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P L D 1985 Lahore 39
Before Fazl-i-Mahmood, J
HAKAM AND OTHERS-Petitioners
versus
MUHAMMAD RAMZAN-Respondent
Civil Revisions Nos. 1039/13, 1040/1) and 1044/1) of 1983, heard on 5th July, 1984.
-- S. 22(4)-Application for rejection of plaintiff's suit on ground of non-compliance of Court's order to deposit zar-a panjam on due date by plaintiff-Notice to plaintiff.-Court before deciding such application for rejection of plaint has to take care to satisfy itself whether plaintiff has been served as per its order with notice of such application-No adverse inference can be drawn against plaintiff for failure to file reply, in absence of service to plaintiff-Plaintiff has to be given a fair and proper opportunity to explain his position or to meet allegations levelled in said application.
5. 22(41-Civil Procedure Code (V of 1908), O. XIV, r. 1 & S. 115Application for rejection of plaintiff's suit on ground of non-compliance of Court's order to deposit zar-a panjam on due date by plaintiff Notice to plaintiff-Court not framing any issue nor allowing parties to adduce any evidence but contented itself by observing that there was want of evidence in case to support pleas of plaintiff-Judicial Officer is not supposed to act on conjectural notions or mere speculations or draw adverse presumption against a party without first trying to ascertain facts objectively after inquiry and allowing opportunity to parties to substantiate their pleas-Assumption of trial Court that plaintiff had not been fair and that he had not as such come to Court with clean hands, held, , appeared to be premature and conjectural Refusal of trial Court to extend time under S. 2214), Punjab Pre emption Act, 1913, therefore, could not be sustained and would be vitiate of its judgment and order.
-- S. 22(4)-Civil Procedure Code (V of 1908), S. 115-RevisionApplication for rejection of plaint-Trial Court in absence of plaintiff observing that "though the plaint merits rejection positively, but I feel it proper to adjourn the case for the already fixed date"-Observation of trial Court, held, showed that it was acting with a pre-conceived mind Subsequent proceedings, therefore, were shorn of degree of fairness which required that judicial officer should hear and decide causes with open mind.
-- Ss. 21 & 22(4)-Suit for pre-emption-Deposit of zar-a panjam Extension of time-Discretion of Court-Court is vested with discretionary power to extend time for deposit of zar-a panjam-Such discretion must be exercised judiciously with full application of mind to facts and circumstances of case and after affording parties to lead evidence and substantiate their pleas-Courts are not supposed to act in a post haste manner to dispose of such matter and defeat a right outright in a summary manner-No lapses and lack of application of mind by trial Court should be there on questions having bearing on fate of suits-Trial Court not to reject plaint on mere oral arguments by both sides-.-Suit based on a valuable right for possession through pre-emption attracted requirement to follow legal procedure for its disposal-Failure to follow procedure, held, would result in rather a perfunctory disposal of matter.
Muhammad Yasin and others v. Wali Muhammad and others P L D 1983 Lah. 253 ref.
-- S. 4-Right of pre-emption, nature of-Right of pre-emption not "predatory"-Order passed on basis of this conception of nature of such right that it was predatory, was against Islamic jurisprudence-Such right was as much enforceable as any other right and has a connection with law of inheritance in Islam.-[Islamic jurisprudence].
S9ddigue Khan and 2 others v. Abdul Shakur Khan and another P L D 1984
S C 284 fol.
- Ss. 21 & 22(4)-Civil Procedure Code (V of 1908), S. 115-Suit for pre-emption-Deposit of zar-a panjam-Extension of time-Discretion of Court-Court's exercising such discretion under influence of wrong assumptions or misreading or misapplication of law, held, would not be case of mere erroneous exercise of discretion simpliciter but failure to exercise jurisdiction and direct outcome of Court acting illegally and with material irregularity in arriving at a conclusion based on irrelevant consideration -Such decision was, therefore, open for scrutiny and interference in exercise of revisional jurisdiction and liable to be set aside.
Hadayat Ullah v. Murad Ali Khan P L D 1972 S C 69 distinguished...,
-- S. 115 - Court pressing into service a wholly irrelevant legal provision-Total misdirection was, held, patent on face of judgment of Court-Such order could not be sustained in law.
Hadayat Ullah v. Murad Ali Khan P L D 1972 S C 69 distinguished.
-- S. 22(4)-Application for rejection of plaintiff's suit on ground of non-compliance of Court's order to deposit zar-a panjam on due date by plaintiff-Matter, held, would require evidence, careful scrutiny of treasury challans and examination of prescribed register of Court Such material circumstances ought not to have been ignored and needed to be gone into.
-- Cases cited by parties in support of their submissions-Duty of subordinate courts to give attention to decisions of High Court stated for correction and future guidance.
