre-emption. This view is fully supported by the law declared in the judgments cited at the Bar and noted at serial No.1 of the contentions raised by the learned counsel for the petitioner and case of Mst. Jannat "PLD 1983 Lahore 302 referred to by the learned counsel for the respondents. In fact this proposition has not been seriously contended by the learned counsel for the respondents No.1 and 2. Out of the cited cases by both the learned counsel, the relevant most for determination of the matter in issue, are referred below:- In case of Jalla and others vs. Nauranga and others (PLD 1949 Lahore 246), it has been held that if there are three pre-emptors out of whom, when the case is pending in appeal, one of the appellant dies and his legal representatives are not brought on the record, the appeal cannot abate as a whole inasmuch as the right of pre-emptor is separate and independent right. In case of Mst. Said Begum and others vs. Nur Muhammad and others (P.L.D. 1978 Supreme Court 133), It has been held as under:- "The suit was filed on the premise that the respondents were the owners in the khata of the suit land and, therefore, had a superior right of pre-emption in terms of section 15(e), thirdly, of the Punjab Pre-emption Act, 1913, without specifying to what extent they were individually interested to pre-empt the sale of the suit land."
11. A learned single Judge in the High Court held that such right is not jointly shared by one respondent with the others in a pre-emption suit. As such, any one of the respondents had a right to pre-empt the sale of the land subject to the limitation that it was only controlled by a similar right of other pre-emptors of equal degree. Therefore, in the case of various suits of pre-emption brought by persons having an equal right of pre-emption the property is awarded to all the preemptors in equal shnare, and in the case of one suit where several persons having an equal right of pre-emption joint to pre-empt the sale, each one of them is entitled in his individual right to a decree in respect of the entire property. Thus the withdrawal or death of one of such person would only have the effect of eliminating him from the case which would not affect the right of surviving persons to pre-empt the entire suit land.
12. In support of the plea that the appeal abated in toto the learned counsel for the appellants relied on Sheikh Inayat Ali vs. Ghulam Muhammad and others and Wali Muhammad and others vs. Manak Ali and others.
13. The rest to see whether the suit or appeal abates as a whole or only in part is to find out if the suit, in the first instance could have been instituted and prosecuted with the deceased plaintiff left out.
14. In other words, if the plaintiffs could file separate suits then the abatement will only be in part. The same criterion will apply to an appeal. If, on account of partial abatement, it becomes, for any reasons, impossible to proceed with the suit to its final conclusion, the entire suit will fail. The reason being that no decree can be passed or given effect to insofar as the rights of the parties actually before the court are concerned, without interfering with the interest of the legal representatives of the deceased party not brought on record. However, if this is not so then the suit abates partially.
15. Applying this test to the instant case, the right to pre-empt exists under section 4 of the Pre- emption Act with respect to the land or village immovable property in a particular person or persons before the sale of such property take place and becomes an actuality at the completion of the bargain. It is a personal right in the sense that it is created in him by the provisions of section 15 and occurs on account of personal relationship which the pre-emptor may have with the vendor or it may appertain to him as a co-sharer in the property or a proprietor in that estate. It is also personal in the sense that his interest in pre-emptive property is protected solely against determinate individuals. Therefore, any person standing in that situation can file a suit for pre- empting the sale of the property; and if the number be more than one then they can join as plaintiffs to seek the same relief. Such right being personal, each one of them is entitled to prosecute the suit to the same extent as the others. And, if one of them withdraws or dies without his legal representatives being brought on record then this would not adversely affect the rights of the others. In Mahadeo Singh vs. Talib Ali and others (2) one of the appellants-pre-emptors died during the pendency of the appeal and his legal representatives were not concerned, the question arose as to whether the appeal had abated as a whole Mukerji, J. Said:- "The pre-emptors' right to pre-empt the whole of the property sold is independent of a similar right enjoyed by another person who stands in the same degree as regards the right of pre-emption as the other claimants. The fact, therefore, that two or more such claimants to a right of pre-emption join in one suit, instead of bringing separates suits of their own, cannot convert the separate rights of the several plaintiffs into a joint right.
