' The petitioners acquired the suit-land through execution of a decree for specific performance dated 17-3-1991 in pursuance of which sale-deed dated 27-7-1991 was registered. The sale consideration was mentioned as Rs,2,50,000 in the said sale-deed.
2. Respondents Nos.3 and 4 filed a suit for possession through pre-emption against the said sale on 18-11-1991. In their plaint, the sale price was alleged to be Rs,1,50,000 only and it was averred that the sum of Rs,2,50,000 was incorrectly mentioned in the sale-deed.
3. The learned trial Court on 18-11-1991 i,e, the date of institution of the suit passed an order reportedly under section 24 of the Punjab Pre-emption Act, 1991 directing the deposit of Rs,50,000 as preemption money on or before 16-12-1991. The said sum was deposited by respondents Nos.3 and 4 vide receipt produced in the Court. The suit remained pending for service of the defendants.
As per the record, written statement was filed by the petitioners on 14-3-1992 wherein apart from controverting the various pleas raised by respondents Nos.3 and 4, it was specifically stated that the petitioners had acquired the suit-land through a decree for specific performance and that the actual sale consideration was specifically mentioned as Rs,2,50,000 in the sale-deed registered in execution of the decree. The petitioners on the same date filed two applications. The first application was for the dismissal of the suit under the provision of section 24(2) of the Punjab Pre- emption Act, 1991 in that the plaintiffs had not deposited the, proper 1/3rd pre-emption money amounting to Rs,83,333.33, although the sale consideration of Rs,2,50,000 was stated in the sale- deed. In the other application, it was contended that as the plaintiffs have not fixed the proper court-fee upon the plaint, the same was liable to be rejected under Order VII, rule 11, C . P.0 .
4. Both the applications were resisted. It was contended by the plaintiffs/respondents Nos.3 and 4 that the Court itself vide order dated 18-11-1991 had directed the deposit of Rs,50,000 as . It was further contended that this was according to the actual sale price which was alleged by the plaintiffs in their suit. The respondents further maintained that if the petitioners were aggrieved of the order of the learned trial Court dated 18-11-1991, they could have challenged the same through proper proceedings in a higher forum. The application under Order VII, rule 11, C.P.C. Was also resisted on similar grounds.
5. Both these applications were disposed of by the learned trial Court by its order dated 18-4-1992.
The learned trial Court held that the deposit of Rs,50,000 was made in accordance with the order passed by the Court and allowed the plaintiffs to deposit the balance amount of I/3rd pre-emption money uptill 3-5-1992. It also framed an issue about the valuation for the purpose of court-fee.
6. The petitioners challenged the said order through a civil revision which was dismissed by the learned District Judge, Rahimyar Khan vide judgment dated 2-5-1992. While maintaining the order of the learned trial Court, the Revisional Court found that the non-deposit of proper Zar-eSalasa could not be attributed to the plaintiffs as they complied with the order of the Court directing them to deposit Rs,50,000 only. It was .Found that no party can be penalized for an act of the Court.
7. The order, dated 18-4-1992 passed by the learned trial Court and the judgment, dated 2-5-1992 passed in revision have been assailed through this writ petition.
8. Syed Masood Ahmad Gillani, Advocate for the petitioners strongly contended that there was no manner of doubt that the sale consideration was fixed at Rs,2,50,000. The petitioners had acquired the suit-land as a result of full-tided proceedings in a suit for specific performance. The decree for specific performance not only found the petitioners entitled to acquire the suit-land, it also Conclusively determined the sale consideration. It was in accordance with this decree the sale- deed, dated 27-7-1991 was executed in favour of the petitioners. It specifically mentioned the sale consideration to be Rs,2,50,000. The learned counsel for the petitioners added that along with the suit for pre-emption, respondents Nos.3 and 4 had themselves appended the copy of the registered sale-deed. He contended that in this view of the matter, respondents Nos.3 and 4 had acted in a mala fide manner when they succeeded in obtaining an incorrect order for deposit of Zar-e-Salasa from the learned trial Court on 18-11-1992. While highlighting the mala fides of respondents Nos.3 and 4, the order dated 18-11-1992 passed by the learned trial Court was criticised on the ground that it was made incomplete ignorance or violation of the second proviso to section 24(1) of the Act of 1991. He further contended that neither the learned trial Court could extend the time beyond 30 days of the institution of the suit nor could the revisional Court condone such action of the learned trial Court. According to him, the principle that no party shall be prejudiced by an act of the Court was not attracted in the circumstances of the case.
