1. ' Subah Sadiq and Muhammad Hanif were rival pre-emptors. Question for decision in the second appeal between them was, whether consent decree in favour of Subah Sadiq passed in a pre- emption suit filed by him against the vendee Dullah son of Fateh Din was binding on Muhammad Hanif, rival preemptor and whether its terms as to the payment of purchase-price by a specified date were fulfilled. This question emerges from the facts and circumstances enumerated below.
2. ' Dullah son of Umar Din was owner of 37 Kanals 3 Marlas of land at Mauza Katcha Pakka in Tehsil Kasur of the then District Lahore. By Mutation No,1069, attested on 28-12-1967, he sold above land to Dullah son of Fateh Din for the sale-price of Rs,7,000.
3. ' Subah Sadiq claiming to be son of the vendor, claimed pre-emption in respect of the sale made by his father and instituted a pre-emption suit for it, on 2-5-1968, in the Civil Court at Kasur. On 6- 11-1968, vendee Dullah son of Fateh Din confessed judgment in favour of the pre-emptor upon payment of Rs,12,000 to him. On the basis of statements of the parties to the pre-emption suit, the trial Court decreed pre-emption in respect of the land in suit to Subah Sadiq upon his paying Rs,12,000 to the defendant-vendee till 30-1-1969, and, in default observed that the pre-emption suit shall be deemed to have been dismissed. Consent decree was implemented in Revenue Records by attestation of Mutation No,1181 on 31-7-1970. It was alleged that purchase-price was paid out of Court to the vendee, on 25-12-1968, and a receipt of it was obtained from him. It may be observed that alongwith the vendee of the land in suit, the vendor of the land was impleaded as defendant No,2 in the pre-emption suit filed by Suba Sadiq.
4. ' On 19-12-1968, Muhammad Hanif also claimed pre-emption in respect of the aforenoticed sale of the land on the ground of being a co-sharer with the vendor. Upon discovery of a consent decree passed in the pre-emption suit in favour of Subah Sadiq, he was impleaded as defendant No,2 in the preemption suit. It was averred that Subah Sadiq had not paid/deposited the purchase-price in time fixed in the pre-emption decree and, therefore, his preemption suit shall be deemed to have been dismissed. It may be observed that Subah Sadiq was joined in the suit on his own application filed under Order 1, Rule 10 of Civil P.C.
5. ' Vendee of the land and rival pre-emptor Subah Sadiq submitted a joint written-statement. It was pleased that land in suit, in fact, was sold for Rs,12,000 and in the pre-emption suit instituted by Subah Sadiq, the vendee-defendant had agreed for a pre-emption decree upon payment of the above sale-price to him which was paid to him, on 25-12-1968, out of Court. Plea of estopple was also raised against Muhammad Hanif rival pre-emptor. Earlier to the filing of joint written- statement, Dullah son of Fatch Din vendee had submitted his own written statement in which similar facts were stated by him. Pre-emption suit was tried on following issues settled on 13-11- 1971:-
(1) Whether the plaintiff has superior right of pre-emption? O.P.P.
(2) Whether the sale-price of Rs,12,000 was fixed in good faith and actually paid? O.P.D.
(3) If issue No,2 is not proved, what is the market value or actual sale-price of the land in suit? On parties.
(4) Whether the pre-emption suit of defendant No,2 stood dismissed on 30-1-1969 as mentioned in paragraph 3-A of the plaint and with what effect? O.P.P.
6. ' On 8-7-1972, counsel for the plaintiff (Muhammad Hanif) tendered copy of Mutation No,1069 Exh.P.1; copy of Jamabandi for the year 1966-67 Exh. P.2, copy of the order dated 6-11-1968 Exh. P3, copy of the decree-sheet dated 6-11-1968 Exh.P.4 copy of receipt dated 25-12-1968 Exh. P.5 and closed affirmative evidence on behalf of plaintiff. Statement of the plaintiff in affirmative as well as in rebuttal was reserved till after close of defendants' evidence. Thereupon, the defendants entered upon defence. D.W.1 gave evidence that land in suit was sold for Rs,12,000 which were paid in his presence. In cross-examination to the plaintiff's counsel, the witness deposed that Subah Sadiq had paid the price to Dullah after passing of pre-emption decree in his favour. Mumtaz Ahmad, Mukhtar-e-Khas of the defendant entered the witness-box as D.W.2. He deposed that the land in suit was sold for Rs,12,000 in his presence; Subah Sadiq claimed pre-emption in respect of the sale and had paid the sale-price in the sum of Rs,12,000 to Dullah in terms of decree passed in his favour. With his statement, the defendants' evidence was closed. In rebuttal, plaintiff produced Ghulam Muhammad P.W.1 who deposed that land in suit was sold by Dullah son of Umar Din for the sale-price of Rs,7,000 in his presence. Cross-examination of his statement was mostly directed towards the payment of the sale-price or The market value of the land in suit. Muhammad Hanif plaintiff himself appeared as P.W.2. The witness deposed that in respect of the pre-emptive sale, Subah Sadiq had instituted a suit which was decreed in his favour but he did not pay or deposit the sale-price in terms of pre-emption decree in his favour and had fraudulently managed a fake receipt for evidencing the payment of the sale-price to get the land to his detriment. In the closing statement, copy of the plaint in the preemption suit filed by Subah Sadiq Exh. P.6 was tendered in evidence. It was significant to observe that neither Subah Sadiq himself appeared as a witness at the trial nor he gave evidence about the material events in the pre-emption case filed by him.
