MIAN MUHAMMAD AJMAL, J.---This Regular First Appeal is directed against the judgment and decree of the learned Senior Civil Judge, Swat dated 7-7-1994, whereby on acceptance of the application of the defendant/respondent No. 1, the suit of the plaintiffs-appellants was dismissed.
2. Facts of the case are that Khuda Bakhsh and 4 others plaintiffs--appellants instituted a suit for possession through pre-emption on 25-2-1992 in the Court of EAC exercising the power of Deputy Commissioner, Swat under DATA Regulation No.II of 1975. As per order-sheet dated 1-10-1992 defendant/respondent No.1 moved an application that plaintiffs have not deposited the sale price/pre-emption amount of the land in dispute hence, they should be directed to deposit 1/3rd of the sale price of Rs.15 lacs in cash and to furnish bank guarantee for the remaining 2/3rd. The plaintiffs were directed to submit written reply to the application and to argue it on 10-10-1992, but the plaintiffs filed an application before the Deputy Commissioner, Swat on 8-10-1992 for transfer of the case from the Court of EAC-I to some other Court as they had allegedly lost confidence in him due to the fixation of the case for arguments on the application, however the application was dismissed on 9-12-1992 by the Deputy Commissioner. The plaintiffs filed an appeal against the order of rejection of application before the Additional Commissioner, Malakand Division, who vide his order dated 13-3-1993 accepted the appeal and transferred the case from the Court of EAC-I Swat to EAC (Revenue) Swat.
On 9-6-1993 the defendant-respondent No.1 submitted his written statement and the plaintiffs were directed to deposit 1/3rd of the sale price in cash and to furnish bank guarantee of the remaining 2/3rd within a week. Against this order the plaintiffs filed an appeal before the Additional Commissioner, Malakand Division who vide his order dated 17-10-1993 modified the order to the effect that the plaintiffs should deposit 1/5th of Rs.15 lacs or security within one week from 10-11-1993 in the lower Court. Defendant/respondent No.1 filed an application for clarification of this order as it could not be construed whether 1/5th in cash was to be deposited or security was to be furnished and for remaining 4/5th, the order was absolutely silent. The Additional Commissioner vide his order dated 18-12-1993 clarified that in the earlier order it was ordered that plaintiffs should deposit 1/5th in cash of Rs.15 lacs but due to typing error it was omitted. It was redirected that the plaintiffs should deposit 1/5th of Rs.15 lacs in cash before 18-1-1994 and submit security for remaining 4/5th, in the lower Court. The plaintiffs assailed this order in a revision petition before Additional Secretary Home who vide his order dated 19-1-1994 modified the order directing the plaintiffs to deposit the 1/5th of Rs.15 lacs within a period of two months. The plaintiffs through an application dated 19-3- 1994 sought permission from the Additional Deputy Commissioner, Swat, to allow them to deposit the amount, the application was marked to the Reader/Moharrir for necessary action. On 20-3- 1994 the EAC observed that the Courts constituted under PATA Regulation-11 of 1975 cease to have jurisdiction in view of the judgment of the Supreme Court thus it cannot pass any order and the Court to which the suit shall be transferred shall pass the order for the deposit of the pre-emption money. On 14-5-1994 the EAC (Revenue), Swat with the concurrence of the learned counsel for the parties transferred the case to the Senior Civil Judge, swat for further proceedings. On 17-5-1994 the Senior Civil Judge, Swat directed the plaintiffs to deposit 1/5th of Rs.15 lacs within three days subject to valid objections of the defendant as the amount has not been deposited within a specified period in the Court having the jurisdiction under PATA Regulation. The plaintiffs deposited Rs.3 lacs on -18-5-1994 and the issues were framed on 25-5-1994.
The defendant/respondent No. l filed an application on 9-6-1994 for the dismissal of the suit on account of non-deposit of sale consideration as directed by the Additional Secretary Home which was accepted vide impugned order and the suit was dismissed by the Senior Civil Judge, Swat on 7-7=1994. The plaintiffs aggrieved of the judgment and decree dated 7-7-1994 filed an appeal before the District Judge, Swat on 13-7-1994 which was later on withdrawn and accordingly the appeal was dismissed as withdrawn on 22-9-1994 by the Additional District Judge, Swat.
