Haji Muhammad Sharif plaintiff---petitioner herein had instituted a suit for pre--emption of sale of land measuring 3-Kanals, 6-Marlas, situated in Khatoni No.288/905---919, Khasra Nos.905/1028 and 2557/1332, Mauza Talian, Tehsil and District Jhelum.
2. The suit property was transferred for a consideration of Rs.1,65,000. The plaintiff averred in the plaint that the actual sale price was settled in good faith and paid to the vendor was Rs.25,000 and in order to defeat his superior right of pre-emption, an excess amount has been shown in the mutation of sale. The plaintiff has claimed his superior right of pre-emption being a co-sharer in the Khata in dispute.
3. Before filing of the present suit, the plaintiff-petitioner has also filed a pre--emption suit on 2-5- 1992 wherein the Court directed him to deposit Rs.5,500 as Zare-e---Soam before 2-6-1992 but the plaintiff failed to deposit the same as a consequence thereof, his suit was dismissed under section 24 of the Punjab Pre-emption Act, 1991.
4. The suit was contested by the defendants-respondents who filed an application under Order 7, rule 11, C.P.C. Contending therein that the present suit was barred by section 24 of the Punjab Pre-- emption Act, 1991 the trial Court vide his order dated 16-11-2000 rejected the suit under Order 7, rule 11, C.P.C. Observing that the same was barred by law. Feeling aggrieved, the petitioner preferred an appeal which came up for hearing before the learned Additional District Judge, Jhelum, who vide his judgment and decree dated 26-9-2001 dismissed the appeal and affirmed the findings of the trial Court.
5. Learned counsel for the petitioner contended that the dismissal of the suit under section 24 of the Punjab Pre-emption Act, 1991, is not a decision on merit and the subsequent suit had been filed within limitation which was maintainable. In this context, he relies on Mst. Sameen v. Afghanullah and 2 others (PLD 1990 Peshawar 110).
6. I have heard the learned counsel for the petitioner and perused the record. Section 24 of the Punjab Pre-emption Act, 1991, provides for the deposit of the sale price of the property. The provisions of this section are reproduced as under:-- "S.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 subsection (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 subsection (1) shall be available for the discharge of costs.
(4) The probable value fixed under subsection (1) shall not affect the final determination of the price payable by the pre-emptor."
7. From the plain reading of the above provisions of section 24, it manifestly clears that in every suit for pre-emption, the Court shall direct 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 and that such period shall not be extended beyond thirty days or the filing of the suit. This proviso is mandatory in nature and the Court is not empowered to extend the time for deposit of one-third of the sale price. Thus, in case, the pre-emptor fails to make compliance of the order of the Court for deposit of one-third of the pre-emption money or, furnishing of the Bank guarantee in the manner as provided in subsection
(1) within the stipulated period fixed by the Court which could not be extended beyond thirty days of the filing of the suit, the suit has to be dismissed.
8. The argument of the learned counsel for the petitioner that in case of dismissal of the suit for non-deposit of pre-emption money, a fresh suit within a period of limitation, would be of no avail as for non---deposit of the pre-emption money, the suit would entail total dismissal which had the effect of barring a fresh suit. In this respect, reliance can be placed on Nardullah Khan v. Haji Zarif Khan and 3 others (1997 CLC 428) and Haji Janat Gul Khan v. Haji Faqir Muhammad Khan and 4 others (PLD 1993 Supreme Court 204).
9 In view of the foregoing discussion, a fresh suit would not be maintainable as the previous suit had been dismissed in violation of the mandatory statutory provisions of section 24 of the Punjab Pre-emption Act, 1991. Learned counsel for the petitioner has not been able to point out any illegality or jurisdictional defect in the impugned judgments and decrees passed by the C Courts below. The case-laws referred to by the learned counsel for the petitioner has been overruled by the Supreme Court so the dictum laid down in the said case-laws does not attract to the facts of the present suit. Consequently, the present civil revision having no force is dismissed in limine.