7. Dullah son of Fateh Din vendee also did not personally appear in the witness-box to explain the material facts of the case.
8. ' On scrutiny of record, the trial Court upon reference to a mutation attested on 30-7-1993 existing on the file of another Civil Suit No,1211/1 of 1970 titled Subah Sadiq v. Muhammad Hanif and others found that the consent decree passed in the pre-emption suit was observed in the matter of payment of the sale-price in time and, therefore, the plaintiff of the pre-emption suit namely Muhammad Hanif had no locus standi to object to the mode of payment of pre-emption money and his objection, therefore, could not be considered. The view of the trial Court was that since the plaintiff was not a party to the pre-emption suit culminating in a consent decree, he was precluded from raising the objection regarding payment under it. Only the defendant No,1 namely Dullah son of Fateh Din (vendee) could object. This finding was recorded by it under issue No,4. Under issue No,1, the trial Court found that Subah Sadiq as son of the vendor was possessed of a better right and the sale-price of the land in suit was fixed at Rs,7,000 under issue No,2. Separate finding on issue No,3 regarding market value of the land was not recorded by the trial Court. Consequent upon decision on issues Nos.1 and 4, the trial Court dismissed the pre-emption suit filed by Muhammad Hanif on 3-5-1973. He preferred an appeal from the decision of the trial Court to learned District Judge, Kasur. I however, appeal was heard by a learned Additional District Judge who on 26-11-1973, disagreed with the trial Court and substituted decree for pre-emption in respect of the land in suit to Muhammad Hanif respondent conditional upon his paying Rs,7,000 as sale- price of the land by or on 19-12-1973. Thereupon, Dullah son Fateh Din (vendee) and Subah Sadiq (rival pre-emptor) preferred a joint appeal to this Court. It was admitted on 16-4-1974. Dullah appellant No,1 died in course of second appeal. His legal representatives were substituted for him on record.
9. ' On behalf of the appellants, it was urged by their learned counsel that in absence of a contrary expression in the consent decree passed in the preemption suit instituted by Subah Sadiq on 6-11- 1968 regarding mode of payment of the purchase-price there was no bar for its payment to the vendee out of Court. It was also urged that the purchase-price was paid by Subah Sadiq to the vendee on 25-12-1968 vide copy of a receipt Exh. P.5 and factum of payment was notified to the Court passing the pre-emption decree. As regards the contention that purchase-price could be paid out of Court and certified, he referred to Noor Ahmad and another v. Muhammad Ramzan and another PLD 1973 Baghdad-ul-Jadid 42. In the referred case, upon survey of the previous case law, the Court in para.9 of its judgment observed "The money paid out of Court cannot be in strict compliance of the terms of the decree, but if tne money has been so paid and the payment had been duly certified by the Court, then the payment can be considered as sufficient compliance of the decree. It is true that technicalities are relevant to the law of pre-emption, and that a person, who wishes to avail himself of a right under such law, is required to exercise the utmost vigilance and to take care to see that he complies strictly with all the conditions imposed upon him.
10. Nevertheless, it will be making a fetish of such technicality to hold, otherwise in the present case".
11. Earlier to it, this Court had viewed the same matter in Painda Khan v. Tiwana and another PLD 1962 (W.P.) Lahore 92. On the basis of the above decision, learned counsel vehemently argued that payment of purchase-price out of Court to the vendee and its certification were a substantial compliance with the terms of pre-emption decree passed on consent in favour of Subah Sadiq and the respondent was precluded to question it.
12. ' For the respondent, learned counsel argued that payment of the purchase-price out of Court offended provisions in Rule 14 of Order XXII, Civil P.C. And Order XXI, Rule 2, Civil P.C. Was inapplicable to a pre-emption decree. It was further argued that receipt Exh.P.5 was a spurious document and was prepared in joint concert by the appellants to knock the respondent out of the field.
13. ' Before adverting to the crucial proposition canvassed at the hearing; whether purchase-price in a pre-emption decree could be paid out of Court to the vendee within the time limit fixed in it, I shall like to pre-face the discussion by preliminary observations. These were that Subah Sadiq filed the pre-emption suit on 2-5-1968. Vendee agreed for a decree in his favour subject to payment of Rs,12,000 by 30-1-1969. Sale price entered in the sale-mutation was admittedly Rs,7,000.
14. Nonetheless, prucahse-price was agreed at Rs,12,000 between them. Receipt Exh.P.5 showed that Rs,12,000 were paid by Subah Sadiq to Dullah son of Fateh Din on 25-12-1968. Record gave no indication whether Zar-e-Panjam was deposited by Subah Sadiq in the pre-emption suit filed by him and if the same was deposited, the mode for its disposal. Exh.P.5 did not throw any light on it.