3. Learned counsel for the appellants contended that the Court constituted under PATA Regulation after ceasure was divested with the jurisdiction to transfer the case to the Civil Court. However, it could return -the plaint to the plaintiffs for proper representation before the competent forum.
Further contended that the appellants in compliance with the order of the Court deposited the pre- emption money and thus they could not be non-suited.
4. On the other hand, learned counsel for the defendant-respondent No. l argued that N.-W.F.P. Pre- emption Act, 1987 has been extended to the PATA area vide Notification No. Legis:l(9)/70-Vol: VIII dated 25-9-1994, as such, in view of the judgment of the august Supreme Court of Pakistan in cases of Government of N.-W.F. P. v. Said Kamal Shah (PLD 1986 SC 360), Rozi Khan v. Syed Karim Shah (1992 SCM R 445) and Sardar A.I v. Additional Secretary, Home and Tribal Affairs Department (1996 SCM R 1480), the suit instituted under the N.-W.F.P. Pre-emption Act, 1950, since repealed, had to be dismissed, hence the impugned judgment/decree warrants no interference. Further contended that the plaintiffs have alleged that prior to the institution of the suit they served a notice upon the respondents which at the most can be termed asTalb-i-Ishhad' but in absence of the first ' Talab' i.e. Talb-i--Muwathibat even if second Talab has been made, it would not make the case of the plaintiffs maintainable as second Talab is made in confirmation to the first Talab and when there is no first Talab, there cannot be any confirmation thereof. Further contended that under N.-W.F.P. Pre-emption Act, 1987 the Court had no jurisdiction to extend the period for deposit of pre-emption money. He urged that the conduct of the plaintiffs throughout has been to avoid the compliance of the Court orders and to defeat them on one pretext or the other. He urged that ifthe argument of the learned counsel for the appellants is accepted that the transfer of the case was illegal from the PATA forum to the Civil Court, as itceased to have jurisdiction to transfer it, then it is equally applicable to the plea taken by the appellant's counsel that plaint should have been returned. The Court if had no jurisdiction to transfer the case, it had no jurisdiction either to return the plaint.
5. We have given due consideration to the submissions of the learned counsel for the parties and have gone through the record of the case.
6. The resume of the case history given above in para. 2 would reflect theconduct of the appellants that they have been constantly and deliberately avoiding the compliance of the orders of the Courts regarding deposit of pre--emption money and tofurnish security within the period allowed to them by various Courts. Their modus operandi throughout has been to flout the deposit orders by challenging them before the higher forum in order to avoid compliance of the same. On the submission of the application by respondent No. l on30-8-1992 seeking direction against the pre- emptores to deposit 1 /3rd of Rs.15lacs in cash and to furnish bank guarantee for the remaining 2/3rd, plaintiffspreferred an application on 8-10-1992 before the Deputy Commissioner, Swatfor transfer of the case on the ground that since the Court had fixed a date for submission of written reply and arguments for 10-10-1992, therefore, they havelost confidence in the Court, which application was dismissed by the DeputyCommissioner, Swat on 9-12-1992, holding that there was no good ground forthe transfer of the case. The plaintiffs filed an appeal against the aforesaid order before the Additional Commissioner who in his order dated 13-3-1993 observed that no progress has been made in the suit and due to applications the suit is . Shuttling between the various Courts: The appeal was accepted and the suit was transferred from the Court of EAC-1 to EAC (Revenue), Swat who passed the order of deposit of pre-emption money on 9-6-1993 directing the plaintiffs to deposit 1/3rd of Rs.15 lacs in cash and 2/3rd in the form of bank guarantee within a week. Instead of complying the order and depositing the pre-emption money, the plaintiffs- appellants filed an appeal before the Additional Commissioner who modified the order by reducing the deposit of pre-emption amount from 1/3rd to 1/5th.
