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Civil Review Application No. 64 of 1979, decided on 24th May, 1980L

----S.23(5)(a)-Withdrawal of pre-emption money-Effect-Provision of S. 23(51(a), held, attracted only when order of deposit made by trial Court and pre-emption amount withdrawn during pendency of suit or appeal.-[Prem Singh v. Lakha Singh A I R 1929 Lah. 387 and Ismail v. Muhammad Aslam P L D 1980 Lah. 104 dissented from].

Sanwal Das v. Jaigo Mal A I R 1924 Lah. 68 ; Mt. Bibi Aisha v. Shadi Khan A I R 1935 Pesh. 143 ; Kisan Dewaloo v. Ganga Bai A I R 1939 Nag. 279 ; Muhammad Ramzan v. Muhammad Khan 1972 S C M R 442 and Abdul Ghafoor v. Iqbal Begum P L D 197S Lah. 524 ref.

Prem Singh v. Lakhu Singh A I R 1929 Lah. 387 and Ismail v. Muhammad Aslam P L D 1980 Lah. 104 dissented from.

Muhammad Shafique Khan for petitioner.

Haji Mohammad Umar Khan for Respondents.

Dates of hearing : 7th and 24th May, 1980.

Haji Bostan of Mardan has, through this Civil Miscellaneous sought the review of the judgment of Mr. Abdul Hakeem Khan, Chief Justice of this Court (as he then was) dated 20-5-79 whereby he on acceptance of the regular second appeal of Sahib Shah Ali decreed his suit for possession of certain land through pre-emption.

The review is sought on the main ground that during the pendency of the appeal, on 31-1-77 respondent No. 1. Sahib Shah Ali applied to the Senior Civil Judge, Mardan for the withdrawal of his pre-emption money which he had deposited during the trial of the suit thereby not disclosing the fact that the second appeal against the judgments and decrees of both the lower Courts is pending decision in the High Court and that as the money was not in deposit, the appeal of the pre-emptor was liable to be dismissed under section 23(5)(a) of the N. W. F. P. Pre-emption Act, 1950 which is a mandatory provision of law.

3. Briefly the facts of the case are that Sahib Shah Ali (plaintiff-pre emptor) pre-empted the sale in favour of the defendant-vendee (petitioner) through Suit No. 165/1 on payment of Rs. 28,600. His suit was dismissed on 28-2-68 and the appeal therefrom before the learned Additional District Judge, also met the same fate. He impugned both the judgments and decrees in the High Court through R. S. A. No. 55 of 1970, which was admitted to full hearing. This appeal was still pending disposal when the petitioner Haji Bostan was impleaded as a respondent vide order of this Court dated 8-2-78. On 20-5-79 the above appeal came up for hearing before Mr. Justice Abdul Hakim Khan, the then Chief Justice of this Court who basing his finding on Mohammed Yousaf v. Sikandar Khan (P L D 1970 Pesh. 161) accepted the appeal and decreed the suit of the plaintiff-pre-emptor on payment of Rs. 28,680 as pre-emption money. But before this judgment, on 31-1-77 Sahib Shah Ali had submitted an application for the withdrawal of his pre-emption money before the Senior Civil Judge, Mardan which was allowed and received by him the same day. Sahib Shah Ali after the acceptance of his appeal in the High Court, moved another application in the trial Court on 24-5-79 stating therein that as his appeal has been accepted by the High Court, he should be allowed to redeposit the pre-emption money which was accordingly granted; hence this review application. The main ground taken in this review application is that as the plaintiff pre-emptor had withdrawn his deposits from the Court of Senior Civil Judge, Mardan during the pendency of his appeal in the High Court without disclosing the fact that his appeal was pending in the High Court, his appeal shall be liable to be dismissed under section 23(5)(a) of the N.-W. F. P. Pre-emption Act.

4. I have heard the learned counsel for the parties and carefully gone through the record and the authorities relied upon by them in support of their respective contentions. The fate of this review application entirely hinges on, the interpretation of section 23(5)(a) of the Pre-emption Act which reads:--

"23(5)(a).-If any sum so deposited is withdrawn by the plaintiff, the suit or appeal shall be dismissed."

The learned counsel for the applicant besides placing reliance on the mandatory provision of section 23(5)(a) of the Act ibid relied on A I R 1929 Lah. 387 in which Dalip Singly: J. had held that where the money ordered to be deposited by the trial Court is withdrawn on dismissal of the suit, the appeal should be dismissed although the Appellate Court itself had not ordered such deposit.

On the other hand, the learned counsel representing the respondent vehemently contended that the withdrawal of the pre-emption money notwith standing, the appeal of the plaintiff-pre-emptor cannot be dismissed and the provision of section 23(5)(a) of the N.-W. F. P. Pre-emption Act cannot be made applicable to the facts of the instant case. He relied on A I R 1924 Lah. 68 A I R 1935 Pesh. 143, A I R 1939 Nag. 279, 1972 S C M R 442 and P L D 1975 Lah. 524.

