1. ' WALI MUHAMMAD KHAN, J.---Habibullah Khan, petitioner herein, seeks leave to appeal against the judgment dated 28-9-1993 passed by a learned Division Bench of the Peshawar High Court, whereby Writ Petition No, 46-D of 1992 filed by him questioning the order of the District Judge dated 23-10-1991 revising the order of the trial Court relating to the deposit of preemption money, was dismissed.
2. ' The facts relevant to the disposal of the instant petition are that in a suit for possession through pre-emption filed by the petitioner, the learned trial Court, vide order dated 11-5-1991, ordered the pre-emptor/petitioner to deposit Rs,95,198 in cash and for the remaining Rs,1,90,392 to furnish bank guarantee or the entire amount in cash prior to 8-6-1991. An application for amendment of this order was filed by the petitioner on 25-5-1991 alleging that the market value of the suit land is Rs,62,026.89 as declared in Suit No, 163/1 and that he may be directed to deposit the said amount in cash prior to the date already fixed. Notice of this application was issued to the respondents who contested the same, however, the learned trial Court vide order dated 3-6-1991 modified the earlier order and directed the petitioner to deposit 1/3 of Rs,62,026.89 in cash and to furnish back guarantee for the remaining 2/3 thereof. The respondents preferred revision petition before the District Judge which was accepted, the subsequent order of the trial Court set aside, and original order dated 11-5-1991 restored. The writ petition filed against it, as stated earlier, could not succeed and hence the instant petition for leave to appeal.
3. ' We have heard Mr. Abdul Aziz Kundi, Advocate, for the petitioner, and have perused the record of the case.
4. ' The learned counsel for the petitioner, as a matter of fact, challenged the vires of statutory provision contained in section 24 of the N.-W.F.P. Preemption Act, 1987 before its amendment vide Act X of 1992 requiring the Court to order the plaintiff/pre-emptor to deposit 1/3 of the sale price mentioned in the sale-deed or in the mutation, in cash and for the remaining two-third furnish bank guarantee and in support of his submission, he relied upon sections 3 and 33 of the Act ibid. Before embarking upon the discussion of the controversy, it would be of advantage to reproduce the provisions - contained in unamended section 24, and sections 3 and 33 verbatim as under:--- "24. Plaintiff to deposit sale price of the property. ---(1) In every suit for pre-emption the Court shall require the plaintiff to deposit in such Court one-third of the sale price of the property in cash and for the remaining two-third furnish bank guarantee to the satisfaction of the Court within such period as the Court may fix: ' Provided that such period shall not extend beyond thirty days of the filing of the suit: ' Provided further that if no sale price is mentioned in the sale-deed or in the mutation, the Court shall require the deposit of one-third of the probable value of the property, and a bank guarantee for the remaining two-third of such probable value: ' Provided also that the plaintiff may, in lieu of bank guarantee, deposit the required amount in cash.
(2) Where the plaintiff fails to deposit one-third of the sale price or the probable value of the property and the required bank guarantee under subsection (1) within the period fixed by the Court, his suit shall be dismissed.
(3) Where the plaintiff withdraws the sum deposited by him or the bank guarantee furnished by him under subsection (1), his suit shall be dismissed.
(4) Every sum deposited under subsection (1) shall be available for the discharge of costs.
(5) The probable value fixed under subsection (1) shall not affect the final determination of the price payable by the pre-emptor.
3. Interpretation.---In the interpretation and the application of the provisions of this Act, the Court shall seek guidance from the Holy Qur'an, Sunnah and Fiqah.
33. Matters ancillary or akin to the provisions of this Act.---Matters ancillary or akin to the provisions of this Act which have not been specially covered under any provision thereof shall be decided according to Shari'ah."
5. ' Section 24 has since been amended by the N.-W.F.P. Act X of 1992 and subsections (1), (2) and (3) substituted as follows:--- "24. Plaintiff to deposit sale price of the property.---(1) In every suit for pre-emption the Court shall require the plaintiff to deposit in such Court one-third of the sale price of the property in cash within such period as the Court may fix: ' Provided that if no sale price is mentioned in the sale-deed or in the mutation, the Court shall require the deposit of one-third of the probable value of the property.
(2) Where the plaintiff fails to deposit one-third of the sale price or the probable value of the property within the period fixed by the Court, his suit shall be dismissed.
(3) Where the plaintiff withdraws the sum deposited under subsection (1), his suit shall be dismissed."
6. ' Since the impugned orders of deposit and its review were passed prior to the above amendment, we have to deal with the matter in issue according to the unamended section 24 of the Act. The bare reading thereof makes it amply clear that the Court had to determine the probable value of the property only if no sale price had been mentioned in the sale deed or in the mutation, meaning thereby that if the sale consideration was mentioned in the documents of transfer, the Court had no discretion in the matter and was bound to pass the order for deposit according to subsection
(1) of section 24. The reason obviously was that the Court had to pass the order immediately on the receipt of plaint before issuance of any summons to the opposite-party and apprising itself of the probable defence likely to be taken up by the vendee/defendant, and secondly, because the Court was required to enforce the deposit within 30 days of the filing of the suit. It has been held by this Court in case Awal Noor v. District Judge, Karak (1992 SCM R 746) that this time cannot be extended.
7. As such, the original order passed by the trial Court was perfectly in accordance with the strict interpretation of unamended section 24 of the Act ibid. Section 3 of the Act ibid provides that in the interpretation and the application of the provisions of this Act the Court shall seek guidance from Holy Qur'an, Sunnah and Fiqah, and section 33 deals with the matters ancillary or akin to the provisions of the Act which have not been specially covered under any provision thereof shall be decided according to Shariah. There is apparently no ambiguity in the provisions of section 24 of the Act ibid and in the interpretation and application thereof resort to sections 3 and 33 was not called for. The plaintiff/petitioner had filed the instant suit for possession through pre-emption under the provisions of N.-W.F.P. Pre-emption Act, 1987 and for the progress of his suit to its logical conclusion he had to strictly follow the procedure contained in the Act in letter and spirit. The application for amendment can be construed as an application for the review of the earlier order and the learned trial Court under section 114 read with Order 47 of the Civil Procedure Code had very restricted powers to review its orders. None of the conditions enumerated therein were alleged, muchless proved, warranting review of the order passed by the trial Court and the learned revisional Court was perfectly justified in setting it at naught.
8. ' Resultantly, we do not find any merit in the instant petition and decline leave to appeal. The petition is accordingly, dismissed. However, we allow one month's time to the petitioner to comply with the order of the trial Court dated 11-5-1991 regarding the deposit of Rs, 95,198 in cash and for remaining Rs, 1,90,392 to furnish bank guarantee or deposit the entire amount of Rs,2, 85,590 in cash i,e,, on or before 26-4-1994.