It may be mentioned here that appellants repeatedly committed default to deposit the pre- emption money in Court. As per order dated 9-6-1993 the appellants were bound to deposit the pre-emption money within a week which was not complied with and an appeal was filed assailing the same before the Additional Commissioner. Who, as per impugned judgment herein, suspended the order of the lower Court and ordered the maintenance of status quo up to 3-7-1993. There is nothing on the record to suggest that the status quo order was extended or the order dated 9.r6- 1993 was held in abeyance beyond 3-7-1993. In absence of any such order it can be safely presumed that there was no suspension order beyond 3-7-1993 and merely an appeal/revision would not render the order of deposit to become inoperative during the pendency thereof, unless specific suspension order was in the field. The Additional Commissioner in his clarification order dated 18-12-1993 redirected the plaintiffs to deposit 1/5th of Rs.15 lacs in cash and to furnish security for the remaining 4/5th before 18-1-1994 but this order was yet not complied with and the same was assailed before the Home Secretary who extended the period by two months for the deposit of the pre-emption amount vide his order dated 19-1-1994. There is nothing on the record to indicate that the order of the Additional Commissioner dated 18-12-1993 was either suspended or held in abeyance, as such failure to deposit the pre-emption money before 18-1-1994 rendered the suit/appeal of the plaintiffs-appellants liable to dismissal under A section 23(4) of the N.-W.F.P.
Pre-emption Act, 1950. Even the anal order passed by the Additional Secretary, Home and Tribal Affairs, under the PATA Regulation, was not complied with in the extended period of two months. On 19-3-1994. The pre-emptores filed an application before the Additional Deputy Commissioner, Swat seeking permission for depositing Rs.3 lacs, which was marked to the Reader/Moharrir for necessary action. The Presiding Officer was on leave on 19-3-1994, therefore, the Reader through his note fixed the application for the next date i.e. 20-3-1993. The trial Court on that date observed that the Court has been divested of the jurisdiction, in view of the judgment of the Supreme Court, therefore, it cannot proceed to pass any order on the application. The preemptors cannot claim any premium through this application which was made on 19-3-1994 i.e. After the expiry of the extended period of two months which period had expired when the application was fled. Any body who waits for the last day to do the act which he is required to do under the law if fails to perform that act within the given time due to any lapse then he has to suffer the consequences for his default, The consequence provided by subsection (4) of section 23 of the N.-W.F.P. Pre-emption Act, 1950 for non-compliance of the order of deposit of probable sale value was to reject the plaint or dismiss the appeal, as the case may be, which was mandatory in nature. Since the appellants awfully failed to honour the orders of the Courts in time, therefore, learned Court was justified to non-suit the pre--emptores.
7. The contention of the learned counsel for the appellants that the Court under PATA Regulation had no jurisdiction to transfer the case to Civil Court, has no merit. Firstly, the Court under PATA Regulation transferred the case to the Civil Court with the concurrence of the learned counsel for the parties and as C such learned counsel cannot turn around at this stage to object to such transfer of the case. Secondly, his objection from another point of view hits his own case, as the Court which ceased to have jurisdiction ceases to have jurisdiction for all intent and purposes. If the transfer of case by it was without jurisdiction, the c return of the plaint would have been equally without jurisdiction. The argument Iof the learned counsel, if is accepted then there was no competent suit before the Civil Court and it deserved to be dismissed outright being incompetent and unmaintainable. Learned counsel half-heartedly conceded that a fresh suit should have been filed in the Civil Court after the repeal of PATA Regulation 11 of 1975, thus he in a way admitted that suit was bad, incompetent and unmaintainable.
8. N.-W.F.P. Pre-emption Act, 1987 has been extended to PATA area through Notification No. Legis: l(9)/70-Vol VIII dated 25-9-1994, and no decree in the case had been passed till then, hence this appeal under subsection (3) of section 35 of the Act ibid would lapse and the suit of the pre-- emptor would stand dismissed. For convenience sake section 35 of the Act ibid is reproduced hereunder:-- "35 Real.-- (1) The North-West Frontier Province Pre-emption Act, 1950 (N.-W.F.P. Act X of 1950), is hereby repaled.
(2) in the cases and appeals filed under the law referred to in subsection (1) in which judgments and decrees passed by the Courts have become final, further proceedings if any relating to such cases and appeals, shall, notwithstanding the repeal of such law be governed and continued in accordance with the provisions thereof.
(3) All other cases and appeals not covered under subsection (2) and instituted under the law, referred to in subsection (1) and which immediately before the commencement of this Act were pending before a Court shall lapse and suits of the pre-emptores shall stand dismissed, except those in which right of pre-emption is claimed under the provisions of this Act."
