2016 SCMR 40

2016 S C M R 40

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Dost Muhammad Khan, JJ

WASAL KHAN and others—Appellants

Versus

Dr. NIAZ ALI KHAN—Respondent

Civil Appeal No. 535 of 2015, decided on 30th September, 2015.

(On appeal from the judgment dated 13-6-2014 passed by the Peshawar High Court, Peshawar in Civil Revision No. 509-P of 2013)

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)—

—-S. 24—Plaintiff to deposit one-third of the sale price (consideration) of the property in court—Practice (in lower courts) of using the phrase ‘pre-emption money’ instead of ‘sale consideration’—Supreme Court observed that such practice was wrong and misleading and was a distortion of the statutory phrase “sale consideration” employed in S. 24 of the Pre-emption Act, 1987, and that such practice must be stopped henceforth.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)—

—-S. 24—Pre-emption suit—Plaint—Inadvertent error in mentioning the actual sale consideration of property—Bona fide mistake—Absence of mala fides—No undue benefit gained by pre-emptor—Pre-emptor in his plaint inadvertently mentioned the sale consideration paid by vendee to vendor as Rs. 14,00,000, instead of the actual figure of Rs.14,40,000 mentioned in the mutation—Trial Court ordered pre-emptor to deposit one-third of the sale consideration of the property in court—Pre-emptor deposited in court 1/3rd of the amount shown in the plaint i.e. one-third of Rs. 14,00,000—Vendee took the objection that pre-emptor made a short deposit in the court, as the amount to be deposited should have been 1/3rd of Rs. 14,40,000 mentioned in the mutation—Trial Court dismissed the pre-emption suit for non-compliance with order of the court to deposit 1/3rd of the actual sale consideration in court—Appellate Court allowed the pre-emptor to make good the deficiency by depositing the remaining amount in court and remanded the case to Trial Court—Validity—Where a court wanted to impose a penalty like dismissal of suit on account of deposit of deficient amount, then it should be clearly established that it was the pre-emptor who deliberately committed the default and it was not a bona fide mistake—In the present case, due to mistake of fact the draftsman/lawyer (for pre-emptor) inadvertently without any mala fide intent mentioned the sale consideration as Rs.14,00,000 , instead of Rs.14,40,000—For the correction of the same, the, pre-emptor promptly applied to the Trial Court for amendment of the plaint, which fact showed his bona fide intention—Pre-emptor had not gained any undue benefit because he had sincerely and faithfully complied with the initial court order by depositing a huge amount of Rs.4,66,670 thus by not depositing the additional amount of Rs.13,330, he could not be held to be in deliberate non-compliance with the court order—Trial Court had not specifically directed pre-emptor to deposit 1/3rd of the sale consideration mentioned in the mutation—Court was duty bound to clearly tell the plaintiff/pre-emptor that he was required to deposit 1/3rd of the sale consideration shown in the sale deed or mutation etc.—Once a wrong was committed by the Trial Court causing prejudice to the pre-emptor, then, the pre-emptor could not be visited with penalty of dismissal of his suit—Appellate Court had rightly set-aside judgment of Trial Court and allowed the pre-emptor to make good the deficiency by depositing the remaining amount in court—Supreme Court directed that if the pre-emptor had not deposited so far the remaining amount of Rs.13,330 as worked out on the basis of 1/3rd of the total sale consideration of Rs.14,40,000, then he should deposit the same in Trial Court within twenty days—Appeal was dismissed accordingly.

(c) Administration of justice—

—-Clear and speaking order/direction by court—Courts were under obligation to facilitate the litigant to a maximum extent by passing a clear order, giving direction without any ambiguity to the litigant to act in a certain way and in a particular manner—Any direction must be clearly laid down/shown in the order and the litigant should not be pushed into realm of guess work, where in an uncertain situation, he was unable to proceed and (did not know) in what manner he had to comply with the order of the court.

(d) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)—

—-S. 24—Plaintiff to deposit one-third of the sale price (consideration) of the property in court—Reasonable time must be given to plaintiff/pre-emptor to deposit such amount in court—In the present case, the Civil Judge was acting as MOD and was not a trial Judge, thus, the pre-emptor was required to apply to the Trial Court getting permission to deposit the amount in the court—Giving three days’ time to the pre-emptor to deposit the amount in court was, therefore, marginal and harsh.

(e) Administration of justice—

—-Error by court—Blame for such error cannot be shifted to a party to the case, in view of the well embedded principle that an act of court shall prejudice no one.

