JUDGMENT MAULVI ANWARUL HAQ, J. - The respondents purchased the suit land for an ostensible consideration of Rs. 40,000/- vide mutation No. 1782, dated 25.8.1997. The petitioner filed a suit for possession of the suit land by pre-emption. In his plaint he inter alia alleged that the sale had taken place in fact tor a consideration of Rs. 30,000/- and that a sum of Rs. 40,000/- shown in the said mutation by way of consideration is fictitious. This suit came up before a learned Civil Judge, Pattoke on 23.12.1997 Mien the learned Trial Court proceeded to issue summons to the respondents for 23.1.1998 i.e. a date beyond 30 days of the filing of the suit. In all probability the learned Civil Judge was not aware as to the nature of the suit he was dealing with and neither any effort was made to determine the probable value in view of the allegation of the petitioner in the plaint nor he issued any direction to the petitioner to make a deposit of 1/3rd of the said probable value. Be that as it may, after service the respondents appeared on 18.2.1998 and tiled a written statement on 10.3.1998. It were the respondents who pointed out to the Court that the petitioner had not made a deposit of 1/3rd as required by Section 24 of the Punjab Pre-emption Act, 1991. The learned Trial Court proceeded to dismiss the suit of the petitioner vide judgment dated 14.4.1998. The appeal filed by the petitioner was dismissed by a learned Addl. District Judge, Pattoke vide judgment dated 22.2.1999.
2. Mr. N.A. Butt, learned counsel for the petitioner contends that since no order was passed by the learned Trial Court within the meaning of Section 24 of the said Act, there was no question of its non-compliance and consequently imposition of penalty by way of dismissal of suit. On the other had, Ch. Zahoorul Haq, learned counsel for the respondents relying on the case of Mehboob Khan Vs. Sher Baz Khan and another (1993 CLC 1939) urges that the impugned judgments and decrees are in accordance with law.
3. I have gone through the certified copies of the record appeared with the Civil Revision. The contention of the learned counsel on the factual side is borne out from the record that no order was passed by the Trial Court in accordance with Section 24 of the said Act. It will be advantageous to reproduce the said provision of law here:- "24. Plaintiff to deposit sale price of the property.
(1) In every suit for pre-emption the Court shall require the plaintiff to deposit in such Court one- third of the sale price of the property in cash within such period as the Court may fix: Provided that such period shall not extend beyond thirty days of the filing of the suit: Provided further that if no sale price is mentioned in the sale- deed or in the mutation, or the price so mentioned appears to be inflated, the Court shall require deposit of one-third of the probable value of the property.
(2) Where the plaintiff fails to make a deposit under sub-section (1) within the period fixed by the Court or withdraws the sum so deposited by him, his suit shall be dismissed.
(3) Every sum deposited under sub-section (1) shall be available for the discharge of costs.
(4) The probable value fixed under sub-section (1) shall not affect the faul determination of the price payable by the pre-emptor."
A reading of the said provisions of law would show that primarily the law casts a duty upon the Court in terms to require the plaintiff to deposit in Court 1/3rd of the sale-price of the property within a period which is not to extend beyond 30 days of the filing of the suit. As stated by me above, the learr. Ed Trial Court in all probability was not even aware that it was dealing with a pre- emption suit while summoning the respondents for a date beyond 30 days and not caring to pass an order which he was under the law required to pass.
4. The second proviso to sub-section (1) of Section 24 provides that in case the price appears to be inflated then probable value is to be fixed. The perusal of the record shows that the learned Trial Court proceeded to issue notice to the respondents even without going through the plaint. Had he gone through the plaint he would have found that the petitioner had questioned the ostensible price shown in the mutation and the learned Trial Court was required to make a tentative determination in the nature of a probable value. Be that as it may, the fact remains that no order whatsoever was passed by the Court for deposit. Penalty for non-deposit is provided in sub- section (2) which provides that the suit of the plaintiff shall be dismissed if he fails to make deposit within the period fixed by the Court. There is no justification whatsoever for dismissal of the suit as the terms of the penalty clause do not stand fulfilled. There is no order fixing the time by the Court and a suit can be dismissed only if the plaintiff falls to make the deposit within the time so fixed by the Court.
5. The case of Mehboob Khan cited by the learned counsel tor the respondents proceeds on the prohibition spelt out in Section 24 of the said Act on a Court probability it to extend the time beyond 30 days of the filing of the suit. Mr. Justice Ch. Mushtaq Ahmad referred the case of Awwal Noor Vs. District Judge, Karak and 8 others (1992 SCM R 746) while holding that even if at any time no order is made by the Court tor deposit the said penal provisions would take effect. The said case of Awwal Noor arose under Section 24 of the NWFP. Pre-emption Act. 1987 which provisions in paramateria with those of Section 24 of the Punjab Act IX of 1991. The rule laid down in the said case of Awwal Noor, in my humble opinion, does not support the Rules laid down in the said case of Mehboob Khan. In the said case of Awwal Noor what happened was that on the date the suit was tiled the Court determined the probable value and directed the pre-emptor to deposit a sum of Rs. 5,000/- before 24.10.1987. Later on when the defendants appeared they appraised the Court that the sale had in fact taken place for-a sum of Rs. 2,25,000/-. The Court then vide a subsequent order directed the petitioner to deposit a sum of Rs. 70,000/-. The plaintiffs in the case first filed a Civil Revision and then they filed a writ petition in the Peshawar High Court which was also dismissed and the matter went to the Supreme Court and what held by the Supreme Court was that the Court had no power to order deposit of 1/3rd amount beyond 30 days of the filing of the suit. Going by the said dictum of the apex Court, in the present case what to speak of dismissing the suit the learned Trial Court could not have even directed the petitioner to deposit the amount, in view of the prohibition contained in the said provision of law. Respectfully following the dictum of the apex Court I find that it was the learned Trial Court which failed in its duty imposed .Upon it by law and not the petitioner and after 30 days of the filing of the suit the Court could not have even asked the petitioner to make any deposit. Needless to and here that an act of Court is not to prejudice any party to the lis. Courts of law are required to act with diligence and in case they fail to perform their duty a party cannot be penalised for their failure. Reference may be made to the case of Sherin and 4 others V.v. Fazal Muhammad and 4 others (1995 SCM R 584), wherein the following observations of Lord Cairns, L.C. In Rodger v. The Comptoir Escompte de Paris (1871) 3 P.C. 465 were quoted with approval:- "One of the first and highest duties of all Courts is to take care that the act of the Court does not cause injury to any of the suitors and when the expression 'the act of the Court', is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of Appeal, but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case."
The apex Court further approved of the following observations of Lord Atkan in East Suffolk Rivers Catchment Board v. Kent and another (1941 AC 74):- "I treat it therefore as established that a public authority whether doing an act which it is its duty to do, or doing an act which it is merely empowered to do, must in doing the act do it without negligence, or as it is put in some of the cases must not do it carelessly or improperly. Now quite apart from a duty owed to a particular individual which is the question in this case I suggest that it would be difficult to lay down that a duty upon a public authority to act without negligence or not carelessly or improperly does not include a duty to act with reasonable diligence by which 1 mean reasonable dispatch."
The Civil Revision is accordingly allowed. The judgments and decrees of both the Courts below are set aside and the said suit is remanded to the learned Trial Court wherein it would be tried and decided in accordance with law. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.