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Regular Second Appeal No. 21 of 1981, decided on 7th April, 1984.

---S.22(4)--Pre-emption--Trial Court converting payment of Zari Punjum, on application of pre-emptor into one for filing security and order to file a security bond for payment of whole of consideration amount mentioned in sale deed--Security bond for Rs.27.000 was filed which was not whole of consideration amount--Vendee objecting that order not complied with and as such fatal to suit--Pre-emptors contending that statement recorded on reverse side of bond that they had secured whole payment was accepted in that context by Court was not open to be called in question so late--Held, that on reverse side of bond statement that they were filing bond to secure whole payment was of no consequence--One had to see what was recorded on the obverse side of the document that could show precise obligation--Order of trial Court not complied with, suit dismissed under S. 22(4), Punjab Pre-emption Act, 1913.

Zafar Pasha Chaudhry with Syed Samar Hussain Shah for Appellants.

M.Z.Khalil for Respondents.

Date of hearing: 4th April, 1984.

This Regular second Appeal arises from a decree dated 12-1-1981 of Mr. Muhammad Afzal Sohail, the then Additional District Judge, Sheikhupura.

2. Before entering into the merits of the case, learned counsel for the appellant raised a preliminary objection to the effect that the order, dated 28-3-1975 of the trial Court was not complied with in regard to the filing of security bond for payment of the entire consideration amount. Earlier, the respondents/ pre-emptors were ordered to make deposit of the Zari Panjum but by their petition dated 27-3-1975, they prayed to convert it into one for filing security. Accepting this petition, the trial Court ordered the filing of security for payment of the whole of the consideration amount (Salam Zari Saman), which as mentioned in the sale-deed was Rs.18,000. According to the said order, the security bond had to be for payment of this amount but instead the respondents filed a bond securing payment only of Rs.2,700. The objection was that the order dated 28-3-1975 was not complied with stricto senso, in that the bond was not even for the 1/5th of the 'Salam Zari Saman' i.e. Rs.18,000. Non-compliance with the order was thus claimed to be fatal to the suit under section 22(4) of the Punjab Pre-emption Act, 1913.

3. Counsel for the respondents, in reply, drew attention to their statement recorded on the reverse side of the bond to the effect that they had secured the payment of Rs.18,000 by this recognizance and contended that since the covenant was accepted in .that context by the Court, it was not open to be called in question so late in the day.

4. It seems that the respondents are caught in their own web. They brought the suit for pre-emption, were ordered to pay Rs.2,700 as one-fifth of Rs.13,500 claimed by them to have been genuinely paid but they did not comply with it and instead moved for filing personal bond. They were able to obtain an order to that effect clearly stating that the bond had to be for the whole of the consideration amount. They filed it only for 88.2,700 which admittedly was not the whole of the consideration amount. The mere fact that on the reverse side of the bond, one of the respondents-pre-emptor stated that they were filing it to secure the payment of Rs.18,000 was of no consequence. The statement was recorded in a haphazard manner presumably by the Reader. Although it reads that Rs.18,000 were only the 'Zar Khammas', yet it was neither here nor there. If this were the Zari Khammas, then the total should have been Rs.90,000 which in fact it was not. One has not to see what was recorded on the reverse side of the bond but it was rather the observe side of the document that could show the precise obligation. It reveals that the respondents were trying to secure payment of Rs.2,700 as Zari Panjum and not Rs.18,000 as Salam Zari Saman. Evidently, the text of the recognizance does not bear out the respondent's plea. They cannot press into service their own statement recorded by the trial Court in a careless manner nor was such a statement required. The document itself was sufficient without being confirmed by further statement. The respondents missed the bond rather irretrievably in failing to comply, with the order of the Court. Its effect inescapably was to attract section 22(4) of the Punjab Pre-emption Act, 1913. There was no option left to avoid its invocation.

5. As a result the appeal is accepted, the judgment/decree of the Courts below is set aside and the respondents/ plaintiffs' plaint is rejected under section 22(4) (ibid).

H.A. Appeal accepted.

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