1992 SCMR 445), wherein it was held as under:-- "We observe that in subsection (3) of section 35 it is provided that other cases and appeals not covered under subsection (2) and instituted under the Act of 1950 which were pending before a Court before the commencement of the Act of 1987 shall lapse and suits of pre-emptores shall stand dismissed, except those in which the right of pre-emption is claimed under the provisions of Act X of 1987. "
9. In this case right of pre-emption has not been claimed under the new Act but under the repealed Act, wherein no decree has been passed so far, hence this appeal would stand lapse and the suit would stand dismissed.
10. Under section 13 of the Act X of 1987, the right of pre-emption of the pre-emptor would stand extinguish unless pre-emptor had made demands of pre--emption in the form of (i) Talb-i- Muwathibat, (ii) Talb-i-Ishhad, and (iii) Talb-i---Khusumat, and right of pre-emption would only become exercisable if the aforesaid ' Talabs' have been properly and adequately made, and in the absence thereof or there being any defect or deficiency therein, the right of pre-emption would extinguish. The plaintiffs had alleged in the plaint that they made ' Talb-i---Muwathibat' after they came to know about the sale and thereafter they made ' Talb-i-Ishhad' through notice. ' Talb-i- Muwathibat' is the immediate demand by a pre-emptor in a sitting or meeting in which he comes to know about the sale declaring his intention to exercise his right of pre-emption. The plaintiffs have not said even a word in the plaint or in the alleged notice that when, where, in which sitting and before whom ' Talb-i-Muwathibat' was made as it is required to be made immediately on attaining the knowledge of sale in the sitting or meeting. The time and the place of sitting or meeting and its participants, before whom the right of pre-emption was declared to be exercised, has not been disclosed by the plaintiffs, thus ' Talb-i-Muwathibat' as envisaged by the law has not been made, and likewise the alleged notice bf ' Talb-i-Ishhad is also defective and deficient as it has not been attested by two witnesses nor it appears to have been sent under registered cover acknowledgement due to the vendee.; In the circumstances the required Talbs which are condition precedent for asserting the right of pre-emption have not been set up in accordance with law, as such the right of pre-emption shall stand extinguished. Even prior to the extension of N.-W.F.P. Pre- emption Act, 1987, the august Supreme Court of Pakistan held in case of Sardar A.I and others v.
Additional Secretary Home and Tribal Affairs Department reported in 1996 SCM R 1480, that 'Talabs' are preconditions for asserting the right of pre-emption under the Muslim law and failure to make the requisite ' Talabs' in the mode and the manner prescribed under the law would render the pre- emptores' right to extinguish. The observations of the apex Court of the country in the aforesaid ruling are to the following effect:-- "3. In support of this petition, the learned counsel for the petitioners contended that as the N-. W . F.
P. Pre-emption Act, 1987 has- not been extended to the Provincially Administered Tribal Areas the jugment of the learned Peshawar High Court was untenable merely on the ground that Talabs had not been made by the pre-emptores/petitioners.
The contention of the learned counsel for the petitioners is untenable, in that, it is now settled once for all that the requirement of Talabs being a sine qua non for the enforcement of the right of pre- emption recognized by the Muslim law, its non-compliance had the effect of extinguishing the pre- emptive rights of all the pre-emptores. This statement of law makes no distinction between the cases under the statutory law of pre-emption or under the Muslim law, pure and simple.
Admittedly, the areas under Regulation No.II of 1975 are governed by the pre-empton law under the general Muslim Law under which, as stated earlier, the requirement of Talab is one of the essentials for exercising the right of pre-emption. It would not, therefore, make any difference if the N.-W.F.P.
Pre-emption (Act No.X of 1987) has not been extended to the Provincially Administered Tribal Areas."
11. After the extension of N-.W.F.P. Pre-emption Act, 1987, it has become all-the-more necessary and obligatory to make the Talabs as required under section 13 of the Act ibid as without Talabs right of pre-emption would extinguish. After the application of the Act ibid the cases and appeals instituted under the old law since repealed, pending before a Court would lapse and suits of the pre- emptores would stand dismissed, except those in which right of pre-emption has been claimed under the provisions of the new Act, as enunciated by subsection (3) of section 35 of the Act ibid. As stated above, in this case right of pre-emption has not been claimed under the provisions of the new Act, therefore, this appeal is hit by section 35(3) of the Act ibid.