16. Accordingly, it was held that the failure to bring the legal representatives of one of the appellants on record would not interfere with the right of the other appellants to prosecute their appeal. In Muhammad Wajid Ali Khan vs. Puran Singh and others (1), one of the respondents, who had joined the others to pre-empt the sale of the land, died during the pendency of the appeal filed by the vendee and his legal representatives were not bring on record, consequently, the High Court rejected the appeal in toto. The question which arose for decision before the judicial committee was as to whether the High Court was correct in holding that the whole appeal had abated. Sir John Wallis, who delivered the judgment observed thus:- "On the other hand, two or more co-sharers may simply sue the stranger purchaser for pre- emption, as in the present case, without asking the court to adjudicate on their rival claims and may obtain a decree for possession on depositing the pre-emption money in court. In their Lordships' opinion the effect of that decree is to establish, as against the defendant, the right of each of the plaintiff-co-sharers to pre-empt him and to entitle them to possession on deposing the preemption money, leaving them to adjust their shares and priorities among themselves, these being matters in which the defendant has no concern so long as the pre-emption money is secured to him."
17. Accordingly, the view held by the High Court was not approved.
18. In Jalla and others vs. Nauranga and others (2) it was held that the right of each pre-emptor is a separate and independent right and the abatement of one of the appellants' appeal cannot possibly affect the rights of the other appellants to get the relief sought by them in the case they are otherwise found entitled to the same. It was, accordingly, held that the appeal did not abate in its totality.
19. In the light of the above principle, we are of the view that in Sh. Inayat Ali vs. Ghulam Muhammad and others, which was a petition for special leave to appeal, this Court, without considering the distinction as to the right of the individual preemptors, had dismissed the petition on the sole criterion that the defect in not bringing on record the legal representatives of the deceased appellants had affected the rights of the others to prosecute the appeal which is not a correct statement of law.
20. The learned counsel next relied on the observations of this Court in Wali and others vs. Manak Ali and others in which the question was as to whether the agreement for sale should be interpreted as consisting of two agreements, one in favour of each vendee. It was held that this was not possible as it violated section 17 of the Specific Relief Act which did not permit the specific performance of a part of the contract; and therefore it was treated as one contract. It was further observed that this position was similar to that which arises in cases of pre-emption where, with respect to one sale-deed in favour of more than one vendee, there can only be one suit for pre- emption. This observation cannot be extended to the case of the pre-emptors who have an individual right to pre-empt the sale of the property. And in case they join as plaintiffs, the death of one of them would not affect the others to prosecute the suit. To hold otherwise would be to deny to them their statutory rights.
21. In the result, we are of the opinion that the learned single Judge had rightly held that the appeal had partially abated. There is, therefore, no room for interference with that conclusion. The appeal has no substance and is dismissed but with no order as to costs"...
22. In case of Jannat vs. Sham (PLD 1983 Lah. 302), it has been held as under: - "Before answering the above question, it is necessary to state a few matters about a pre-emption suit. When claiming pre-emption, several pre-emptors may institute separate suits claiming the whole property, in which case all the suits, may be consolidated. Their respective rights and priorities determined according to section 17 of the Punjab Pre-emption Act, 1913, and separate decrees passed in accordance therewith, or they may institute a joint suit for pre-emption and secure a joint decree for possession. Assuming that the petitioner and respondent No.3 and 4 had instituted separate suits, each one of them would have been initially directed to deposit Rs.2,000 as zar-e-panjum and, had all the three suits succeeded and their respective shares determined under clause (e) of section 17 of the Preemption Act, each of them would have been granted a decree for possession of 1/3rd of he pre-empted property and would have been directed to deposit the balance price as Rs.1,333.33 in Court by particular date and, in the event of one or both of the other pre-emptors failing to deposit his or their respective balance prices by the said date, to deposit his or their 1/3rd share of the total price by some further date to secure his or their share of the pre-empted property thereafter. This is in accordance with Order XX, Rule 14(2)(a), C.P.C. In the present case, the petitioner and respondents No.3 and 4 agreed to institute a joint suit for possession through pre-emption. This is not a suit by rival pre-emptors. As such, Order XX, Rule 14(2) (a), C.P.C, does not strictly apply in such a case. In the present joint suit for possession a joint decree for possession was passed for the whole of the property in favour of all the pre-emptors.
