' This appeal is directed against the Judges and decree of the learned Additional District Judge, Bhimber dated 5-4-1995, whereby the Judgment and decree passed by the learned Sub-Judge Bhimber dated 30-7-1994 was set aside.
2. The succinct facts forming the background of the instant appeal are; that on 24-7-1985, the appellant (plaintiff) brought a suit for declaration cum for possession, stating therein, that the defendants Nos.1 to 4 alienated the land measuring 6 Kanals, 12 Marlas and 4-1/2 Sarsai out of land measuring 48 Kanals, 15 Marlas and 1-1/2 Sarsai present Khewat No,58/10 Khata No,326/38 and land measuring 3 Kanals, 9 Marlas and 6 Sarsai from the land measuring 38 Kanals, 17 Marlas present Khewat No,113 Khata Nos.570 to 579 situated in village Kote Tehsil Bhimber to defendants Nos.5 to 9 in lieu of Rs,2,20,000. The defendants No,1 to 4 alienated the land from more than their prescribed share. They were not entitled to alienate the land from more than their prescribed share, therefore, the sale-deed may be declared null, void and inoperative on their rights. Alternative, a decree for possession on the basis of the right of prior purchase was also claimed.
3. During the pendency of the suit, another suit was filed by Manzoor Ahmed for the possession on the basis of the Right of prior purchase. During the trial of the suit, the plaintiff Rehmat Ali was ordered to deposit the proclamation fee, but he could not deposit the same within the provided time, therefore, his suit was dismissed. He filed an appeal before the learned District Judge Mirpur, which was dismissed by him. He filed an appeal before the High Court. His appeal was accepted by the said Court and the case was remanded by the High Court vide order dated 27-1-1990. During the aforesaid period, the suit of Manzoor Ahmed remained continue before the Sub-Judge. After the remand of the case of Rehmat Ali, the learned Sub-Judge vide order dated 5-3-1990, decreed the suit of Manzoor Ahmed. He was ordered to deposit the decreetal amount within ninety days, otherwise, his suit shall be deemed to be dismissed.
4. Rahmat Ali filed another suit, whereby he also challenged this decree. Subsequently, he sought amendment in his original suit which was allowed and he withdrew the subsequent suit. Through the aforesaid amendment, he also challenged the decree on the ground, that it was collusive.
5. The learned Sub-Judge vide Judgment and decree dated 30-7-1994 dismissed the suit of Rehmat Ali. Feeling aggrieved from the Judgment and decree of the learned Sub-Judge, Rehmat Ali filed an appeal before the learned Additional District Judge, Bhimber, who accepted the appeal of Rehmat Ali and held that Manzoor Ahmed rival pre-emptor could not deposit the decretal amount within ninety days, therefore, his suit was deemed to be dismissed and decreed the suit of Rehmat Ali. Now the instant appeal has been filed against this Judgment and decree of the learned Additional District Judge, Bhimber.
6. Raja Hassan Akhter, the learned Counsel for the appellant pegged his arguments on the ground, that the decretal amount was paid to the vendees by the appellant out of the Court on 27-5-1990.
After receiving the decretal amount, they executed a receipt. The appellant moved an application before the Sub-Judge Bhimber on 27-5-1990 alongwith that receipt, that he had paid the decretal amount to the vendees. This payment was certified by the learned Sub-Judge Bhimber, so the decree has attained finality. The learned Additional District Judge, Bhimber had wrongly held that the decretal amount was not paid in accordance with law. The learned counsel for the appellant submitted, that if the decretal amount would have been deposited in the Court, even then it would have been paid to the vendees, while the appellant directly made the payment to the vendees. The payment made out of the Court was certified by the Court, therefore, the suit could not be dismissed for not depositing the decretal amount in the Court. The basic purpose of deposit of decretal amount into the Court was to make the payment to the vendees. The decrectal amount directly paid to the vendees was as good as it was deposited in the Court. In this respect he referred, PLD 1973 BJ 42 and AIR 1963 Punjab 133 in support of his contention. He submitted, that the payment made out of the Court within stipulated period is also as good as it was deposited in the Court.
7. While controverting the arguments of the learned counsel for the appellant, the learned Counsel for the respondents, Raja Muhammad Siddique Khan, contended that Order 20, rule 14 is mandatory. It was obligatory for the appellant-plaintiff to deposit the decretal amount into the Court within stipulated period. Order 20, rule 14 of C.P.C. Did not recognize any payment out of the Court. The payment made out of the Court could not be considered as deposit in the Court. He submitted, that even otherwise, the suit of the appellant-plaintiff was collusive, so he did not make any payment and fictitious receipt had been prepared. He submitted, that although issue regarding collusive suit has been decided against the respondent, but despite this the Court for doing justice can look into the matter, whether the suit was collusive or not? He submitted that the main proof regarding the collusive suit was that both the vendees and rival preemptor (present appellant) filed a joint written statement in the case of respondent (plaintiff) and both also engaged one counsel, while their interest was not common. He submitted that the payment made out of the Court is no payment in the eye of law, therefore, the Judgment and decree of the learned Additional District Judge, Bhimber is based on sound, cogent and sagacious reasonings and warrants no interference. He referred PLD 1978 Azad J&K 1; PLD 1983 SC (AJ&K) 156 and PLD 1994 Lah.
