This revision petition has been filed against the order of learned Additional Sub-Judge, Kotli, passed on November 21, 1996.
2. The facts necessary for the disposal of this revision petition are that plaintiff-petitioner filed a pre-emption suit in the Court of Additional Sub-Judge, Kotli. The learned trial Judge ordered the plaintiff to deposit one-fifth of the pre-emption money, till the next date of hearing. An application on behalf of the plaintiff-petitioner to vary the order for deposit of cash to security, was moved which was disallowed by the trial Court. Hence this revision petition.
3. Raja Javed Akhtar, the learned counsel for $he petitioner maintained that the learned trial Judge failed to apply his mind to the facts of the case. It was also argued that the trial Court held that the order for cash deposit had already been passed by it, therefore, the order could not be varied as the Court did not possess power to review its order. The observation made by the trial Court suffered from an illegality, argued the learned counsel for the petitioner. The learned counsel relied on PLD 1970 Azad J&K 66 and PLD 1967 SC 418, in support of his assertions. On the other hand, Ch. Muhammad Nasim, the learned counsel for the opposite side vehemently opposed .The petition, on the grounds that the Court had already passed an order and there was no legal justification to vary its previous order and replace the same for security. There was no error in the order, as such, the trial Court rightly held that it had no power to review its earlier order.
4. I have heard the learned counsel for the parties and also gone through the record. Under section 21 of the Right of Prior Purchase Act, the Court shall at, or at any time before the settlement of issues, require the plaintiff to deposit in Court a sum as in the opinion of the Court, is equal to one- fifth of the probable value of the land or property, or require the plaintiff to give security to the satisfaction of the Court, for the payment of a sum not exceeding such probable value within such time as the Court may fix in such order. It is for the Court to exercise its discretion either to require the plaintiff to deposit cash or give security keeping in view the relevant circumstances, such as bona fide in filing the pre-emption suit etc.
5. In the instant case, the plaintiffs moved an application praying for varying the order requiring the cash deposit for giving security. The trial Court rejected the application on the ground that it did not possess power to review its order passed earlier. It may be stated that the learned trial Judge is empowered: either to require the plaintiff to deposit the cash amount or give security and can vary its order if the circumstances of the case so require. Therefore, the observation made by the learned trial Judge that he does not possess the power to review his order, is not in consonance with law. Reliance in this regard may also be placed on a Full Bench judgment recorded by this Court in the case titled Mst. Resham Jan v. Khan Nawab Khan (PLD 1970 Azad J&K 66), wherein the following observation was made:----- "--It is open to the Court to vary its orders for deposit or security as the case may be, but this option can be exercised before the settlement of issues after which, the stage for exercise of option comes to an end. As issues had not been settled till then in this case, it was open to the Court to vary its previous order on exercise of fresh option and replace the same for security."
A similar proposition came under consideration before the Supreme Court of Pakistan in another case titled Ch. Zulfiqar A.I v. Mian Akhtar Islam and another' (PLD 1967 Supreme Court 418), wherein it was held as under:-- "--The question was whether the trial Court was competent to vary its original order requiring security and to replace it by an order in the alternative form allowed by the law, viz., an order for deposit of one---fifth of the purchase price: Held, that such a power does exist, but it must be exercised before the settlement of issues, and it must be exercised expressly. That view is supportable upon a consideration of the wording of subsections (1) and (4) of section 22, Punjab Pre-emption Act (I of 1913). There is nothing in subsection (1) to indicate that the choice can be made only once in a suit. It is well-known that the requirement of a cash deposit or security contained in the subsection is intended to guard against vexatious and mala fide litigation, and thus to guarantee a vendee against frivolous proceedings on the part of possible pre-emptors. The deposit is a token of good faith, and equally the security for the full amount of the purchase price constitutes a guarantee that plaintiff will meet whatever demand is made for money in case his suit succeeds. The furnishing of a guarantee in one or the other form is made obligatory by subsection (1), but the subsection contains no words to indicate that the choice between the two forms of guarantee can only be made once, and so far as the safeguard of the interests of the vendee is concerned, the two guarantees are to be placed on a level. An indication that the law does not impose so strict a condition that a form of guarantee once chosen cannot be altered by the trial Court within the time permitted is to be found in the wording of subsection (4)."
Relying upon the aforesaid authorities, it can safely be resolved that the trial Court has got the power to vary its orders for deposit or security, as the case may be, at its option before the settlement of the issues. It may be clarified that the Court, on exercise of fresh option, can replace its previous order requiring the cash deposit to security or order the security to cash deposit, but the condition precedent is that this exercise has to be made before the settlement of the issues.
4. In view of the above discussion, the revision petition is accepted and the order recorded by the learned Additional Sub-Judge, Kotli is set aside. The trial Court shall consider the application of the plaintiff-petitioner afresh and decide it keeping in view the relevant law as discussed above.