9. Syed Muhammad Anwar Shah, Advocate for respondents Nos.3 and 4 contended that the learned trial Court was competent to pass a proper order for deposit of 1/3rd pre-emption money basing its decision on the averments contained in the plaint. He further submitted that even though the initial order be found to be deficient in the required amount, the learned trial Court was not denuded of its power to extend the period for deposit of the balance amount. He relies upon the case of Ghulam Hassan v. Jamshaid Ali and others 2001 SCM R 1001 to contend that application of correct provision of law is the duty of the Court and that an act of the Court shall not prejudice any party. Further reliance was placed upon the case of Gulzar Ahmad v. Sardar Alam and 9 others 2001 CLC 1693 wherein a defective order passed by the learned trial Court for deposit of 1/3rd pre- emption money was disapproved and it was emphasised that as the consequences provided for not compliance of an order of the Court would entail dismissal of the suit. It was necessary that the order for deposit should be passed in accordance with law. The case of Sherin and others v. Fazal Muhammad and others 1995 SCM R 584 was also relied upon in support of the same contention.
10. From the respective contentions of both the parties, the following points arise for consideration:- -
(i) Whether a pre-emptor who bases his suit upon a registered sale-deed can deviate from the sale price mentioned in the same and substitute it for a lesser amount for the purpose of deposit of Zar-e-Salasa.
(ii) Whether a pre-emptor can in all cases seek protection under the Maxim "actus curiae neminen gravabit' (an act of Court shall prejudice no man) when a Court has acted upon the plaintiffs representation in oblivion of the statutory requirement;
(iii) Whether the Court can enlarge time for deposit of 1/3rd pre-emption money in disregard of .The first proviso to section 24 subsection (1) in order to rectify an incorrect order passed by it earlier.
11. The decision of this writ petition shall mainly rest on the interpretation of section 24 of the Punjab Pre-emption Act, 1991.
' It reads as under:-- "S.24. Plaintiff to deposit sale price of the property.--- (1) In every suit for preemption, 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 subsection (1) within the period fixed by the Court, or withdraws the sum so deposited by him, his suit shall be dismissed."
12. It is clear from this provision of law that it is the duty of the Court to require the plaintiff to deposit 1/3rd Of the sale price in A Court within a period of 30 days of the filing of the suit. The first proviso referred to above is in a mandatorya form. It is emphasised that the period within which the Court shall require the deposit shall not extend beyond 30 days of the filing of the suit. The word "require" has been employed in this section for the Court to act in an authoritative and imperative manner.
The second proviso needs special. Attention in the circumstances of the present case. The sale price if mentioned in the sale-deed or in the mutation shall preclude the Court from fixing any price other than that so mentioned. The power extended to the Court to require the deposit of 1/3rd of the probable value of the property is also provided only when the price so mentioned appears to the Court to be inflated. The onus on the Court in this respect is both light and heavy. It is light in the sense that the only thing that a Court is prima facie mandated by law to see is the sale' price mentioned in the sale-deed or the mutation in question. The onus may also be heavy when the Court has to come to a conscious decision at the very outset of the institution of the suit to decide if the sale price mentioned in the . Sale-deed or the mutation is inflated. In either case, however the Court is to blindly follow the sale price given in the plaint which is different from the one which is mentioned in the sale-deed.
13. Having thus interpreted this provision of law, it has now to be seen whether or not respondents Nos.3 and 4 acted bona fide and in accordance with law when they deviated from the sale price mentioned in the sale-deed and alleged the lesser value (Rs,1,50,000) in the plaint. There is no cavil with the proposition that it is always open for a pre-emptor to challenge the ostensible sale price and prove a lesser price during the trial. For the purpose of determination of Zar-eSalasa, however, such a plea in the plaint is totally irrelevant in view of the mandatory provisions of section 24(1) second proviso of the Act. This is even more so when the preemptor has appended the relevant sale-deed with his plaint and is in the full knowledge of the sale price mentioned therein. It may not be out of place to mention that the sale-deed itself was a result of a decree in a suit for specific performance filed by the petitioners. The sale price so determined by the Court of competent civil jurisdiction shall be conclusive unless altered or varied in that hierarchy.