200 in support of his cotentions.
8. I have heard the learned Counsel for the parties and perused the relevant record and given my utmost muse to the respective arguments advanced by the learned Counsel for the parties.
9. The primary and important question requiring determination in the instant case is, whether according to the terms of the decree, it was binding for the appellant-plaintiff to deposit the decretal amount into the Court as provided in Order 20, rule 14 of the C.P.C.
' Order 20, rule 14 of the C.P.C. Contains, that wherein the Court decreed a claim in a pre-emption suit, the Court shall specify a day on or had before which the purchased money should be deposited into the Court and if the purchase money is not deposited into the Court, as directed by the Court, than his suit shall be deemed to be dismissed. For comprehending Order 20, Rule 14, I would like to re-produce the same, which is as under:-- "Decree in pre-emption suit.--Where the Court decrees a claim to preemption in respect of a particular sale of property and the purchase-money has not been paid into Court, the decree shall:-
(a) specify a day on or before which the purchase-money shall be so paid; and
(b) direct that on payment into Court of such purchase money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with costs."
' Now the question emerges, whether this Order is mandatory or not?
' Order 20, rule 14 contains, that decree shall specify the date on which the payment is to be made into the Court. No doubt that this provision contained word "shall", simply on the basis of word "shall", it could not be said that provision was mandatory. It is well-established principle of law, that when the provision containing word" shall" also contained penalty in case of its disobedience the provision shall be mandatory. This view finds support from the case titled" Ghulam Mohyuddin v.
Muhammad Bakash" reported in PLD 1979 Lahore 766 relevant page 780, which reads as under:-- ' "There is a more vital aspect of the matter. It has after been commented that too much adherence to technicalities might hinder, instead of advancing, justice. As a general proposition this is correct but it depends upon the nature and the wording of the relevant provisions of law as also the underlying legislative intent, in order to discover whether a so-called techincal provision needs to be followed strictly and departure therefrom would not only render the act as unlawful but also unjust. Rule 14 of Order XX, which provides that purchase money would be paid into Court is in a mandatory form. Not only this but it further provides that the decree itself shall direct the payment into Court of the pre-emption money. And this is what is not only normally expected of the Court but is also normally observed by it. The preemption decrees do, as a matter of form also specify that the purchase money is to be paid into Court by a certain specified date. If it would not have been a mandatory provision the matter would have been left by the Legislature at that. In clause (b) of sub-rule (I) of rule 14, positive and negative penalties are provided if and when the direction for payment into Court is not complied with; ' They are:--
(i) the defendant shall not be obliged to deliver the possession of the property to the plaintiff/decree-holder unless 'such payment' (into Court) is made;
(ii) the title of the decree-holder to the property shall not be deemed to have accrued till the date of such payment; and
(iii) the negative penalty is to the extent that if the purchase money is not 'so paid' in the mandatory form, i,e,, in Court) the 'suit shall be dismissed with costs'.
' Under sub-rule (2) of rule 14, similar results would follow if in case of more than one pre-emptors, one pre-emptor fails to make the payment into Court, his suit would be dismissed and the other pre-emptor would then come in the field to fulfil the condition of payment and achieve full success, and so on. Therefore, when the provision is mandatory of the afore-discussion type, the plaintiff cannot afford and also cannot be permitted to take shelter on the general principle that technicalities should not be permitted to hinder justice.
' In addition to the above way of interpretation it is necessary, as is the rule in Pakistan (distinguished from some other countries) to consider and adopt, if possible, pragmatics rule of interpretation. This question directly arises out of another reasoning rule adopted in some of the cited rulings, namely the rule of 'substantial compliance'.
' Now when the Order 20, rule 14 of the C.P.C. Is mandatory, then it was enjoined upon the appellant (plaintiff) to strictly comply the aforesaid provisions.
10. It is pertinent to note, that the right of the pre-emption is piratical right, so the provision of the pre-emption Act and all other provisions for enforcing such right are necessarily to be construed conservatively and applied strictly. This view finds support from PLJ 1982 SC (AJ&K) 73, (sic) which is as under:-- ' "Firstly, it is to be seen as to how a provision of pre-emption law is to be interpreted. The right of pre-emption being in the nature of a piratical right the Courts have always leaned against it and while allowing such a right have consistently insisted upon the strict compliance of law applicable to pre-emption; and this is the reason that the provisions of pre-emption Act are necessarily to be construed conservatively and applied strictly. The Courts are to Act mechanically and are required to consider critically the circumstance which led to an omission."
' In the light of the above dictum of the Supreme Court, it is very clear that all the provisions regarding the Right of pre-emption are to be strictly construed and followed, therefore, it was enjoined upon the plaintiff-appellant to follow the Order 20, rule 14 of the C.P.C.