(f) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)—

—-S. 24—Plaintiff to deposit one-third of the sale price (consideration) of the property in court—Directions given by the Supreme Court to avoid unnecessary litigation on matters concerning deposit of one-third of the sale price (consideration) in court—Supreme Court directed that the Trial Court should calculate the sale consideration mentioned in the registered sale deed or mutation or any other document and if such documents were not available then the court should calculate the same through other reliable source, and then direct the vendee/preemptor to deposit a specific amount within a stipulated period; that such period for deposit must be reasonable; that the practice in lower courts of using the phrase ‘pre-emption money’ instead of ‘sale consideration’ should be stopped henceforth, and that the statutory phrase/words i.e. 1/3rd of the sale consideration should be invariably employed so that the responsibility of the vendee/preemptor was more specific and clearer.

Ahsan Hameed Lilla, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants.

Mohsin Akhtar Kiyani, Advocate Supreme Court for Respondent.

Date of hearing: 30th September, 2015.

JUDGMENT

DOST MUHAMMAD KHAN, J.—With the leave of the Court, through this appeal, the appellants have challenged the legality of the judgment dated 13.6.2014 of the learned Judge of the Peshawar High Court, Peshawar passed in Civil Revision No.509-P/2013.

Arguments of the learned ASC for the appellants as well as respondent heard and available record carefully perused.

  1. The epitome of the controversy is that respondent/plaintiff instituted a suit claiming right of preemption over the suit property described in the plaint measuring 11 Marla 4 Sarsahi.
  2. In the plaint, as it appears, respondent/preemptor inadvertently mentioned the sale consideration allegedly paid by the vendee to the vendor as Rs.14,00,000/- (fourteen lac) while in fact the sale consideration mentioned in the mutation was Rs.14,40,000/-.
  3. The trial Judge without fulfilling its legal obligation in a proper and fair manner passed an order under the provision of Section 24 of the NWFP Pre-emption Act, 1987 (now KPK) which reads as follows:-

“ORDER#1

09.06.2012

(1) The instant suit file submitted today during the MOD. Entrusted to the Court of the learned Civil Judge-III, Lahore and plaintiff to attend the proceedings therein while he is directed to deposit 1/3rd of the pre-emption amount within three days starting from today.

(2) On submission of summon forms the defendants be summoned for 20-06-2012.

Sd/-

(Arbab Sohail Hamid)

MOD/Civil Judge-II, Lahor”