14. This being so, the pre-emptor in this case would not be entitled to the exercise of discretion in their favour as they had themselves led the Court to pass an erroneous WA- on 18-11-1991.
15. It would now be appropriate to examine the maxim "actus curiae neminen Egravabit" which comes into play with a view to avoid hardship which may otherwise be the result of an erroneous act of the Court. It is a cardinal principle of administration of justice that an unwary litigant should not suffer on account of an error of the Court itself. It is the duty of the Courts of justice that they should act to relieve parties against any injustice which may have been occasioned by its own act.
It is also not denied that this beneficial maxim may be extended even to a party against whom contributory negligence can be made out. But having said that, it is not the intention of law and certainly not of any principle of administration of justice to give premium to a paity who, knowingly makes such representation which leads the Court to commit an error. The learned trial Court may have ignored the mandatory provision of law as contained in section 24 (supra) but that did not in any manner exonerate the pre-emptor of his own duty to fulfil his obligations mandated by law. In view of the conduct of the pre-emptor in the present case, extending the benefit of the maxim "actus curiae neminen gravabit" to him would be a travesty of justice.
16. The next important question as to whether a Court is entitled to enlarge time for deposit of Zar- e-Salasa is again to be decided upon the touchstone of interpretation of section 24(1)(2) of the Act, 1991. That the provisions of this section are mandatory needs no reiteration. The duty of the Court to be aware of the law and to follow the same also calls for no over-emphasising. It is the duty of the Court to pass correct and legal orders. It may even, in certain circumstances be pursuaded to rectify its own erroneous orders to obviate the hardship of a party. The penal consequences of an erroneous order passed by a Court under section 24(1) may be fatal for the suit of a pre-emptor if non-compliance is made under section 24(2) (ibid). Situation of such nature are noticed in the case of Mian Muhammad Lutfi v. Mian Muhammad Talha Adil NLR 2000 Civil 422, Ghulam Hassan v. Jamshaid Ali and others v. Gulzar Ahmad v. Sardao Alam and 9 others (supra).
Where however, as in the instant case, the conduct of the pre-emptor is mala fide and motivated to intentionally tlout the mandatory provision of law by concealing the original sale price as given in the sale-deed, such contumacious conduct cannot become the basis of exercise of discretion in his favour. Strength for this proposition is derived from the rule laid down in the case of Shahab- ud-Din and 5 others v. Mir Ali Khan 2001 SCM R 543 wherein it has been observed "thus it is obvious that the plaintiff in a mala fide and motivated way intentionally flouted the mandatory provision of law and the District Judge as a revisional Court, by exercising the discretion, extended period rather placed premium on the fraudulent conduct of the plaintiff while the High Court was not competent to exercise such jurisdiction as second revision was not competent before it. Even if it was competent to exercise jurisdiction in the matter, then it should have taken all the circumstances into consideration before using discretionary power. Discretion should be exercised in a manner to advance justice and not to violate statutory provision. The learned counsel appearing for the respondent could not controvert the arguments that the conduct of his client has throughout remained objectionable as he purposely concealed the relevant document from the Court and did not narrate true facts in his plaint so as to achieve his object. In the case of Muhammad Nawaz v.
Muhammad Siddique and others 1995 SCM R 105, similar view was expressed in the following terms:-- "If the sole object of a pre-emptor in filing of an appeal is to delay deposit of the pre-emption money, about the correctness of which there cannot be any reasonable doubt, to a reasonable man, in such a case an Appellate Court may decline to extend the time."
17. In view of the above, it would not be an exercise of judicious discretion to enlarge the time for deposit of Zar-e-Salasa as the erroneous order passed by the Court was basically a result of the derelict conduct of the pre-emptor.
18. As a sequel of the above discussion, this writ petition is allowed and the judgment dated 2-5- 1992 passed in revision by the learned District Judge and the order dated 18-4-1992 passed by the learned trial Court are set aside with the result that the suit for pre-emption stands dismissed.
Respondents Nos.3 and 4 shall, however, be entitled to the refund of the pre-emption money deposited in the Court. The parties to bear their s own costs.