23. Had the share of the joint decree-holder been uneven, ias in a case covered by clauses (a),(b),(c) and (d) of section 17 of the Punjab Pre-emption Act, 1913, the judgment and decree would have determined Their respective shares, as required by the said section. Assuming such shares were determined, the decree would not have ceased to be a joint decree. See Chandra Chur Deo v. Mst.
24. Shyam Kumari (1) and Sardar Makhavrao vs. Narayan Damodar (2). The object of a joint decree is that any one or more of the joint decree holders can, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of all, as opposed to any one applying for is own share along, leaving the others to take out executions of their own shares, which is not permitted. The main object, therefore, of a joint suit for possession through pre- emption is that a number of pre-emptors, who otherwise could place themselves as rival pre- emptors before a court of law, join together to assert their claims jointly, subject to the provisions of section 17 of the Punjab Pre-emption Act, 1913, and secure a joint decree for possession which any one or more of them can execute on behalf of all. In such a case| if one of the joint pre-emptors bogs down, the others must be prepared to pay the whole price and pre-empt the whole property.
25. The necessary corollary that must flow from such a position is that all payments, whether of zar-e- panjum or the balance price, deposited by one or more of the joint pre-emptors in whatever proportion they may choose, must enure for the benefit of all jointly, or in any of the cases covered by clauses (a), (b), (c) and (d) of section 17 of the Punjab Pre-emption Act, 1913, in such proportions in which their rights are determined thereby. If this principle is not adopted a joint suit of pre- emption would run into endless difficulties. However, there could be cases where payment of the zar -e-panjum or the balance sale price is accompanied by the application filed by the one or more of the pre-emptors declaring that such payment be treated as having been made by him or them in certain stated proportions, which should also be taken into consideration to determine his or their respective shares in the decree to be ultimately passed or when execution is taken out, in which case I do not see any reason why the court should not, after notice of the said application to the other pre-emptors, accept the same, if there is no objection from any body. Such an eventiality was foreseen by Boys, J. In Anrup Misir's case, though its effect on the payment was not considered.
26. I think Boys, J. By suggesting the eventuality, actually laid down one principle governing deviation, that is to say, the circumstances in which payments made in joint suits could be treated as not enuring in favour of the joint decree-holders so as to give them their respective rights as provided by section 17 of the Pre-emption Act, 1913. There could be cases where one of several pre-emptors withdraws at any stage, whether before or after the passing of a decree, leaving the other or others to deposit the whole amount and pre-empt the whole property."
27. It has been held in case of Mehr Allah Ditta and another Vs. Muhammad Ali and another (PLD 1972 SC 59) as under:- "There is, in our opinion, no reason why the plaintiff Makhan, should not maintain this suit alone, after the name of Sharaf has been struck out of the plaint; and we know no rule either of pre- emption, or of procedure which deprives the plaintiff Makhan of his right of preemption, or require that his suit should be dismissed because Sharaf was erroneously joined in the plaint as a co- plaintiff. We direct that the name of sharaf be struck out of the plaint, and that the appeal in the court of he Divisional Judge be heard on its merits as an appeal by Makhan alone." This decision was followed in Punjab in the cases of Khawas Khan v. Rasul Khan and another (1), Hira Lal and others vs. Ibrahim and other (2), Mst, Mangli and another v. Sobba Singh and another (3), Allah Ditta and others v. Qaim Din (4) and Raja and others v. Hussain and others. In the last mentioned case, the entire case-law was reviewed by Changez, J.