  1. The respondent/pre-emptor deposited 1/3rd of the pre-emption amount i.e. of the total amount shown in the plaint as Rs.1400,000/- (fourteen lac) within the time given by the Court.
  2. The appellants/vendees with an attempt to get benefit of this bona fide error, took a plea of short deposit of 1/3rd of total amount both in the written statement as well as in the application submitted in the trial Court and prayed for dismissal of the suit because an amount of Rs.13,330/-was the deferential amount which was less than the 1/3rd of the total amount of the sale consideration of Rs.14,40,000/- and because Section 24 of the Act leaves no discretion with the Court but to dismiss the suit. The learned trial Judge dismissed the suit on 14.2.2013 for non-compliance with the Court order with regard to the deposit of 1/3rd of the pre-emption money, however, on appeal filed by the respondent/preemptor, the learned Additional District Judge, Lahor, District Swabi, for cogent reasons set aside the judgment and allowed the preemptor to make good the deficiency by depositing the remaining amount of Rs.13,330/- and remanded the case to the lower Court for trial.
  3. Aggrieved from this judgment, the appellant filed Revision Petition No.509-P/2013 in the Peshawar High Court, Peshawar which was dismissed through the impugned judgment.
  4. It is unfortunate that the statutory words i.e. sale consideration has been given a misnomer describing the same preemption money and it is invariably used in the trial court and even in the District Appellate Court which is a wrong practice being misleading one and because it is distortion of the statutory phrase employed in the provision of section 24 of the Preemption Act “sale consideration”. The same is thus, misconceived practice.
  5. In the instant case, due to mistake of fact the draftsman/lawyer inadvertently without any mala fide intent has mentioned the sale consideration as Rs.14,00,000/- (fourteen lac), instead of Rs.14,40,000/-For the correction of the same, the, respondent/preemptor has also applied to the trial court for amendment of the plaint to rectify the same which fact would show his bona fide intention. The respondent/ preemptor has not gained any undue benefit because he has sincerely and faithfully complied with the initial court order by depositing a huge amount of Rs.4,66,670/- thus by not depositing the additional amount of Rs.13,330/- could not be held to be a deliberate non-compliance with the court order. Moreso, when the trial Judge had not specifically directed him to deposit 1/3rd of the sale consideration mentioned in the mutation.
  6. Courts are under obligation to facilitate the litigant to a maximum extent by passing a clear order, giving direction without any ambiguity to the litigant to act in a certain way and in a particular manner and when it comes to calculation of an exact amount requires to be deposited thus, it must be clearly laid down/shown in the order and the litigant should not be pushed into realm of guess work, where in a uncertain situation, he is unable how to proceed and in what manner to comply with the order of the court. Therefore, it is the duty of the court to tell the plaintiff/preemptor the exact amount he is required to deposit i.e. 1/3rd of the sale consideration. The word preemption money as stated earlier has been misconstrued in some cases by rustic villagers and when the provision of Section 24 of the Preemption Act, 1987 clearly contains the word sale consideration, then giving it another description like preemption money is patently wrong construction on the Statute. This practice invariably prevalent and always pressed into service must be stopped henceforth. It is also the duty of the court to clearly tell the plaintiff/preemptor that he is required to deposit 1/3rd of the sale consideration shown in the sale deed or mutation etc. moreover, for the deposit of the said 1/3rd of the sale consideration a reasonable time must be given because in the instant case the learned Civil Judge was acting as MOD and was not a trial Judge, thus, the respondent/preemptor was required to apply to the trial court getting permission to deposit the amount in the court. Therefore, giving three days time was absolutely marginal and harsh. The discretion vested in the court to give the time has not been exercised in a just and fair manner. This is no way of performing a judicial obligation in a judicious manner. The order for the deposit of the amount was passed in great haste and also in entire vacuum which certainly led the respondent/preemptor to a wrong conclusion. Once it is established that initial error was committed by the learned Civil Judge then the blame cannot be shifted to the respondent/preemptor, in view of the well embedded principle that an act of the court shall prejudice none.
  7. From the facts and circumstances, and the subsequent conduct of preemptor by quickly moving an application for amendment of the plaint to show the correct amount of Rs.14,40,000/- instead of Rs,14,00,000/- (fourteen lac) and willing to deposit the balance amount of 1/3rd at any time loudly speaks about his bona fide and once a wrong was committed by the trial court causing prejudice to the respondent/ preemptor on the subject issue then, the respondent/preemptor could not be visited with penalty much less the harsh one by dismissing his suit on this account.
  8. To avoid such unnecessary litigation on petty matters, it is directed that in future the trial court shall calculate the sale consideration mentioned in the registered sale deed or mutation or any other document and if these documents are not available then through other reliable source it has to calculate the same and then to direct the vendee/ preemptor to deposit a specific amount within a stipulated period, however, the period for deposit must be reasonable. In future, the sale consideration given a misnomer as preemption money should not be used but the statutory phrase/words 1/3rd of the sale consideration should be invariably employed so that the responsibility of the vendee/preemptor is to be made more specific and clearer.
  9. The new dispensation of justice in matter of preemption requiring the preemptor to deposit 1/3rd of the sale consideration in cash in the court and for the rest he has to furnish surety bond is with the object to ensure that the suit instituted by the preemptor is neither frivolous nor it is intended to exploit the vendee through the machinery of the court and the court has to satisfy itself about the bona fide of the preemptor that his case being genuine. Therefore, if a penalty like dismissal of suit on account of deposit of deficient amount is to be imposed then it should be clearly established that it was the preemptor who deliberately committed the default and not due to bona fide mistake. Similarly the trial court shall perform its legal obligation in a proper and fair manner by passing a clear order about the deposit of calculated amount of 1/3rd of the total sale consideration mentioned in the sale deed, mutation etc. In any case if the court commits a default in this regard, then the preemptor cannot be visited with such a penalty like dismissal of suit because the fault in such a case would lay with the court for which the preemptor in no manner can be blamed for depositing less amount.
  10. Keeping in view the above facts and circumstances, we do not find any error much less a legal infirmity in the impugned judgment of the High Court and that of the learned Additional District Judge, therefore, this appeal is found devoid of all legal merits and is dismissed. If due to the dismissal of the suit the preemptor/respondent has not deposited so far the remaining amount of Rs.13,330/- as worked out on the basis of total sale consideration of Rs.14,40,000/-, then he is given a time of twenty days to deposit the remaining amount with the trial court from the date of receiving copy of this judgment to make good the deficiency and the trial of the case be held on merits.

Appeal dismissed.

MWA/W-3/SC Appeal dismissed.

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