11. No doubt that there are some cases in which the payment out of the Court has been considered sufficient compliance of the pre-emption decree. In AIR 1973 Punjab 319, AIR 1921 Allahabad 159, AIR 1963 Punjab 133 and PLD 1973 BJ 42, it has been held that the payment out of the Court to the vendee. Certified by the Court is sufficient compliance of the decree. In all these cases, the deposit out of the Court was considered on the basis of Order 21, rule 2 of the C.P.C., which is as under:-- "(2) The Judgment-debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly."
' Order 21, Rule 2 of the C.P.C. Suggests, that the payment can be made out of the Court and when the same is certified by the Court, then it can be adjusted. It was also observed by the Courts that this rule is not confined to the money decree, it may apply the other cases.
11. It could not be said that this rule by its own force would also apply to the decree in the pre- emption cases and it was observed by the Division Bench of the Lahore High Court in case titled "Ghulam Mohyuddin v. Muhammad Bakahsh", that this Order 21, rule 2 will not apply to the pre- emption cases, and wider cogent reasonings have been given in the aforesaid case, I would like to re-produce the finding of the Court, reported in PLD 1979 Lahore 766 relevant page 778, which are as under:-- ' "Although as noted in some of the rulings including one of this Court, it has been held that Order XXI, rule 2 is not confined to only money-decrees and might in proper cases apply to other decrees, yet it cannot be said that the rule by its own force would apply to the decree in preemption cases.
One important consideration to be kept in mind is that in the same Code, in addition to the general provisions contained in rules 1 and 2, Order XXI there are special provisions with regard to the payment of purchase money in pre-emption decrees containing in Order XX, rule 14. Under an accepted rule of interpretation the special provisions would to the extent of inconsistency exclude the general provisions. This is not the only consideration, if the history of the relevant provisions in the Pre-emption law and Code of Civil Procedure is kept in view, it becomes absolutely clear that the Legislature from the very beginning laid emphasis on separate treatment of the subject of made of payment of the pre-emption money by a pre-emptor to the vendee as distinguished from the payment of money by a Judgment-debtor to the decree-holder. While in connection with pre- emption, barring a very short period in the last century when no independent provisions/mode existed in this behalf, in the later statutes, it has always been laid down that the purchase money shall be paid into Court while other sums under the money and other decrees could be paid out of the Court under Consideration."
12. As the case referred by the learned Counsel for the appellant PLD 1973 BJ 42 is concerned, it has been overruled by the Division Bench of the Lahore High Court, in the aforesaid case titled "Ghulam Mohyuddin v. Muhammad Bakahsh", reported in PLD 1979 Lahore 766.
13. I am in entire agreement with the view expressed in PLD 1979 Lahore 766 and fully endorse the view, whereby, the PLD 1973 BJ 42 was not followed and overruled. The question involved in the reports is of seminal importance, therefore, I feel -that I should also add my own additional reasoning for differing with the view expressed in PLD 1973 BJ 42, so I would like to articulate my reasons as under:-- ' With utmost respect to the learned Judge, the author of the Judgment reported in PLD 1973 BJ 42, I am unable to agree with him for the following reasons. The view expressed by the learned Judge is not prespicuous and there is no concordance in it, rather it is cleavage of two contradictory version and self-impinging. In the aforesaid report it was observed as under:-- "The money paid out of Court cannot be in strict compliance of the terms of the decree, but if the money has been so paid and the payment has been duly certified by the Court, then the payment can be considered as sufficient compliance of the decree. It is true that technicalities are relevant to the law of pre-emption, and that a person, who wishes to avail himself of a right under such law, is required to exercise the utmost vigilance and to take care to see that he complies strictly with all the conditions imposed upon him."
14. It bewilders me that on one hand it was observed in the aforesaid report, that the technicalities are relevant to the law of pre-emption and who wishes to avail the right of pre-emption must be vigilant and take care to see that it should be strictly complied with and the payment made out of the Court was not according to Order 20, Rule 14 of the C.P.C., it was not sufficient compliance of the aforesaid rule, but maugre of this on the other hand such payment was considered a compliance of the decree. It is quite astonishing, that if the view formed by the learned Judge that "technicalities are relevant to the law of pre-emption and the person, who wishes to enforce the right under such law is required to exercise utmost vigilance", then how the learned Judge in the same case considered the payment made out of the Court.
15. As stated above that our own Supreme Court has also observed that the right of pre-emption is a piratical right and while allowing such right, the Court should strictly comply with the law and rules applicable for enforcing such right, therefore, the Lahore High Court has rightly observed in the aforesaid Division Bench case, that the payment out of the Court is not sufficient compliance of Order 20, Rule 14 of the C.P.C. I am fully in agreement with the view expressed by the Division Bench of the Lahore High Court in case titled "Ghulam Mohyuddin v. Muhammad Bakahsh", reported in PLD 1979 Lahore 766.
16. The epitome of the above discussion is that the alleged payment made out of the Court by appellant could not be considered as compliance of the Judgment and decree required under Order 20, Rule 14 of the C.P.C., thus, the C judgment and decree passed by the learned Additional District Judge, Bhimber is perfectly legal and requires no interference, therefore, this appeal is hereby dismissed.