' The instant revision filed by Bakht Karam vendee in a pre-emption suit against the order dated 19- 7-1995 of the learned District Judge/Zilla Qazi, Swat arises in the background that Fazal Karim respondent had filed a pre-emption suit against Bakht Karam the petitioner. The sale-deed contained the sale consideration as Rs, 1 ,30 ,000 .
2. Civil Court under PATA Regulation on 14-12-1993 directed the preemptor Fazal Karim under section 23 of the N.-W.F.P. Pre-emption Act, 1950 to deposit a sum of Rs,43,000 as pre-emption money on or before 8-1-1994. The pre-emptor went in appeal before the Additional Commissioner on 24-1-1994. Such appeal was pending when on 12-2-1994 the Courts constituted under PATA Regulation were abolished. The appeal still remained pending and the adjournments were sought by the appellant-pre-emptor despite the fact that the forum had changed and the Additional Commissioner had time, and again commented so. Ultimately on 21-9-1995 such appeal was returned.
3. In the meanwhile, due to change of forum, the original file was returned to the Court of Illaqa Qazi/Civil Judge, Khwaza Khela where the vendee filed an application for dismissal of suit under section 23(4) of the Preemption Apt on the ground that pre-emption money was never deposited.
The learned Civil Judge accepted the application and dismissed the suit vide order dated 2-4- 1995. The learned District Judge/Zilla in the. Order vide his judgment 19-7-1995 and granted one month time to the pre-emptor to deposit the pre-emption money on or before 19-8-1995. Hence this revision.
4. The learned counsel for the respondent advanced three-fold arguments to the effect, firstly, that when the learned Civil Judge passed the order dated 2-4-1995, no suit was pending before him.
This argument is not correct because during pendency of an appeal against interlocutory order the file can be returned to the Trial Court for proceedings or may not be requisitioned at all and hence the Trial Court can have jurisdiction to proceed unless such proceedings are stayed through specific order to that effect. No specific order was ever made for the stay of proceedings in the instant case. Rather, the very file was sent by the Appellate Court to the Trial Court and hence it had no impediment to proceed.
5. The second argument was that the Civil Judge could not pass the order of dismissal because the very appeal of the pre-emptor was pending in the first appellate forum. This also is not relevant because no order at all was obtained from the Appellate Court for stay of proceedings in the lower Court and hence the pendency of an appeal against interlocutory order does not by itself operate to stay the proceedings in the lower forum.
6. The last objection was to the effect that the first order dated 14-12-1993 of deposit of pre- emption money under section 23 of the Pre-emption Act was also without jurisdiction because there was dispute over sale consideration and hence it could not be resolved without reference having been made to Jirga. The fact is that the matter was to be referred to Jirga only after resolving legal matters and only for determination of facts in issue. In the instant case the very section 23 of the Act provides that the deposit of pre-emption money was bound to be ordered at, or at any time before, the settlement of issues. Thus this order was bound to be made before the main dispute was referred to Jirga.
7. After having answered the objections of the learned counsel for the respondent; one comes to the real matter in issue whether the pre-emption money was not deposited in contravention of the provisions of section 23 of the Pre-emption Act. The very section provided that the non-deposit or pre-emption money within the time fixed by the Court or within such further time as the Court may allow, shall entail upon the rejection of the plaint or the dismissal of the appeal, as the case may be.
8. In the instant case the amount of pre-emption money was to be deposited on or before 8-2- 1994 but it was never so deposited. The appeal was filed on 24-1-1994 but no such order was obtained from the Appellate Court even till 21-9-1995, the date up to which the appeal remained with the Additional Commissioner. The Additional Commissioner had lost jurisdiction on 12-2-1994 but no application was filed before him till that date. In the circumstances when the pre-emption money was not deposited and when a stay order also was not obtained from the Appellate Court, the non-compliance thereof is bound to result into the dismissal of the suit. One can have reference in this behalf to Malik Almgir and 3 others v. Salam Gul and 10 others (1990 CLC 1915).
9. In this view of the matter the learned District Judge had acted with illegality as well as material irregularity in allowing further time to the pre-emptor for deposit of pre-emption money at a stage where more than a year had passed even after default and when no extension of time had ever been asked for by the pre-emptor before the initial expiry.
10. The revision petition is accepted, the impugned order dated 19-7-1995 is set aside and that order dated 2-4-1995 is restored with the modification that instead of dismissal of suit, the plaint shall stand rejected.
Plaint rejected.