' Mahram Khan, plaintiff-petitioner (herein) had instituted a suit for possession through pre- emption on a sale of land measuring 28 Kanals vide registered sale-deed dated 13-7-1994 situated in Khasras Nos.4171, 4178 and 4181, Mauza Patwali, Tehsil Talagang, District Chakwal, against defendants-respondents (herein), claiming to be the superior rights of pre-emption, being a Sharik Khata and contiguous to the land in dispute. The suit was contested by the respondents who filed their written statement, raising some objections. From the factual controversy appearing on the pleadings of the parties, the trial Court led to frame various issues.
2. After recording and appreciating the evidence of the parties, pro and contra, the trial Court vide its judgment and decree, dated 29-3-1995 dismissed the suit. Feeling aggrieved, the plaintiff- petitioner preferred an appeal which came up for hearing before the learned Additional District Judge, Talagang, who, vide impugned judgment and decree dated 19-9-1996 dismissed the same, affirming the findings of the trial Court.
3. Prior to the instant suit, the plaintiff-petitioner had filed a suit for pre-emption on 31-7-1994 and the Court had directed him to deposit 1/3rd (Zar-e-Soim) of the sale price till 31-8-1994. The petitioner defaulted in deposit of the same and applied to the Court for withdrawal of the suit with permission to file afresh one and his request was acceded to by the learned trial Court and as a result whereof, the instant suit had been filed afresh on 5-9-1994. The respondents in paragraph No,8 of their written statement have taken the objection that earlier suit of the petitioner was dismissed under section 24(2) of the Punjab Preemption Act, so the instant suit is hit by principle of res judicata. An issue No,1 in this regard has been framed by the trial Court which is as under:-- "Whether the plaint is hit by res judicata?"
' The learned trial Court observed that the present suit is not hit by principle of res judicata and further observed that the plaintiff is stopped by his own word and conduct for bringing the present suit which is not maintainable in law. The Appellate Court had also observed that subsequent suit is not bad under the law.
4. I have heard the learned counsel for the parties and gone through the record.
5. The most important issue in the matter which hits the roots of the suit is, whether subsequent present suit is competent under the law when the petitioner in his earlier suit had failed to deposit 1/3rd Zar-e-Soim of the sale consideration within the prescribed time. Section 24 of the Punjab Pre- emption Act, provides as under:- "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 preemptor."
' From the plain reading of the above referred provisions of law, it reveals that period for the deposit of one-third Zar-e-Soim of the sale price of the property shall not be more than 30 days from the date of filing of the suit and there is a mandatory provision in this section that the Court shall not extend the period beyond 30 days. The time for the deposit of 1/3rd Zare-Soim of the pre-emption money having been fixed by the statute itself and the same could not be extended by the Court.
This is the penal provision of non-depositing the 1/3rd price in cash. A reference in this context can be made to the cases of Muhammad Ismail v. Jamil-urRehman and 6 others 1995 M LD 1011 and Mst. Wafa Jan v. Mahram Zad 1995 CLC 2002.
6. Section 13 of the Punjab-Pre-emption Act, contemplates that (1) the right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely:--
(1) `Ta,lb-i-Muwathibat';
(2) `Talb-i-Ishhad'; and
(3) `Talb-e-Khusumat'.
(2) When the fact of sale comes within the knowledge of a preemptor through any source, he shall make Talb-i-Muwathibat.
(3) Where a pre-emptor has made Talb-i-Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge made Talb-iIshhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of preemption: Provided that in areas where owing to lack of post office facilities it is not possible for the pre- emptor to give registered notice, he may make Talb-i-Ishhad in the presence of two truthful witnesses.
(4) Where a pre-emptor has satisfied the requirements of Talb-iMuwathibat under subsection (2) and Talb-i-Ishhad under subsection (3), he shall make Talb-i-Khusumat in the Court of competent jurisdiction to enforce his right of pre-emption."
7. All the above mentioned requirements for filing a suit of preemption are mandatory and it is settled proposition of law that if any one of three is missing, the pre-emptor would not succeed.
8. Section 13 of the Act (ibid) governs the whole scheme of the new pre-emption law which has been brought in consonance with the Injunctions of Islam and Sunnah and according to it, the right of preemption is extinguished if the pre-emptor does not make the three Talbs, referred to above, the last Talb i,e, Talb-i-Khusumat being the enforcement of the right of pre-emption through Court.
The provision of section 13 of the Act shows that enforcement of right of pre-emption can only be made once and the dismissal of suit for non-deposit of Zar-eSoim of the sale price has the affect of barring a fresh suit. The dismissal of suit under section 24 of the Act finally determines the right of the parties subject to the decision of the appeal or revision... In the case in hand, the petitioner adopted the way of withdrawing the suit for filing afresh one due to non-deposit of one-third Zar- e-Soim of the sale consideration and the suit was dismissed as withdrawn for his default. This legal proposition was also discussed in case of Haji Janat Gul Khan v. Haji Faqir Muhammad Khan PLD 1993 SC 204.
9. Both the Courts below have observed that second suit was not barred and competent under the law and gave findings in this respect against defendants-respondents who have not challenged this observation of the trial/Appellate Court by filing cross-objections before the Appellate Court or before this Court.
10. The issue under discussion is an important legal proposition and it would have ever lasting effect on the pre-emptor, who failed to deposit one-third pre-emption money in accordance with the direction of the trial Court. Though, the respondents have not filed cross-objection in this Court but this Court in exercise of its revisional jurisdiction is competent to take suo motu notice of the legal defect. The respondent can support the decree not only on the points decided in his favour but also by attacking points decided against him. In this context, reference can be made to the cases of Salahuddin Butt v. Punjab Service Tribunal PLD 1989 SC 597, Munir Hussain v. Abdul Hameed 1995 M LD 1596, Syed Mustafa Kamal Shah v. Syed Feroze Shah 1992 CLC 355 and Syed Ali Raza v. Aurangzeb Khan 1987 CLC 1829.
11. It is settled proposition of law that a respondent who had not taken cross-objection to urge in opposition of the appeal an objection which if accepted would result in total dismissal of the suit, such as question of jurisdiction or limitation can raise the same at any stage. Reliance in this respect can be made to the case of Khairati and 4 others v. Aleemuddin PLD 1973 SC 295.
12. In view of the above discussion, I have no hesitation in observing that for non-compliance of the order of the trial Court for the deposit of one-third pre-emption money within a period of thirty days under section 24 of the Punjab Pre-emption Act, 1991, would debar the preemptor from filing a subsequent suit for pre-emption on the same subject-matter and on the same cause of action.
This legal aspect of the case had not been adverted to and construed in its true perspective by the two Courts below, therefore, findings of the lower Courts below on Issue No,1 are not sustainable in law and, hence, reversed. I need not comment upon any other point which has been urged by the learned counsel for the petitioner.
13. Resultantly, this revision petition being devoid of merit, is dismissed with no order as to costs.