Haji Khan Afzal, petitioner/plaintiff filed suit for possession through pre-emption and declaration against Rasool Shah, respondent/defendant in the Court of learned Senior Civil Judge Hangu. The said suit was resisted by the respondent by filing written statement in which the question of maintainability of the suit was also raised. The learned trial Court invited the learned counsel for the parties to argue the question of maintainability first and after hearing the learned counsel dismissed the suit alongwith compensatory cost of Rs.5,000 vide judgment and decree dated 2-4- 2002. Feeling aggrieved with the said judgment and decree the petitioner filed Appeal No.22/13 before the learned District Judge, Hangu, which was also dismissed vide judgment and decree dated 27-1-2003. Being not contended with the judgments and decrees of the Courts, below the petitioner has filed the revision petition in hand.
2. Mr. Muhammad Isa Khan the learned counsel representing the petitioner argued that the suit of the petitioner/plaintiff was dismissed for reasons that he had earlier filed another suit for possession through pre-emption in which he had failed to deposit one-third pre-emption money as per directions of the Court and the earlier suit had been dismissed. The subsequent suit (suit in hand) was dismissed on the ground that the earlier suit had already been dismissed though there was no specific bar in the N.-W.F.P. Pre-emption Act 1987 for bringing fresh suit if the same was within time.
3. It was further argued that the imposition of compensatory cost of Rs.5,000 was also very harsh.
The petitioner had brought subsequent suit with bona tide intention by adding another relief of declaration also, but the Courts below did not appreciate this position properly.
4. I have heard the learned counsel for the petitioner and perused the record.
5. The repealed N.-W.F.P. Pre--emption Act, 1950 contained section 23 for deposit of pre-emption money, relevant portion of the same is reproduced hereunder for convenience:-- "(1) In every suit for pre-emption the Court shall at, or 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 the probable value of the land or property, or require the plaintiff to give security to the satisfaction of the Court for the payment, if required, of a sum not exceeding such probable value within such time as the Court may fix in such order.
(2) In any appeal the Appellate Court may at any time exercise the powers conferred on a Court under sub--section (1).
(4) If the plaintiff fails within the --time fixed by the Court or within such further time as the Courts 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.
6. The law of pre-emption was brought in conformity with the Injunctions of Islam and Sunnah in obedience to the judgment of august Supreme Court of Pakistan in Said Kamal Shah's case. N.- W.F.P. Pre-emption Act, 1987 was promulgated in the N.-W.F.P. With effect from 28-4-1987 as per section 24 of the said Act. The relevant provisions whereof are reproduced hereunder:-- "(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 if no sale price is mentioned in the sale-deed or in the mutation, the Court shall require the deposit of one-third of the probable value of the property.
(2) Where the plaintiff tails 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."
The comparison of the above quoted two sections of law shows that under the old law (repealed N.-W.F.P. Pre-emption Act, 1950) the Court had the discretion to direct the deposit of any amount viz. The entire consideration mentioned in the sale-deed or sale mutation or partly thereof or partly in cash and partly security or security for entire amount. There was no restriction of time for deposit of amount or security and the Court also had the powers to extend the time. In the event of, default, the plaint had to be rejected with the result that if the period of limitation allowed, fresh suit could be filed.
7. With the promulgation of N.-W.F.P. Pre-emption Act, 1987, which brought the pre-emption law in conformity with the Injunctions of Islam as set out in Holy Qur'an and Sunnah, provisions of Talbs, as per section 13 of the ibid Act was made essence whereof. The pre-emptor immediately on coming to know of sale transaction, is to declare his intention to pre-empt the transaction by making Talb- e-Muwathibat, which is to be followed by notice of Talb-e-Ishhad, in writing attested by two truthful witnesses, under registered cover acknowledgement due, confirming his intention to exercise the right of pre-emption. This was made mandatory in order to create evidence regarding intention of the pre--emptor to pre-empt the transaction within a maximum period of two weeks. Under section 31 of the ibid Act, period of 120 days has been prescribed for Talb-e-Khusumat i.e. Tiling of suit for pre-emption.
8. Once the suit for pre-emption is filed, it is mandatory for the pre-emptor to deposit one-third of amount mentioned in sale deed or in the sale mutation or in other case, one-third of the probable value of the property in cash within a period of 30 days of the orders so- passed. In the event of non--compliance of the order of the Court to deposit one-third pre-emption money, the suit shall stand dismissed, which obviously clinches the matter against the pre-emptor. Once his suit is dismissed for non-deposit of one-third pre-emption money, he would be debarred from filing a fresh suit though he may still have time for filing the same. It is worth-mentioning that section 13 of the ibid Act provides one Talb-e-Khusumat. In absence of any definite provision allowing the second Talb-e-Khusumat, if the limitation period prescribed under section 31 of the Act permits this right cannot be imported into.
9. A similar proposition came up for hearing before the august Supreme Court of Pakistan in Haji Janat Gul Khan v. Haji Faqir Muhammad Khan and 4 others (PLD 1993 SC 204), in which it was held:- - "The substitution of the rejection of the plaint in the repealed Act through the dismissal of the suit in the new Act is suggestive of the fact that the failure to deposit the amount of one-third in cash and two-third as bank guarantee or the whole amount in cash entails dismissal of the suit and has the effect of barring a fresh suit. Reading the two provisions in conjunction, there is no doubt left that the dismissal of the suit under section 24 of the Act ibid finally determines the rights of - the parties albeit, subject to the decision of the appeal or revision. "
10. Keeping in view the provisions of N.-W.F.P. Pre-emption Act, 1987 and the above mentioned dictum laid down by the august Supreme Court of Pakistan I am of the firm view that failure of pre- emptor to deposit the one-third pre-emption money entails dismissal of his suit as envisaged under section 24 of the ibid Act and the dismissal of the earlier suit shall have the effect of barring a fresh suit.
11. The argument of the learned counsel for the petitioner that the petitioner had tiled subsequent suit by adding relief for declaration also, hence his suit could not be dismissed also has no force at all. The earlier suit tiled by the petitioner was for possession through pre-emption of property in dispute at that time he did not add the relief for declaration and as per. Provisions of Order 2, Rule 2, C.P.C. Every suit has to include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action but he may relinquish any portion of his claim in order to bring the suit within jurisdiction of a particular Court but when the plaintiff omits to sue in respect of or intentionally relinquishes, any claim is claimed he shall not afterwards sue in respect of the suit so omitted or relinquished, the petitioner in view of Order 2, Rule 2, C.P.C. Was also barred to add the relief of declaration which he had opted to omit in the earlier suit. Moreover, the declaration sought for shows that through the said declaration the petitioner wanted to achieve the object indirectly which he had earlier failed to achieve directly.
The Courts below have rightly dismissed the suit as well as appeal and I have not been able to find out any material irregularity or any jurisdictional error or defect warranting interference in the impugned concurrent findings of the Courts of competent jurisdiction. Resultantly, the revision petition in hand is dismissed in limine.