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Writ Petition No. 128 of 1983, decided on 9th May, 1983.

‑‑ S. 23‑Pre‑emption suit‑Probable value‑Trial Court, held, has discretion to direct deposit of amount of probable value of suit property and whether or not to allow pre‑emptor to furnish security instead of making deposit of cash amount.

‑‑ S. 23‑Provisional Constitution Order (I of 1981), Art. 9‑Pre emption suit‑Deposit of probable value‑Contention that same trial Court in another case allowed pre‑emptor to furnish security but in instant case ordering deposit of cash amount which was discriminatory‑Contention, held, not sustainable and precedent case which may have different facts could not be made a ground to agitate matter before High Court in Constitutional jurisdiction.

‑‑ S. 23‑Pre‑emption suit‑ Pre‑emptor failing to deposit cash amount of suit property‑Trial Judge not yet rejecting plaint for non‑deposit‑Request, held, can, be made to trial Court for allowing pre‑emptor to deposit cash amount in Court and it would be discretionary With trial Court to pass such orders as deemed appropriate in circumstances.

Muhammad Latif for Petitioners.

Date of hearing : 9th May, 1983.

‑This Constitutional Petition is directed against the orders, dated 18th May, 1982 and 20th May, 1982 passed by Civil Judge, Charsadda in Civil Suit No. 274/1 and the Order, dated 14th April, 1983 passed by the Additional District Judge, Charsadda. It arises in the circumstances hereinafter mentioned.

2. Haji Nabi Gul and others, respondents 1 to 5 herein, purchased land measuring 28 kanals, alongwith proportionate share in Shamilat, situated in village Umar Zai, Tehsil Charsadda, District Peshawar, on the basis of a registered sale‑deed. Muzaffar Khan and Samand Khan, petitioners herein, instituted a pre‑emption suit against the vendees ‑in the Court of Civil Judge, Charsadda. The suit was registered in the Register of Suits at No. 274/1. The trial Court on 18th May, 1982 while issuing summons to the defendants directed deposit of Rs. 2,00,000 (Rs. two lacs) as pre‑emption money before the next date of hearing fixed in the case, which was 29th June, 1982. The plaintiffs/pre‑emptors, however, applied to the Court that since they were not having with them the entire amount, they be permitted to furnish security, instead of cash deposit, for the pre‑emption money. The learned Civil Judge, by Order, dated 20th May, 1982, rejected the application filed by the plaintiffs/pre‑emptors on the ground that since the sale was effected through a registered deed, the case was not fit for allowing furnishing of the security bond. This order, was, presumably, made by the Court because the entire sale consideration must have been paid before the Sub‑Registrar at the time of the registra tion of the sale deed. The copy of the sale‑deed has, however, not been placed on this record.

2. Not satisfied with the order dated 20th May, 1982 of the learned Civil Judge, Charsadda, the plaintiffs/pre‑emptors filed a revision petition before the District Court and the learned Additional District Judge, Charsadda, by Order, dated 14th April, 1983 dismissed the revision petition holding that the discretion exercised by the learned Civil Judge was neither capricious nor arbitrary.

3. Having failed to obtain relief from the revisional Court, the plaintiffs/pre‑emptors have filed this constitutional petition calling in question the said orders of the two Courts below as being illegal. The prayer made is that those orders may be set aside and the respondent No. 6 (Civil Judge, Charsadaa) may be directed to accept security bond from the petitioners/plaintiffs in respect of the pre‑emption money.

4. Mr. Muhammad Latif, Advocate appeared on behalf of the petitioners. He argued that according to the provisions contained in subsection (1) of section 23 of the N.‑W. F. P. Pre‑emption Act, 1950 the learned Civil Judge had no discretion to direct the deposit of pre‑emption money more than one‑fifth of the probable value of the land and for that reason the original order for the deposit of Rs. 2,00,000 (Rs. two lacs) made by the learned Civil Judge was illegal bring against the specific provisions of ,law. He further argued that in another case the same Courts allowed another plaintiff/pre‑emptor to furnish security instead of deposit of cash amount and for that reason also the order made by the learned trial Court, being discriminatory, is not sustainable. He also argued that the learned Additional District Judge did not make any order extending the period within which the petitioners could deposit the cash amount directed by the learned trial Court and for that reason too the order made by the revisional Court is not maintainable.

5. We have carefully considered the arguments of the learned counsel for the petitioners. His first argument is misconceived as it is based on misreported section 23 (1) of the Pre‑emption Act, as contained in some of the recently published books. The original text of section 23 (1) of the N.‑W. F. P. Pre‑emption Act, 1950, which has not been amended so far, does not contain the words "does not, in the opinion of the Court, exceed one‑fifth of the probable value", as misreported in some of the new publications. Section 23 (1). in fact, contains the words "does not, in the opinion of the Court, exceed the probable values." The learned trial Court, therefore, did not violate any provision of law, as was argued by the learned counsel for the petitioners, and had the discretion to direct the deposit of the amount mentioned in one of the impugned orders. Similarly, it was discretionary which the learned trial Judge whether or not to allow the petitioners/pre‑emptors to furnish security instead of making deposit of the cash amount. The revisional Court was, therefore, right in not interfering in the discretion exercised by the learned trial Court, which was neither capricious not arbitrary.

6. The second argument of the learned counsel for the petitioner is equally without substance. The case in which the learned trial Judge may have allowed a pre‑emptor to furnish security may be having different facts. The same, therefore, could not be quoted as precedent, nor would such a ground become available to a pre‑emptor to be agitated before the High Court in writ jurisdiction.

7. The third argument of the learned counsel for the petitioner also cannot prevail. We were informed by the learned counsel for the petitioners that the learned trial Judge has not yet rejected the plaint for non‑d‑.posit of pre‑emption money. In such circumstances, a request can be made to the trial Court for allowing the petitioners /pre‑emptor to deposit cash amount in Court and it would be discretionary with the learned trial Court to pass such order Ps it may in the circumstances of the case deem appropriate.

8. To conclude, the two Courts below having not committed any illegality or jurisdictional error, this petition, being without merit, is hereby dismissed in limine.

M. Y. H. Petition dismissed.

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