28. It was held in that case that the right of a pre-emptor-plaintiff is not lost if in a suit to enforce his right he joins with him a stranger. If such plaintiff however, insisted in getting the relief jointly, then it was obvious no relief could be granted at all to them. But the question assumes an entirely different complexion if the so-called stranger- plaintiff is willing to withdraw from the suit at any stage of the proceedings. The mistake in joining as a co-plaintiff is procedural and is remediable by amendment under Order I, Rule 10, C.P.C., even at appeal stage. It was further held that under sub-clause (2) of Order I, Rule 10, C.P.C., the court has power to strike out or add parties at any stage of the proceedings with or without an application."
29. Similar principles have been laid down in other judgments cited by the learned counsel for the petitioners and it is not necessary to re-produce the relevant portions thereof. In this case, admittedly both the pre-emptors had superior rights of pre-emption as per principle of independent right of pre-emption and the law as enunciated in the judgments referred to above. It is quite clear that the petitioner even alone had a right to get a decree for whole of the land in question as he was ready to deposit the whole decretal amount and the co-pre-emptor had decided to withdraw and the finding of the learned Addl. District Judge to the contrary, is therefore, illegal inasmuch as the same is based upon misunderstanding of the correct legal position.
8. Review application which had been filed by the petitioner and respondent No.3 was a statutory application which had to be decided on its own merits. It was admitted to a regular hearing and there was valid ground for entertainment and acceptance of the review petition inasmuch as previously a decree has been passed in favour of both the pre-emptors, namely, the petitioner and respondent No.3. One of the pre-emptors, namely, respondent No.3 wanted to withdraw the suit and petitioner wanted to get a decree for whole of the land in question on deposit of the total decretal amount, consequently, unless and until the decree was modified, the petitioner could not have deposited the total sale price as merely by deposit thereof he could not get the whole land.
30. Therefore, it is a fit case wherein review jurisdiction should have been exercised by the learned Additional District Judge and decree passed earlier should have been modified so that name of the respondent No.3 was struck off as co-plaintiff/co-decree holder and a decree is passed in favour of the petitioner alone on payment of the total decretal amount. In such an eventuality it was further necessary to fix fresh period of time to deposit the sale price and also to amend and modify the decree sheet. Finding of the learned Additional District Judge, therefore, to the effect that the review application is not competent and further that the court cannot fix fresh period of time for deposit as it had become functus officio. It is therefore, erroneous in law and not maintainable.
31. Findings of a he learned Additional District Judge that since the total sale price has not been deposited, the suit stands dismissed, is also misconceived. There was no decree passed in favour of the petitioner for the whole of the suit land on deposit of the total price by him alone, therefore how could he have deposited the total sale price without there being any order to this effect. Even otherwise, it is the learned Court itself who is responsible for the lapse, if any, in pursuance of whose order the petitioner deposited the pre-emption money to the extent of his own share only. It is clear from the bare perusal of the order that the balance sale price could not have been deposited by the petitioner due to the order passed by the court itself who kept the review petition pending and directed that necessary order shall be passed at the time of deciding the review petition finally, therefore, it cannot be said that there is any default on the part of the petitioner as a result whereof even he could have been non-suited, particularly, when he had prayed, well within time for the grant of a decree of total land on deposit of the total sale price. It has been held in cases of Khan Shah Muhammad Khan vs. Allah Diwaya and others (PLD 1961 Lahore 743), Malik Hidayat Ullah and two others vs. Murad Ali Khan (PLD 1972 S.C. 69), and Malik Barkat Ah vs. Muhammad Shafi and others (PLD 1990 SC 90) that act of the court should prejudice none and if the default has occurred due to the action or in-action on the part of the court, the defaulter cannot be penalized for such a default as he cannot be said to be wilful default. In case of 'Khan Shah Muhammad Khan' (PLD 1961 Lahore 743) referred to supra, wherein the dispute was that in case the decretal amount deposited by the pre-emptor is less by 4 annas, due to the fault of the court as well whether it will amount to a default on the part of the pre-emptor? It has been held as under:- "The main contest centres round the deposit of the pre-emption money. The question is whether in the circumstances explained, this Court is empowered to extend time of payment of the balance of the pre-emption money, namely, four annas, and whether such an order should be passed or not.
