A pre-emotion suit filed by Khawaja Ghulam Mueen-ud-Din against Qadir Bakhsh etc. on 20-4- 1976 was dismissed on 12-2-1991 by Mr. Nazir Ahmad Ansari, Civil Judge Ist Class, Vehari, but the judgment and decree dated 12-2-1991 were set aside on 19-7-1984 by Ch. Abdul Sattar, Additional District Judgd, Vehari. The present appeal was preferred by Wadir Bakhsh etc. defendants-vendees against Kh. Ghulam Mueen-ud-Din plaintiff-pre-emptor on 2-8-1984. In the course of the proceedings of the appeal, the plaintiff-- respondent died and was replaced by his heirs, Ghulam Nizam-ud-Din etc.
2. The land in suit measures 393 Kanals and 7 Marlas, and is situate in Village Qadirpur, District Vehari. It was District Multan when the suit was filed. Ubaida d/o Nizam Din sold away the land through a registered deed of sale dated 24-4-1975, for an ostensible consideration of Rs.11,34,000.
The sale was pre-emoted by Khawaja Ghulam Mueen-ud-Din, pleading preferential pre-emotive right, by reason of being real brother of the owner-alienor, as also a co-sharer in the `Khata'.
According to the plaintiff, the sale price of the suit land actually paid was Rs.1;90,000 and the same was the market-value of the land, in reality. The suit was contested, although the defendants- vendees could not take any serious exception to the superiority of the plaintiff-pre-emptor, in so far as enjoyment of right of pre-emotion was concerned. The defendants-- vendees were adamant that they had in actual practice parted with Rs.11,34,400, the consideration money mentioned in the registered instrument of sale.. They also laid claim to an amount of Rs.50,000, having been spent by them on improvement of land, erection of structures and requisite installations, as also ancillary expenses incurred by them as district counsel fee etc. Much later, on 19-4-1979, the defendants prayed for amendment of the written statement, dated 22-6-1976 but the prayer was turned down on 7-10-1979 by Mr. S.M. Elahi, Civil Judge, Mailsi. In exercise of his revisional jurisdiction, the learned District Judge, Vehari, Ch. Muhammad Saeed Akhtar reversed the order and on 23-9-1980 allowed the application of the defendants for amendment of their pleadings. Amended written statement was submitted, on 28-10-1980 in the light whereof certain issues emerged afresh, the same being issues Nos. 5 and 6, and these indeed are the only issues, respecting which there has been grim contest between the parties.
3. For the sake of reference and convenience the issues may be reproduced below:--
(1) Whether the defendants have made any improvement on the suit-- property; if so, its extent and value and effect? OD.
(2) Whether the plaintiff has got superior right of pre-emotion as against the vendees? O.P.
(3) Whether the sale-price of Rs.11,34,000 was fixed bona fide and actually paid? OD.
(4) What was the market-value of the suit-land at the time of sale? O.Parties.
(5)Whether the suit is barred by time, on account of court-fee having been paid after the institution of the suit? OD. .
(6)Whether there existed no legal justification for the non-deposit of 1/5th amount, and extension in time for its deposit, coupled with substitution by or modification with security? OD.
(7)Relief.
The trial Judge gave findings as regards issues Nos.l and 2 against the defendants-vendees, and all the other issues in their favour, issue No.4 having become redundant. The same resulted in dismissal of the suit. Findings under issues Nos. 5 and 6 were reversed by the first appellate Court (learned Additional District Judge, Vehari), in consequence whereof the plaintiff-pre--emptor's suit was decreed and he was directed to make payment of the entire sale-price, in the amount of Rs.11,34,000 within a period of two months from the date of the judgment dated 19-7-1984.
4. It is a source of distress that in this case, it has been in the utmost endeavour of the defendants- vendees to prolong the matter over as long a period as it was possible for them. They had sought amendment of their written statement about 3 years after the institution of suit. The suit was decided in their favour by the trial Court in February, 1981, and against them by the first appellate Court in July, 1984. They filed this appeal towards the end of July, 1984, through a learned Advocate of Multan. They then engaged a senior lawyer from Lahore, who appeared initially in October, 1984.