15. Receipt Exh.P.5 was scribed by Mumtaz Ahmad and was signed by Ch. Muhammad Younas Balut, Advocate of Kasur and thumb-marked by Dullah son of Fateh Din. Certified copy of it was taken from the record of another civil suit and put on record of this case. It was not clear on present record, whether the payment of the purchase-price was ever certified by the Court and recorded by it. Having made these observations, I shall revert to the basic proposition about the validity of payment of purchase-price under pre-emption decree out of Court to the vendee and its effect on the rights of the parties.
16. ' Conflict of judicial opinion between two Single Benches of this Court expressed in cases reported as PLD 1962 (W.P.) Lahore 92, PLD 1973 Baghdad-ul-Jadid 42 was finally resolved by a Division Bench of this Court, in Ghulam Mohyuddin v. Muhammad Bakhsh and another PLD 1979 Lahore 766.
17. Leading judgment was delivered by my Lord Mr. Justice Muhammad Afzal Zullah who later became Chief Justice of the Supreme Court of Pakistan. Mr. Justice Muhammad Ilyas agreed with him. Upon survey of conspectus of authorities on the point, the view taken was that payment of purchase- price in a pre-emption decree out of Court to the vendee offended the clear provisions of Order XX, Rule 14 of Civil P.C. And Rule 2 of Order XXI, Civil P.C. Was inapplicable to a pre-emption decree. My learned brother Khalil-ul-Rehman Khan, J. Followed this view in Muhammad Rafique v. Barkat Ali and others 1984 CLC 3049 (Lahore). It was held that payment of purchaselnoney under decree in pre-emption suit in any form out of Court was not lawful compliance with Order XX, Rule 14 of Civil P.C. And certificate of such payment by the Court would be of no avail. Learned counsel for the parties did not invite my attention to any other decision from this Court or elsewhere in Pakistan on the point and I also was unable to lay my hands on any. However, in Nath Singh v. Narinder Singh AIR 1964 Punjab 305, a Division Bench of the Indian Punjab High Court took the view that where under a compromise decree in a suit for pre-emption, the person having a superior right of pre- emption was to get the right of possession on payment of the amount of purchase-money to the vendecs by a certain date, the payment of the amount to the vendees before the specified date amounts to a proper compliance with the decree. The fact that the pre-emptor made the payment outside the Court and did not deposit the amount in Court before the due date or that he did not get the payment certified by the Court before the due date was immaterial. Direction to deposit money in Court which was not given in the decree cannot be deemed to have been incorporated in the decree by virtue of Order XX, Rule 14, Civil P.C. In this case, a distinction was made that in the compromise decree, direction for payment, out of Court was not included in the pre-emption decree. In Sardul Singh and another v. Harbhaian Singh and others AIR 1973 Punjab and Haryana 319, it was observed that "It is apparently for the decree-holder and the judgment-debtor to achieve satisfaction of the decree, as mutually desired or agreed upon between them. Once the decree stands satisfied, then an argument regarding non-payment of full decretal amount cannot arise. That argument can arise only, if the decree-holder did not accept the short payment in full satisfaction of the decree. I am in respectful agreement with the view enunciated in the Full Bench case that it is open for the decree-holder and the judgment-debtor to change or adjust the decree. In the present case, the decreeholder was satisfied with the payment of the decretal amount, even when the amount so paid fell short of the decretal amount, and discharged the judgment-debtor of his burden". However, despite expression of a contrary judicial opinion from the post-partition jurisdiction in India, the view enunciated by the Division Bench of this Court in case of Ghulam Mohy-udDin held the ground and is binding. It positively held that payment of purchase- price out of Court and its certification was not a true compliance with the pre-cmption decree, in terms of Order XX, Rule 14, Civil P.C. This being the law, rival pre-emptor shall not be deemed to have truly fulfilled the terms of pre-emption decree passed in his favour. In consequence, his suit shall be considered to have been dismissed by leaving clear ground for the respondent to succeed in his pre-emption suit. Now, a word on the locus standi of the respondent to object to the mode of payment of purchase-price out of Court by the rival pre-emptor. No law barred him to raise an objection to it. He was not a party to the pre-emption suit instituted by Subah Sadiq. It was instituted much prior to the pre-emption suit brought by him . Even before its institution, consent decree was already passed in favour of Subah Sadiq. The consent decree, therefore, could not be held binding on the respondent. Doctrine of superior diligence was inapplicable for the benefit of the rival pre-emptor. Such payment of purchase-price out of Court hit the respondent to succeed, rather it was a main hurdle in his way, he could justifiably challenge the mode of payment of pre- emption money out of Court. The trial Court had erroneously found him disentitled to raise objection on this score. Consequently, the judgment rendered by it could not be upheld.
18. ' Having regard to the aforesaid, second appeal is found to have no merit in it. Consequently, it is dismissed with costs. Records be returned.