32. A reference to the record of the case has disclosed that a sum of Rs.4,170 was deposited by the pre-emptor on the 18th March 1954. Both the forms sum of Rs.16,683-4-0 on the 12th March 1954.
33. Both the forms of deposit appear to have been prepared by the court and bear the signatures of the Presiding Officer. The fault, if any, was not entirely of the appellant and the court was as much responsible for committing the mistake as the appellant was.
34. So far as the first-mentioned contention is concerned, it is, no doubt, true that the appellant does not appear to have obtained a copy of the decree before the depositing the pre-emption money in the court, but, as stated above, it was not entirely his fault that the money deposited in the court was short by annas four. The deposit forms had been prepared by the court and duly signed by the Presiding Officer and, therefore, the court should have asked the appellant to deposit the full amount in accordance with the terms of the decree. It is unbelievable that the appellant intentionally deposited annas four less that the amount which he was required to pay. It might be that the official concerned, in collusion with the opposite party, prepared wrong deposit forms and as the presiding officer could not have checked up the deposit forms with reference to the terms of the decree, the fault was primarily of the court official and the presiding officer, and not that of the appellant. The contention raised by the learned counsel, in this respect, has, therefore no force."
35. In case of 'Malik Hidayat Ullah' (PLD 1972 SC 69), in which case the question was that in case of default in deposit of the pre-emption money due to the circumstance that the pre-emptor has submitted an application for extension of the time for payment of the 1/5th of the pre-emption money which application had been kept pending for some time, it has been held at page 73 of the report as under:- "There was, as we have already pointed out, a very good and substantial reason for the extension of time, because even assuming that no application was made by the appellants for such extension of time, the court, in the interest of justice, was fully competent suo motu to extend the time when it had by its own act made it practically impossible for the appellants to comply with its original order by adjourning the application for furnishing security to the 6th of Jan. 1968"
36. In case of "Malik Barkat Ali Dogar" (PLD 1990 S.C. 60) referred to supra, the question was as to whether the preemptor has committed a default in deposit of the pre-emption money. It has been held at page 68 in para 13 of the judgment as under:- "The learned counsel for the respondents has taken us through the order, the circumstances in which it was passed. It is urged by him that it is not a judicial exercise of discretion. It contains no reason. It was treated as a request for extension of time when in fact the application was for alteration of the order and substitution of security for cash deposit. We have attended to this aspect of the case and find no fault with the order except that it is laconic as most of these orders are. The application was clearly for alteration in the order and its substitution by another. It was refused by the trial Court and while refusing on the last date fixed for deposit of the cash amount, the date was extended and this the trial could do. This was done after the learned counsel for the plaintiff who was present had been heard. A discretion possessed was exercised and rightly so because by postponing the decision to the last date and then confronting the plaintiff with no alternative would have been unreasonable and oppressive."
37. The judgments cited by the learned counsel for the respondents are distinguishable on facts and in fact are not relevant for decision of the controversy in question. In case of Muhammad Gul vs. Nemat Ullah and another (PLD 1968 A.J.K. 15) it has been held that after a case is decided by the court, period fixed for deposit of the pre-emption money cannot be extended but even in this judgment it has been held as under:- "This second exception is based upon another general rule which is enacted in Order XX, Rule 3, that when once a decree has been signed it shall not afterwards be altered or added to save as provided by section 152 or on'review. Section 148 cannot be allowed to operate so as to nullify this rule and it, therefore, follows that where a period is fixed or granted by a decree it cannot be extended by the court though the decree itself may be varied or reversed by the appellate Court under Order XLI, Rule 32 by granting a different period to that fixed by the lower court, but the above principle is subject to the Qualification that where the decree which fixes the time is not intended to be final and the Court still retains control over the proceedings the Court mav extend time undfer this section."