He also found it convenient to make appearance on 1-12-1984 and then on 19-3-1985, but thereafter he did never find time to attend the Court for arguing the appeal, over about 9 years, and when the appellants ultimately were hard --pressed to bring their counsel, he appeared on 29-1-1994 and addressed the Court at certain length. On the following day, he continued his address, but as he was not available further at Multan, the case was adjourned to 15-2-1994, and it was directed that hearing would continue from day-to-day, since from the manner in which the address commenced and continued, it appeared that the same would consume many days more to conclude. On 15-2-1994, again, the. learned counsel was busy before the Supreme Court, and the matter had to be adjourned to 19-3-1994, when the learned counsel did appear and expressed the desire to add to -his submissions by tendering arguments in writing. The process of submission of written arguments and counter-arguments also took quite some time. In the light of the arguments, addressed orally and submitted in writing, I proceed to examine briefly the contentions raised in appeal and. repelled by the respondents.
5. Learned counsel for the appellants has, at the very outset, taken exception to the competence of the appeal, that was preferred by the plaintiff--pre-emptor before the first appellate Court. It was signed by one Allah Ditta, acting as general attorney of Khawaja Ghulam Mueen-ud-Din. Learned Advocates, who submitted the memorandum of appeal before the learned District Judge, Vehari, on 23-6-1986, were also shown to have been engaged by Allah Ditta, although he had no authority to do it, according to the learned counsel for the defendants-vendees, appellants before this Court.
Attention of the Court has been drawn to the general power of attorney, by which Khawaja Ghulam Mueen-ud-Din had appointed Allah Ditta as his general attorney for managing his agricultural land, situate in District Multan, and for instituting and pursuing cases in Courts, from inception to the highest level. It is to be pointed out that this land is situate in Mailsi Tehsil, which at the time of institution of suit was a Sub-Division of District Multan, and it was on 1-7-1976, when Vehari District was carved out of the Multan District, Mailsi became a part of Vehari District. The suit land, it is pointed out had not yet become a part of the proprietorship of the plaintiff, and it, therefore, could not be treated to be covered by the power of attorney, granted by Khawaja Ghulam Mueen-ud-Din to Allah Ditta. It is, however, to be borne in mind that the power of attorney appeared to have been drafted in somewhat loose language and in general terms, and it did not specifically exclude the property in question, as there was no stipulation made to that effect in the power of attorney, by which Allah Ditta was. in fact being accredited as Mueen-ud-Din's agent or attorney to act generally on his behalf. It was general and not a special power of attorney, and if at all objection could be raised against authority of the general attorney, the person who had executed the instrument in favour of Allah Ditta was empowered to have done it. If Allah Ditta had misused the power of attorney or travelled beyond his domain, he could have been stopped from doing it by the executant. Purchasers of the land, who were sued by the pre-emptor, had nothing to do with the power of attorney and no prejudice had admittedly been caused to them by reason of a defect or drawback, if any, inherent in the instrument.
6.Learned counsel for the respondents in appeal has rightly contended that the objection being raised by the appellants is too technical and must not be permitted to prevail and stifle ultimate ends of. justice. He has placed reliance on Liaquat Hayat and others v. Muhammad Sawar and others (1985 SCM R 1386) and Ismail and another v. Mst. Razia Begum and 3 others (1981 SCM R 687), in submitting that the plaintiff had all along been pursuing his cause in right earnest, and after his death, his successors-in-interest have been prosecuting this litigation with diligence, and if it may be assumed that there was some minor defect in the general power of attorney, in favour of Allah Ditta, the same must be treated to be merely an irregularity, which cannot have any adverse effect on the pre-emptive right of the plaintiff, and evidently by reason of the so-called defect, the defendants in the suit similarly had not been prejudiced in any manner, and no valuable right had accrued to them on that count.
