SHAH JEHAN KHAN, J.---This judgment shall dispose of two Writ Petitions Nos.33 of 1995 and 65 of 1996, as both involved identical question of law and facts.
2. Facts of the case giving rise to Writ Petition No.33 of 1995 are that the petitioner had filed a pre- emption suit in the Court of Senior Civil judge Dera Ismail Khan on 1-6-1994 in respect of a house allegedly purchased by respondent No.1 through a registered sale-deed dated 10-2-1994 for a consideration of Rs.50,000. Vide order dated 6-6-1994 he was directed to deposit l/3rd of the sale consideration before 7-7-1994 but m vain whereafter on his application a period of further four days was given to him for doing the needful subject to all valid objections by the other side.
However, an amount of Rs.17,000 was duly deposited on the same day, i.e. 7-7-1994. The defendants/respondents felt aggrieved by the non-deposit of 1/3rd of the pre---emption amount before 7-7-1994 and had filed an application dated 12-7-1994 for dismissal of the suit but was rejected by order dated 26-9-1994. Not satisfied with the said order of the trial Court, the defendants went in revision before the District Judge Dera Ismail Khan, who vide his order dated 19- 1-1995 accepted the same and while setting aside the order impugned therein, dismissed suit of the plaintiff/petitioner.
3. Facts of the case giving rise to Writ Petition No.65 of 1996 in brief are that the petitioner had pre- empted the transaction of a plot measuring 4 Kanals, 10 Marlas in-the Court of Senior Civil Judge Dera Ismail Khan on the grounds, inter alia, that the plot in question was allegedly sold by the defendant/vendee (respondent No.8 herein) in favour of respondents Nos. l to 7 through a registered sale-deed dated 10-11-1994 for an amount of Rs.02,00,000 but in order to defeat the pre- emption right of the petitioner, a fictitious amount of Rs.20,00,000 was mentioned in the registered sale-deed. The learned trial Judge ordered the deposit of 1/3rd of Rs.20,00,000 mentioned in the deed before 24-4-1995, but the plaintiff failed to comply with. Thereafter, on his application the time was extended for further nine (9) days up to 3-5-1995. However, on 9-5-1995, 1/3rd of the pre- emption money was deposited; i.e. Nine (9) days after the date fixed earlier by the trial Court for the purpose. This non-deposit of the pre-emption amount with in time, i.e. Before the date fixed, i.e. 24-4-1995 feeling aggrieved the defendant/vendee Nos. l to 7 filed two separate applications, one for review of the order dated 23-4-1995 allegedly passed in their absence and against the provisions of N.-W.F.P. Pre-emption Act (Act X of 1987), and the second for dismissal of the suit due to non-deposit of the pre-emption amount in time, as ordered by the Court on 8-3-1995. The extension of time was also challenged on the grounds of being illegal and without jurisdiction.
Respondent No.8 had also filed an application on 29-5-1995 for deletion of her name from the panel of defendants as she had only sold two Kanals 10 Marlas of land which is explicitly mentioned in the deed and that she is still having title over the remaining area, i.e'. Two Kanals.
5. After hearing the parties, applications of the defendants/respondents Nos. l to 7 were dismissed by the trial Court on 1-10-1995 whereafter they filed First Appeal from Order No. l of 1996 in this Court which was returned due to lack of jurisdiction for presentation before the District Judge vide order dated--24-4-1996. Thereafter, they filed a revision petition before the District Judge Dera Ismail Khan which was accepted, the impugned order dated 1-10-1995 was set aside and suit of the plaintiff/petitioner was dismissed. Hence the instant two petitions in both the matters.
6. Learned counsel for the petitioners in both the writ petitions vehemently challenged the legality of the impugned orders of the revisional Court on the grounds; Firstly that the order of extending time for deposit of pre-emption money was legally correct and Secondly that the revisional Court has exceeded' its jurisdiction by setting aside the same as it was deposited within the extended period, they argued that subsection (2) of section 23 of the N.-W.F.P. Pre-emption Act 1987 stands amended by Act X of 1992 and under section 148 of the C.P.C., the trial Court is empowered to extend the time for deposit of pre-emption money even suo motu. In support of their views, reliance was placed on the case reported as "Ch. Muhammad Yaqoob v. Nazim Hussain (1995 CLC 1271 wherein it was observed that the trial Court can extend the time fixed for deposit of pre- emption amount. We are, however, not in agreement with the petitioners' counsel, as in the cited judgment five pre-emption suits were filed, and in four the 'Zar-e-Soam' was deposited well within the stipulated period but in the fifth case it was deposited on the following day which aggrieved the opposite side but without any success as the trial Court itself condoned the delay on the ground of inadvertence suo motu and held that the delayed deposit was within the ambit of section 24 of the Punjab Pre-emption Act.