38. (underlining is by me)
39. From the above-mentioned view taken in the case by their Lordships of the High Court, it is quite clear that if the decrae is not intended to be final, then Court can extend time. In the case in hand, a prayer has been made for modification of the decree by reviewing the earlier judgment and decree and, therefore the court was seized of the case and hence had the jurisdiction to fix a fresh period of time for deposit of the pre-emption money in case of modification of the decree in acceptance of the review petition and also in case of its dismissal. In case of Mardan Shah vs. Sattara and others (PLD 1954 Lah. 87), it has been held that the time fixed by-the Court to deposit pre-emption money cannot be extended under section 148/151, C.P.C., There is no cavil with this proposition but the present case is quite distinguishable and hence ftiis judgment is not at all applicable to the facts and circumstances of the case. In case of "Khan Shah Muhammad Khan" referred to supra no doubt it has been held that the trial Court cannot extend the time fixed 'for deposit of the pre-emption money yet as noted above a default due to the act of the court has been held to be sufficient cause for fixation of fresh period of time or extend of time by the Court, hence this judgment rather supports the petitioner. Similarly, in case of Shah Wali vs. Ghulam Din and Gama and others (PLD 1966 SC 983), the principle laid down is that in order to file and appeal against a pre-emption decree it is not necessary to first deposit the decretal amount, if at the time of ultimate decision of the appeal, the court does not pass an order regarding deposit, the pre- emption money can be deposited within a reasonable time, thereafter. However, the appellate Court has the jurisdiction, while deciding the appeal to fix a period for deposit of the pre-emption money afresh or to extend the period fixed by learned trial Court. This judgment also rather supports the case of the petitioner. In case of Bhai Khan vs. Allah Bukhsh and another (1986 SCMR 849) while deciding the question as to whether the learned appellate Court while deciding the appeal should fix a further period for deposit of the pre-emption money,, their Lordships have held, that although, the court is not bound yet normally a "reasonable time" should be granted to the preemptor for deposit 6f the pre-emption money. As is clear from the following portion of the saiid judgment at page 852. as under:- "From the foregoing discussion, it is clear that the proposition that the appellate Court has power to extend time is not disputed by the High Court.rAlLthat it has held this will be exercised in fit and suitable cases and that the present case was not such a case. The submission of the appellant, however, is that in view of this Court's Judgment in Khurshtd Akbar vs. Mian Manzur Ahmad (3) the appellate Court is bound while dismissing the pre-emptor-appellant's appeal to grant ''reasonable'time" to him to deposit the balance of the pre-emption amount every case. We do not agree and. we may clarify that although jnormally the appellate Court should grant "reasonable time" to the preemptor in cases of this kind while dismissing his appeal but it can, ia exceptional cases, such as the present, refuse to exercise its discretion in this favour."
40. This judgment was further considered in case of Muhammad Irshad vs. Fazal Haq and 9 others (1991 SCMH 2449) Wherein the Hon'ble Supreme Court of Pakistan has held as under:- The law declared thus is that normally the Appellate Courts should grant reasonable time to the pre-emptor while dismissing his appeal, but,, it can ih exceptional cases refuse to exercise its discretion in his favour. Inthesaid case the reason for refusal was that the High Court had found as a fact that the pre-emptor did not have Sufficient funds with appeal to the Supreme Court on grant of leave to appeal) was interpreted in a recent full Court judgment in Said Mian and another vs. Mian Said Baghdad and another (1). It was held that this court has incidental power to pass such interlocutory orders which are aid of exercise of the jurisdiction conferred on it. It was observed that the Supreme Court stands at the apex of the judicial hierarchy in the country having all the powers of appellate C6urt and can, therefore, clearly pass and final adjudication of the cases. Applying this general rule to the facts of this case it would mean clearly that the Supreme Court had to power to grant extension of time for deposit of the amount in a matter which was duly pending before it on the filing of a petition for leave to appeal.