7.It is also submitted that such an objection had not been raised before the first appellate Court itself, for if it had been done, it must have been adverted to. It cannot be allowed to be agitated before this Court at this juncture. If it had been taken up, at proper time, a permissible mode could be adopted to rectify the defect, if any; and at a belated stage it cannot be permitted to be highlighted and must be considered to be a futile and indefensible bid, made in helplessness to dislodge the claim of an eligible litigant on a frivolous ground, 1986 SCM R 1427, Qazi Altaf Hussain and another v. Ashfaq Hussain is the relevant authority on the point. To repel the assertion, the learned counsel for the appellants (respondents before the first appellate Court) has drawn attention of this Court to an affidavit sworn and submitted to that effect by Malik Iqbal Rasool, Advocate, Multan, on 24-7-1984 (existing at pages 36/37 of this file). Malik Iqbal Rasool stated that he had urged before the first appellate Court that the appeal was violative of the provisions of Order 41, rule 1, C.P.C. One would not doubt the correctness of the statement made by the learned Advocate and his credentials; but it is possible that he might have just passingly and feebly urged, this point, and it escaped the notice of the learned Additional District Judge, who decided the appeal on 19-7-1984. He had dealt with more formidable contentions, raised before him, by the learned counsel for the parties, and he could also have examined the aforesaid objection and determined its effect on the course and result of the appeal. Similarly as the statement made by the learned counsel in the form of affidavit is being accorded sanctity by this Court, the proceedings which took place in the appellate Court below, from beginning to end, must also be held to be sacrosanct. I do not think that the objection has any weight of material consequence.
8. The most important and material issues are Nos. 5 and 6, respecting which the two Courts below have recorded divergent findings. The suit was instituted on 22-4-1976. On examining the office report, on the following day, i.e. 23-4-1976, the learned trial Judge ordered the plaintiff-pre-emptor to make deposit of Zar-e-Panjam in the amount of Rs.2,26,800 before 12-6-1976. No direction about payment of court-fee was made. On the next date, i.e. 12-6-1976, the Court ordered the plaintiff to get prepared the statement of annual net profits within a month. Calculating on such basis, the plaintiff made good the deficiency in the court-fee to the tune of Rs.14,900, on 10-7-1976. Total value of court-fee stamps tendered by the plaintiff comes to Rs.15,012.50. The learned trial Judge was of the view that initially a ludicrously low valuation for purpose was given and even afterwards the deficiency was calculated at random and made good on a fictitious and no tangible basis. The trial Judge also took notice of the fact that the plaintiff had not regularly sought extension in time by making an application under section 148/149, C.P.C. and negligence on his part must be taken to be contumacious.
9. The learned Additional District Judge did not agree with the learned Civil Judge. It is to be noted that if there had been any doubt about correctness of the assessment made by the plaintiff, and it was not correct, the defendants--vendees, in cultivating possession of the land, must have ventured to have the same worked out by approaching the Revenue officials. No such effort was made by them, and it would follow that Fard Khalis Munafa had rightly been got prepared by the plaintiff, who had hurried to make payment of the requisite amount of court-fee. Under provisions of Order 7, rule 11, C.P.C., a plaint is liable to rejection on account of deficient court-fee, only when the plaintiff fails to make good the deficiency, even on having been allowed an opportunity for the object by the Court. If case-law is needed, 1990 SCM R 968 may be quoted. The Hon'ble Supreme Court's view expressed in Walayat Khatoon's case, reported as PLD 1979 SC 1921, is no longer the law, for in subsequent rulings, as PLD 1983 SC 227 Mst. Parveen v. Jamshaid Begum and PLD 1984 SC 289 Siddique Khan v. Shakoor Khan, a contrary view was adqpted, and the settled law now is that if a suit is instituted in time, on payment of even deficient court-fee, and the deficiency is made good after--wards, the suit cannot be treated as having been barred by the Law of Limitation. I would uphold the finding of the first appellate Court, reversing that of the trial Court, under issue No. 5. The learned Civil Judge had fallen in error in observing that even payment of the deficient court-fee, by the due date, by the plaintiff would be of no avail to him.
10. One-fifth pre-emption money had to be deposited by the plaintiff before 12-6-1976. Before that, on 7-6-1976, the plaintiff applied to the Court for extension in time, stating that the Government had purchased wheat from him and had not, by then, made payment of the price and because of paucity of funds he had not been able to comply with the order dated 23-4-1976. The application was accompanied by an affidavit. The application (dated 7-6-1976) was disposed on 10-6-1976.