5. Besides the above authorities, I have come across a latest authority reported in P L D 1980 Lah. 104 which was not referred to by either of the counsel. . It should have been produced by the learned counsel for the applicant. In this Authority, all the, above authorities have been referred to and considered by his Lordship Ilyas, J. In this case his Lordship has observed that cases reported in A I R 1924 Lah. 68 and 1972 S C M R 442 (also relied upon by the learned counsel for the respondent in the case in land) are of no avail, for, in these cases the money was withdrawn by the vendees and not by the pre-emptor. He, therefore, relying on 54 I C 268; A I R 1929 Lah. 387 and P L D 1975 Lah. 524 dismissed the appeal of the appellants (pre-emptors).

6. I am, however, afraid that I do not find my self inclined to follow the Lahore Authority (P L D 1980 Lab. 104) on three-fold ground:----

Firstly, despite the fact that the learned Judge has referred to a case reported in A I R 1935 Pesh. 143 in which case the plaintiff-pre-emptor bad withdrawn the pre-emption money yet he was allowed to prosecute his appeal but the learned Judge without adverting to the dictum laid down in the said authority thereby relying on P L D 1975 Lab. 524 in which case, too, the money was withdrawn by the pre-emptor, dismissed the appeal;

Secondly, this authority is based on 54 I C 268, A I R 1929 Lah. 387 and P L D 1975 Lab. 524 which are Single Bench Authorities whereas A I R 1935 Pesh. 143 is a Division Bench Authority ; and

Thirdly, the provision of section 22(5)(a) of the Punjab Pre-emption Act which is pari materia to section 23(5)(a) of the N.-W. F. P. pre-emption Act, 1950 has not been correctly interpreted, for, this clause clearly lays down that if any sum so deposited is withdrawn by the plaintiff, the suit or appeal shall be dismissed. The word "Soy" signifies the deposit made under subsection (1) or subsection (2) to section 23 ibid and its withdrawal by the plaintiff-pre-emptor entails the dismissal of suit or appeal, as the case may be.

In this case the order of deposit had been made by the trial Court and if the pre-emption amount had been withdrawn during the pendency of the suit only then the provision of subsection (5)(a) to section 23 could have been pressed into service. From the plain reading of the above subsection, the conclusion that can be drawn is that the penal operation of subsec tion 5(a) to section 23 is only attracted when the plaintiff-pre-emptor with draws that amount during the pendency of his suit or appeal, as the case may be which he had deposited under subsection (1) of subsection (2) to section 23 and unless in a case such a situation is available this provision will not be applicable. In this case fortunately the plaintiff-pre-emptor had withdrawn the pre-emption money when his appeal was pending in the High Court and since there was no order by this Court for the deposit of the pre-emption amount, no violation of the order of the High Court has taken place, therefore, the penal provision of subsection 5(a) ibid is not attracted to this case. Furthermore it appears that the attention of the learned Judge in Chambers was not invited to the principles underlying the deposit of the pre-emption money. This deposit is secured only for the discharge of costs (subsection (3) to section 23) and to protect the vendees from frivolous litigations. These aspects have been dealt-with in a beautiful manner in the two division Bench judgments namely (A I R 1924 Lah. 68 and A I R 1935 Pesh. 143). To facilitate the reference, the relevant para of the latter authority is reproduced :---

"As we read Cl. 5(a) of S. 22 there is no legal objection to a plaintiff withdrawing his deposit even without the leave of the Appellate Courts, and yet prosecuting his "appeal. It would not be fair that he should be so debarred for in some Provinces several years may elapse before an appeal is decided and the un-successful pre-emptor therefore, loses interest on his money for all the years during which the money is held in Court. Nor, if he succeeds on appeal has he any legal claim to recover damages from any of the parties. On the other hand, it is open to the Appellate Court, if objection to the withdrawal is taken by the vendee, to refuse to continue the hearing of the appeal until the pre-emption money had been re-deposited, and this was certainly one of the' objects contemplated in Clause (2) of section 22, which gives the Appellate Court powers to order a deposit. This in fact is the course, which should be followed in such cases by an Appel late Court in Order to protect the vendee against frivolous Appeals. Differing from the Divisional Judge, we hold that the appeal should not have been dismissed, but that plaintiff should have been called upon to redeposit the market value before the appeal was finally heard."

7. As a sequal to my above discussion, I see no substance in the review application and dismiss it. As a legal point is involved in the matter, I leave the parties to bear their own costs. The pre-emption money has already been deposited by the pre-emptor on 24-5-79.

S. A. H.

Petition dismissed.

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