41. Once having granted the extension and having led the party to believe that the extension was valid and lawful for the purpose of compliance .With the conditions of the decree, ordinarily it would be against all canons of justice if the party taking advantage of the said order is made to lose that advantage retrospectively on ultimate disposal of his petition for special leave to appeal. There is no denying the efficacy of the principle in these circumstances that a party would not be allowed to suffer on account of an act of court. Same would be the result if Order XLV, C.P.C, was applicable.
42. In the same judgment at page 290, it has further been held as under:- "Apart from the aforediscussed aspects, one fallacy in the argument of he learned counsel for the appellant remains obvious. He was unable to suggest any satisfactory remedy solution in a case where on a petition for leave to appeal filed by a vendee-judgment-debator, the Supreme Court suspends the decree and the plaintiff decree-holder thus fails to deposit the amount within the time fixed by the High Court; but ultimately leave to appeal petition filed by (vendee judgment- debtors) is dismissed on a date beyond the fixed period. If the entire controversy is to be decided on the proposition canvassed by the learned counsel with regard to the effectiveness of the interim orders, depending upon the acceptance or otherwise of the leave to appeal then the pre-emptor would not be able to satisfy the decree and such a result would undoubtedly be without his fault.
43. Another issue raised by the learned counsel for the appellant was that as a result of the failure of a plaintiff to deposit the amount within the fixed period, a decree coming into existence by statutory force in favour of the vendee (who earlier was the judgment-debtor), cannot be taken away by an interim order. The learned counsel, with respect, ignored the peculiar nature of the so-called success/decree which the vendee judgment-debtor gains by the default of the plaintiff pre- emptor. It is not on the basis of a decision on merits in favour of the vendee but is on account of peculiar procedural aspects of the lis in a pre-emption case. As observed in the case of Shah Wali, a decree passed in favour of the successful pre-emptor, is of a "composite and contingent character". If the pre-emptor satisfies the condition imposed by the court on him with regard to the deposit of the preemption money within a specified period, the decree for possession would become operative in his favour. If on the other hand, he commits a default in that respect, the decree dismissing the suit becomes effective. The contingent character of the decree is essentially on account of the reasons that the court fixes a certain date/period regarding deposit of pre- emption money. This, contingency obviously arises on account of an order of the court. It will not be possible to accept an argument that the position would not be again reversed when an appellate court passes an order, which is within its jurisdiction and power, to extend the time. The composite nature of the decree, another significant aspect in addition to its being contingent, also has to be kept in view. Although the decree holder is the pre-emptor plaintiff, yet an important initial step for its execution is to be taken by him that (the decree-holder) is to satisfy the decree by making payment by a certain date fixed by the court-whether it is by appellate or trial Court, and, is by way of an interim measure or final disposal, in this context, would not make any difference."
44. A resume of the aforementioned judgments clearly demonstrate that if a lis is pending before the appellate Court with jurisdiction in a pre-emption matter and the period for deposit of the pre- emption money expired during the pendency of the lis, ordinarily the learned appellate Court should fix a reasonable time while deciding the lis even if the lis is decided against the pre-emptor.
45. Grant is a rule and refusal is an exception. In the case in hand, a review petition had been pending before the learned appellate Court which was dismissed by the learned Court. In such a situation it was necessary for the learned lower appellate court to have fixed a period for deposit of the pre- emption money afresh inasmuch as the period fixed by the court expired during the pendency of the review petition and the total pre-emption money was not deposited due to the interim order passed by the court. Hence the learned lower appellate court has committed an error of exercise of jurisdiction, by dismissing the suit and by not fixing a fresh period for deposit of the pre-emption money by the decree-holder while dismissing the review petition.