The trial Judge, in view of the reasons stated in the application, felt persuaded to allow the prayer and he granted extension of only 10 days. Deposit was directed to be made before 22-6-1976. Next date was 12-6-1976. As the deposit was required to be made before 12-6-1976, the plaintiff's prayer had to be dealt with, before that date, and it was granted on 10-6-1976, as 11th of June, probably, was Friday.
11. The case was adjourned from 12-6-1976 to 13-7-1976. Another application, however, was made by the plaintiff, on 21-6-1976, with a request that he be permitted to furnish security instead of making deposit of Zar-e--Panjam in cash. Readiness was also expressed by the plaintiff to mortgage his landed property with the Court. He said, he was prepared to furnish a security bond in the sum of five lac rupees, instead of the actual amount of Rs.2,26,800 and an affidavit was also submitted, stating that it had not been possible for the plaintiff to arrange for funds for making payment of Zar-e-Panjam, as due to heavy rains he had not been able to despatch his next wheat consignment to the Government Centre, set up for the purpose, and the Government had also not paid the amount of the previous consignment of wheat purchased from him. Application dated 21- 6-1976 was ordered to be put up with the file on 22-6-1976, and the learned trial Court passed the order, permitting the plaintiff to furnish the requisite security. A very important fact, relevant to the issue, must be taken note of. 22-6-1976 was regular date of hearing in the suit, when the learned counsel for the parties were in attendance in Court and the aforesaid order was passed by the Court in their presence; and presumption would be that the learned counsel for the defendants even had been heard in regard to the plaintiff's prayer in question. It has strenuously been urged by the learned counsel for the defendants-appellants that the order had been passed in their absence and without hearing them. I do not think, they are correct there. Even if, however, what is maintained has any amount of force, the fact remains that the order was regularly passed, and it cannot be urged that it was incompetently made. If the defendants had felt aggrieved over the order and the same had in any way caused prejudice to their interests, it was open 'to them to have agitated the matter in the higher Court. It was a revisable order; but the defendants did not bring it under challenge in any upper Court. The learned Civil Judge, while dealing with issue No. 6, held that it would be taken that deposit of Zar-e-Panjam had not duly been made and the orders extending the time for making the deposit and then substituting the cash deposit by personal security were without legal justification. It is indeed odd that the learned Civil Judge who was rendering final decision on 12-2-1981 was reversing the order of his own Court, and he acted as if he was the higher G Court and had the competence to find fault with the order of his predecess6r.
Whether or not the orders in question were made on any valid premises, the learned Civil Judge was not empowered to question, alter or undo the same, although a higher Court could do it. The learned first appellate Court has rightly observed that the orders in question had not been nullified in appeal or revision by any competent Court and had attained finality, and the learned Civil Judge was no body to review the order of the same Court and draw adverse inferences from the, orders passed by his predecessor. It was, however, open to the learned trial Court to vary or modify its order previously passed respecting deposit of Zar-e-Panjam in the course of the proceedings of the suit. Time may be extended and plaintiff may be permitted to furnish security instead of making deposit in cash. Court had discretion in the matter. Manzoor Hussain v. Atiq-ur-Rehman (NLR 1979 Civil SC 812) and Ch. Zulfiqar v. Mian Akhtar Islam (PLD 1967 SC 418) may be referred to in this regard.
12. The defendants,vendees have ventured to take exception to the orders of the trial Court, much later, through amendment of their pleadings, and were not vigilant enough to have assailed the said orders, by pursuing the permissible course, at the opportune moment. Allowing them to amend their pleadings did not tentamount to acceptance of their objections, which had, in any case, to be examined and determined at the time of final decision of the case. The Court had the powers to vary its original orders and exercise a fresh option. Discretion of the trial Court in the matter is absolute and cannot be circumscribed or restricted by any extraneous consideration, divorced from statutory provisions. Section 23(4) of the Pre-emption Act does not set forth any grounds on which the order for payment of Zar-e-Panjam may be varied or substituted. Reliance in this regard by the learned counsel for the respondents has been placed on Muhammad Hussain v.
ADJ, Kasur and others (1982 CLC 1211) and Khuda Bakhsh v. Sultan Mahmood (1985 SCM R 192). The view taken in the matter by the first appellate Court, differing with the opinion of the trial Court, is endorsed.
13. The upshot of the above discussion is that the appeal has no merit; and is hereby dismissed with costs throughout.