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Civil Appeal No. 28‑P of 1977, decided on 17th June, 1980.

N. W. F. P. Pre‑emption Act (XIV of 1950)‑

----S. 23 and Civil Procedure Code (V of 1908), S. 115‑Revision‑New ground‑High Court in revision allowing petition of respondent on a new ground of pre‑emptor', failure to deposit money late by one day although such ground not taken before lower Courts‑Held: Remedy in revision available only to correct jurisdictional errors and High Court could not allow a revision petition on a plea of fact not advanced before lower Courts.

Niaz Muhammad Khan v. Mian Fazal Ragib P L D 1974 S C 134 ref.

Inayat Ilahee, Advocate and M. Qasim Imam, Advocate‑on‑Record for Petitioner.

Aman Khan, Advocate and Nur Ahmad Khan, Advocate‑on‑Record for Respondent.

Date of hearing: 17th.June, 1980.

DORAB PATEL-J

. -- Muhammad Alam sold some land in village Akhund Deri, Tehsil Charsadda, Peshawar District, to the respondent by a registered sale deed dated 9‑5‑1975 for Rs. 50,000. Therefore, the appellant filed a suit to pre‑empt this sale in the Court of the Civil Judge, Charsadda. The Civil Judge, Charsadda, ordered notice to the respondent and directed the appellant by his order dated 3‑6‑1975 to deposit the sum of Rs. 50,000, before the 18th of June, 1975. The appellant filed an application on the 14th of June that he should be permitted to deposit Rs. 32,000 in cash and to furnish a security bond for the balance of Rs. 18,000. This application was allowed by the Civil Judge on the same day. The appellant prepared his security bond, but he could not comply with the Court's order for depositing it before the 18th of June, 1975, because it is common ground between the learned counsel that the bond had to be verified by the Civil Judge, who unexpectedly took leave on the 17th of June, 1975. Therefore, the appellant, who had complied with all the other formalities for the execution of the bond presented it before the Civil Judge on 18th June, and also deposited the sum of Rs. 32,000, the same day.

2. As the cash amount of Rs. 32,000, and the security bond of Rs. 18,000, were presented on 18th June, and not before 18th June, as directed by the Civil Judge in his order of 3rd June, 1975, the respondent filed an application that the suit of the appellant should be dismissed under section 23 of the North‑West Frontier Province Pre‑emption Act, 1950, (hereinafter called the said Act), because the appellant was late by one day, in furnishing the security bond for Rs. 18,000. It is significant that no objection was taken to the fact that the appellant had deposited Rs. 32,000, in cash on 18th June, and not before 18th June, 1975, as directed by the trial Court on 3rd June, 1975. Therefore, the appellant limited his reply to the respondent's objection to an explanation of his inability to present the security bond on 17th June, 1975; and that explanation was that the Civil Judge had unexpectedly taken leave. As the delay was not on account of any fault or negligence on the part of the appellant, the respondent's application for dismissing the suit was frivolous, yet it was allowed by the Civil Judge on 30th July, 1975.

3. The order of the Civil Judge was patently illegal and was challenged in appeal in the District Court, Peshawar; and it is not surprising that the learned Additional District Judge, who heard the appeal, allowed it on the short ground that the appellant could not be penalised, because the Civil Judge had unexpectedly taken leave. Therefore, by his order dated 31‑1‑1976, he restored the appellant's suit, and directed the parties to appear before the learned Civil Judge for further proceedings in the case.

4. The respondent challenged this order in a revision in the Peshawar High Court and as the order passed by the trial Court was utterly indefen sible, the respondent pressed the revision not on the ground taken by her in the trial Court, but on a new ground. This was that the petitioner had to deposit the sum of Rs. 32,000, before 18th June, 1975, under the trial Court's order of 3rd June, 1975, but as he had deposited the said amount on 18th June, he had brought himself within the mischief of subsection (4) of section 23 of the said Act. The appellant contested this application and although the revision was pressed on a ground of fact which had not been taken in either of the lower Courts, by his judgment dated 24th February, 1975, a learned Judge allowed the revision. Therefore, the appellant filed a petition for leave in this Court and leave was granted, inter alia, to examine the question whether the High Court was justified in allowing the revision on a plea of fact which was advanced for the first time in the High Court.

5. The remedy of a revision is available only to correct jurisdictional errors. That is elementary, yet a Judge of a High Court set aside the first appellate Court's order on the ground that the appellant had flouted the trial Court's order of 3rd June, 1975, by not depositing Rs. 32,000, before the 18th of June. Now, it was never the case of the respondent in the lower Courts that the appellant had committed breach of his obliga tion to deposit Rs. 32,000, before the 18th June, therefore, there was n error much less any jurisdictional error in the first appellate Court's order and we are astonished that a High Court could set aside this order in its limited revisional jurisdiction.

6. Mr. Aman Khan's only defence was that the appellant's failure to comply with the direction to deposit Rs. 32,000, before the 18th June, 1975, could be proved from the record without examining the evidence, therefore, the High Court was justified in interfering with the order of the Additional District Judge. We are unable to accept this argument because in the first place, the High Court was hearing a revision and not an appeal. Secondly, even if it is assumed for the sake of argument that the learned Judge assumed through some misconception that he was hearing an appeal and not a revision, the appellant had an explanation of his inability to deposit the sum of Rs. 32,000, before 18th June, 1975. Therefore, even if the case had come up to the High Court by way of an appeal, it would have been the duty of the learned Judge not to decide the new plea of fact advanced by the respondent without giving the appellant an opportunity to produce evidence. But, as the learned Judge allowed the respondent's revision, without giving any opportunity to the appellant to produce evidence, he committed a gross illegality and we are unable to understand how the revision was allowed in the circumstances discussed.

7. As the High Court erred in allowing a revision on a plea of fact which had not been advanced in the lower Courts, the only question is whether the respondent should be permitted an opportunity to press this objection. The respondent's objection turns on a technicality, therefore, as she had failed to raise this objection at the proper stage, we would not allow any remand of the case for this purpose, otherwise, it would be a premium on frivolous litigation and dilatory tactics.

8. Mr. Aman Khan's further submission was that the impugned order was in accordance with the law declared by this Court in Niaz Muhammad Khan v. Mian Fazal Raqib PLD1974SC134. We have, therefore, examined this case and the facts in it have no relevance in the instant case, because the pre‑emptor had wilfully failed to comply with the order for furnishing the security bond for a part of the pre‑emption money within the prescribed period. But, in the instant case, the delay in furnishing bond was for circumstance p totally beyond the appellant's control, the cause being that the Civil Judge had suddenly taken leave, therefore, the case cited has no relevance whatever to the instant case.

In the result, we allow the appeal, set aside the order of the High Court and restore the order of the first appellate Court. Therefore, directed by the first appellate Court, the suit of the respondent will now be heard and decided according to law by the learned Civil Judge. The respondent shall pay the costs of the appeal.

Appeal allowed.

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