46. Arguments of the learned counsel for the respondents to the effect that as the total decretal amount has not been deposited till today, the revision petition is liable to be dismissed, is also misconceived. There is no subsisting decree in favour of the petitioner and the suit has rather been dismissed, therefore, there was no occasion for the petitioner to have deposited the total sale price.
47. He has already deposited the sale price to the extent of his own share therefore it cannot be said that there is any default or lapse on the part of the petitioner on the basis whereof the civil revision could be dismissed. Judgment cited by the learned counsel rendered in case of Manzur Hussain vs. Muhammad Ali and another (1989 SCMR 1498) is not at all applicable to the facts and circumstances of this case. In Rev. C38 Sheraz Ata lillah Khan K Messrs Shahjahan Khan [Vol. Xll (Ch. Mushtaq Ahmad Khan, J) the cited cases an appeal filed by the pre-emptor had been dismissed by the learned trial court and within a "reasonable time" thereafter the pre-emptor had not deposited the pre-emption money till the date of hearing of the CPSLA in the Supreme Court which was taken up for hearing after a period of about six years. Conduct of the pre-emptor was take note of the CPSLA was dismissed due to this conduct of the pre*emptor. In the case in hand, there is no subsisting decree in the field and the suit has been dismissed by the learned lower appellate court, hence facts of he cited judgment are quite distinguishable and are not attracted to the case in hand. Similarly other judgments, cited by the learned counsel for the respondents namely case of Muhammad Ishaq and Mst. Safia Begum (1992 SCMIC1629) is also distinguishable and is not applicable to the facts of he case. In the referred case,, in a suit for specific performance of the contract an agreement for sale was, held to have, stood frustrated^as a whole due to the withdrawal of one of the vendees from the agreement in whose favour the sale deed has to be executed in pursuance of the/agreement for sale. As hgld earlier, exercise of right of pre-emption is not a right of purchase nor is equal to the right to get an agreement (lor sale to be specifically enforced. Consequently, the principle of law laid down in the judgmenjt referred to by the learned counsel for the petitioners is distinguishable and hence is,.Not relevant for the purpose of. Decision of the controversy which has arisen in this civil revision.
48. Arggments, of (he Jearned counsel for the petitioner that (he discretion having been exercised by the learned AddJ. District Judge cannot be interfered with ;by this, court is also misconceived.
49. Learned Addl. District Judge has in fact refused to exerci^q a jurisdiction vested in him under the law and by dismissing the suit has atied beyond jurisdiction. It is a case which deafly fads within the provisions of section ,115 of C.P.C, and hence attracts, the exercise of revisional jurisdiction of this Court Even PtherWisera discretion has to be exercised judiciously and on the basis of valid and sound reasons. Even a discretionary order based on unsound and Illegal reasons contrary to the law declared by the superior courts, is illegal and without lawful authority and is liable to be interfered with even in exercise of writ jurisdiction noCtb speak of the exercise of revisional jurisdiction of this Court. It has been held in case of Ghulam Nabi and others vs. Seth Muhammad Yaqub (PLD 1983 SC 344) that the exercise of the discretionary jurisdiction cannot be arbitrary and has to be based on sound and reasonable grounds guided by the judicial principles. At page 357 of the said report it has been held as under:- "And lastly it was urged that the jurisdiction of the court to decree specific performance being discretionary under section 22 of the Specific Relief Act, the Court ought not to have; considering the plaintiffs conduct, granted such relief; The jurisdiction under section 22 is discretionary only in the sense that it cannot be claimed as a matter of right. As enjoined by the section itself, the exercise of the discretion is not to'be arbitrary but sound and reasonable, guided by judicial principles and capable of correction byia. Court of appeal. The exercise of the discretion to grant or refuse to grant relief will,