7. Learned counsel for the petitioners also referred to a case reported as "H. Cooper and others v.
The State Life Insurance Corporation Limited" (SCMR 1994 2115) wherein while commenting upon section 8 of the Sindh Rented Premises Ordinance (XVII of 1979) it was held that where Statute does not provide a specific period for doing an act, the Court can fix the time for its doing, They argued that after the amendment of section 24(2) of the N.-W.F.P. Pre-emption Act-, 1987 by Act X of 1992, it is discretionary with the Court to fix any period for the requisite deposit, and hence the orders of the revisional Court in the cases in hand were termed as unlawful. While interpreting the word "shall" used in section 24(2) of the N.-W.F.P. Pre-emption Act 19'87, their stand was that the words "shall and May" are oftenly interchangeable and should be construed in prospective circumstances and the language used in the Statute is affirmative and not negative. In this context, reliance was placed on the case reported as Abdul Rahim and 2 others v. M/s United Bank of Pakistan (PLD 1997 Karachi 62).
8. In reply, learned counsel for the answering respondents in Writ Petition No.33 of 1995 opposed the aforesaid contentions by contending that the stance taken by the plaintiff for non-compliance of the Court's order to deposit the pre-emption money before the date fixed is untenable on the ground that he was duly represented by a counsel who was well conversant of the legal consequences arising therefrom. As regards the amended Act X of 1992, it was submitted that only the specified time of 30 days was omitted but the consequential clause thereof was kept intact.
Under the N.-W.F.P. Pre-emption Act, 1950 the Courts were to fix a time for deposit of any sum not exceeding the probable value of the suit property or to give a security bond to the satisfaction of the Court not exceeding such value, whereas under the new N.-W.F.P. Pre-emption Act, 1987, the Court shall require the plaintiff/pre-emptor to deposit 1/3rd of the pre-emption amount in cash within a fixed time whereafter the Court would not be competent to extent the same. His next submission was that under section 23(4) of the repealed Pre-emption Act of N.-W.F.P. On failure of the plaintiff/pre-emptor to make the deposit in cash or produce security bond within the time fixed or within the extended time, as the case may be, the plaint was to be rejected, whereas under subsection 24(2) of the amended Act in case of failure of the plaintiff to deposit 1/3rd of the pre- emption money within the period fixed, his suit is to be dismissed. It was, therefore, argued that the trial Court had no power to extend the time and in this respect placed reliance on a case reported in PLD 1992 Pesh. 18.-He submitted that the subsequent order of extension of time amounted to review of the earlier order and without fulfilment of requirements of section 114 read with Order 47 of the C.P.C. Thereof, such an order was not open to Review. Reliance was placed on 1995 SCMR 135.
He referred to the case of Muhammad Ashraf etc. v. Ziarat Gul, reported as PLD 1994 Peshawar 48 wherein the existing N.-W.F.P. Pre-emption Act, 1987 was held more strict and exhaustive than the earlier one as presently without making Talbs, i.e. Talb-e-Muwathibat and Talb-e-Ishhad, pre- emption suit shall be dismissed and discretion of the Court to grant extentions has been taken away.
9. As regards the jurisdiction of Court to extend time under section 148, C.P.C., it was argued that the same is irrelevant in case of an order passed under section 24 of the prevailing N.-W.F.P., Pre- emption Act, 1987 and hence the writ petitions, according to them, merits dismissal.
10. After giving a thorough consideration to their respective arguments and the materials placed on file, we are to consider; Firstly whether the trial Court after Act X of 1992, is left with an option to extend time to deposit 1/3rd of the pre-emption amount; Secondly whether section 148, C.P.C. Has an over--riding effect upon section 24 of N.-W.F.P., Pre-emption Act, 1987 and, Thirdly whether the word "Shall" used in section 24(2) of the new N.-W.F.P., Pre-emption Act 1987 has an obligatory and mandatory effect upon the Courts.
11. Before the enforcement of the existing N.-W. F. P., Pre-emption Act of 1987, various provisions of the previous Pre-emption Act of 1950 were declared to be repugnant to the injunctions of Islam in the case of Said Kamal Shah reported in PLD 1986 SC 360 directing the Government to bring in conformity with the Injunctions of Islam the law of pre-emption before 31-7-1986. However, in exercise of its suo motu jurisdiction the august Supreme Court in .The case reported as PLD 1990 SC 865, reviewed its verdict in Said Kamal Shah's case and maintained its previous view. Nonetheless, in compliance of the directions given in Said Kamal Shah's case, the Government amended the N.- W.F.P. Pre-emption Act 1950 by Act X of 1987 vide which discretionary powers of the Courts were taken away. Under Act XIV of 1950, in cases of Agricultural land or immovable--village property a suit could be brought within a year from the date of taking of physical possession by the vendee, whereas section 31 of the new Act provides a period of 120 days from the date of registration of sale deed or from the date of attestation of mutation if the sale is made otherwise, or from the date of taking physical possession of the property if the sale is through a registered sale-deed or mutation.
Not only that a glaring change in the limitation was brought, but a stigma in the shape of demands, i.e. Talb-e-Muwathibat, Talb-e-Ishhad and Talb-e-Khasumat (filing suit in the Court of Law) were introduced, in absence of which pre-emption suit could not proceed irrespective of the fact that the pre-emptor had a preferential right of pre-emption.
12. Under Act XIV of 1950, right of pre-emption vested with a co-sharer, participator in immunities and appendages, contiguous owner and a landlord (in case of sale by an occupancy tenant of his occupancy rights). But in the existing Act X of 1987 no such right is available to a landlord, the pre- emption right of a tenant under M.L.R. 115 of 1972 was also taken away, being held repugnant to the Injunctions of Islam. Likewise, in the earlier law right of pre-emption on a foreclosure existed which is not available under the new Pre-emption Act. As such, shops, serais, katra club, a darmasal mosques, church or a charitable institution or building and agricultural land or village immovable properties not more than 2 Kanals for houses or a vacant site of 1 Kanal were exempted from pre- emption while under the prevailing law only Waqf property and property used for charitable, religious or public purposes are exempted. Accordingly, the controversy in the case in hand can conveniently be resolved.
13. It would be advantageous to reproduce section 23 of Act XIV of 1950 which reads as under:----- "Deposit of Pre-emption money:---
(1) In every suit for pre-emption the Court shall at any time before the settlement of issues require the plaintiff to deposit in Court such sum as does not, in the opinion of the Court, exceed probable value of the land or property or require the plaintiff to give security to the satisfaction of the Court for payment, if required, of a sum exceeding such probable value within such time as the. Court may fix in such order.
(2) In any appeal - - - - - - -
(3) Every sum deposited - - - - -
(4) If the plaintiff fails within the time fixed by the Court or within such further time as the CoCourt may allow to make the deposit or furnish the security mentioned in subsection (1) or (2), his plaint shall be rejected or his appeal dismissed, as the case may be.
(5)(a)--------------- (b)-------------
(6) ---------------
14. On repeal of Act XIV of 1950 and its replacement by Act X of 1987 read with amendment through Act X of 1987, the following corresponding section was introduced:--- "24. Plaintiff to deposit sale price of property.--(1) In every suit for pre---emption the Court shall require the plaintiff to deposit in cash one-third of the sale price of the property 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 Courts shall require to deposit 1 /3rd 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."
13. A bare reading of the aforementioned sections of law makes it clear that under the prevailing law the Court is powerless to grant extension for the deposit of pre-emption money. Under the unamended section 24 of the new Act the Courts were debarred to fix the date for deposit of Zar- e-Soam beyond 30 days together with fulfilment of requirement of 'Talab' as laid down in CLC 1993-622, 1993 CLC 1939. By amending section 24 by Act X of 1992, only the words "30 days" have been omitted and rest of the provision has been kept intact. This would mean that after the amendment the fixation of time-has been left open for discretion of the Court. By now the Courts can fix a time either more or less than 30 days keeping in view the circumstances of the case, as in both the cases before us the first order for deposit of Zar-e-Soam was fixes: beyond 30 days. But when once a time is fixed the plaintiff/pre-emptor shall be bound to comply with, within the time so fixed, and neither the (plaintiff) would be allowed to apply for further extension nor the Court would be competent to allow extension. The pre-emption right being a feeble right, pre-emptor seeking to exercise such right was bound to perform and fulfil its requirements meticulously and any failure in that behalf would deprive him of success in getting a pre-emption decree.
14. So far as the contention of applicability of section 148 C.P.C. Is concerned suffice it to say that the pre-emption Act is a special law vis----vis C.P.C. Which provides procedure for adjudication of civil disputes generally, but Pre-emption Act 1987 by itself provides procedure for certain matters. It is a generally recognized principle of law that special law shall prevail upon general law. Even otherwise the wording of section 148, C.P.C. Does not cover the order to make deposits under any other law but covers only those orders passed under different provision of C.P.C. Some of the provisions containing dictum can be referred to as instances of the Code itself i.e. Order 7 Rule 11 and Order 20, Rule 14, C.P.C. Whereunder the Court directs a plaintiff to supply requisite stamp paper, and direction to deposit purchase money respectively in a stipulated period which can 'be extended by Court under section 148 of the C.P.C.
15. For the aforesaid reasons we are of the firm opinion that the word I "shall" used in subsection (2) of section 24 of the N.-W.F.P., Pre-emption Act, 1987 is not mandatory but obligatory. It is true that the word "shall" used in different Statutes is interchangeable and could be construed as "may" but it is equally true that sometime 'may' be construed as 'shall'. In pre---emption cases the intention of legislature by inserting section 24(2) can be inferred that non-deposit of "Zar-e-Soam" by the pre-emptor at the first instance under the orders of the Court would be detrimental and fatal, and the Court has been left with no power to extend the time for such deposit.
16. As a result of the above discussion the impugned orders of the lower appellate Court in both the cases are well-founded and need no interference in exercise of our Constitutional jurisdiction. The writ petitions are without force and are hereby dismissed with no order as to costs.