Subordinate Courts ought to pay due respect and attention to the decisions of High Court which are cited by the parties in support of their submissions. The enunciation of law made by High Court is binding upon subordinate Courts and whenever a judgment of High Court is cited before them, they are under a legal duty to deal with it with due deference, after having carefully read it. If the binding dicta applies to the facts of a case then it has to be followed or if it is distinguishable and does not govern the case, it should be so stated with due respect. Failure to follow such course amounts to refusal to do that which they are required by law to do. It is not enough to mention a cited binding precedent in the judgment and then leave it at that
-- Dispensation of justice-Manner of disposal of cases where rights of citizens were involved, stated for benefit of subordinate Courts.
Dispensation of justice, according to Islamic tenets and concepts, is a solemn and sacred duty cast upon all Muslims by the Almighty Allah when dealing with the rights of the citizens. It is, therefore, imperative that proceedings taken and orders passed by them must visibly show a keenness on their part to discover the truth. How can justice be done or appear to be done if there be want of consciousness of this salutary requirement. All jurisdictions are conferred, for the discovery of truth and only after such an honest effort has been made that it would be possible to render a fair and just decision in accordance with law which governs the rights of the parties. A slipshod or perfunctory disposal of such suits amounts to complete negation of purpose of law and defeating the dictates of dispensation of ,justice in an Islamic State.
Allah Wasaya Malik for Petitioners. Khalid Faroog Qureshi for Respondent. Dates of hearing : 4th and 5th July, 1984.
This judgment will dispose of three connected Civil Revision Nos. 1039/13, 1040/13 and 1044/13 of 1983 as common questions of law and fact arc involved.
2. The brief facts are that the petitioners in each case filed a suit for possession through pre-emption before learned Senior Civil Judge, Jhang. In each case, when the plaint came up before the learned Senior Civil Judge after the office report on 17-4-1982, a similar order was passed to the following effect :-
In compliance of the aforesaid order in each of the three cases, the petitioners on 10-5-1982 approached the learned Senior Civil Judge to enable them to deposit the amount by issuance of a prescribed challan Form No 32-A for cash deposit into the treasury. A photostat of challan of cash payment was brought on record of the trial Court in each case and a perusal of them shows that it has two types of columns one of which is to be filled in by the remitter and the others which are to be filled in by the department or officer of the treasury. In column No. 3, after giving the description of the Court, title of the parties and the nature of the suit, the date of hearing is mentioned as 12-5-1982. However, in the last column of the challan, where it is printed "Order to the Bank" the date 10-5-1982 is filled in with pen. Thereafter, in the column below the above entry, it is again printed "Signature and full designation of the officer ordering the money to be paid in". A perusal of each deposit challan shows that no date by or before which this deposit could be made has been filled in by the Court or its officers. It merely bears the stamp of the learned Civil Judge with his initials dated 10-5-1982.
3. On 12-5-1982, the learned Senior Civil Judge passed the following order :
"Counsel for the plaintiffs present. Defendant in person present. It is states by the learned counsel for the plaintiff that I/5th of the preemption money has been deposited. He is directed to file receipt of the said deposit and also written statement on 23-5- 982."
Then, on 23-5-1982 after recording the presence of the counsel for the parties, the trial Court observed that the counsel for the defendant-respondent prayed for time and that the written statement and Vakalatnama should be presented on 14-6-1982.
4. The defendant in each case moved an application on 24-5-1982 for dismissal of the suit on the averment that the next date in respective cases was fixed for 14-6-1982. It was averred that the ear-a panjum was to be deposited by 11-5-1982 but it had been deposited on 12-5-1982 and moreover proper court-fee had not been affixed. It was further stated that the plaintiffs had not moved any application for extension of time. These applications were put up before the trial Court on 25-5-1982 who directed that notices should go to the plaintiffs on payment of Tulbana for 6-6-1982 and the Tulbana should be filed within two days. The record does not show that required notices were served on the plaintiff in each case. However, when the applications in these cases came up before the learned Senior Civil Judge on 6-6-1982, he passed orders in similar terms as under;
"An application was moved on behalf of the defendant that I/5th of the pre-emption money has been deposited late, therefore, the order has not been complied with, as such the plaint be rejected. Notice was issued for today but none is present and the case is already fixed for f4-6-1982. Though the plaint merits rejection positively, but I feel it proper to adjourn the case for the already fixed date."
5. On 14-6-1982, the main cases were fixed but the record contains nothing to, show that by that time the plaintiffs had been served in respect of the applications referred to above for rejection of plaints. The trial Court without recording a finding of due service of notices of the applications in these cases on the opposite side, acted rather incongruously to observing that reply to the applications had not been filed. He further observed in his order that the learned counsel for the plaintiffs argued the case and placed reliance upon P L U 1980 Lah. 110. The learned Senior Civil Judge then held that;
"The question involved in this suit is that the plaintiffs were directed by this Court's order dated 17-4-1982 to deposit 1/5th of the pre-emption money upto 11-5-1982. The learned counsel for the plaintiffs stated on 11-5-1982 that 1/5th of the pre-emption money has been deposited and receipt was ordered to be filed on 23-5-1932. The learned counsel for the plaintiffs has placed upon record the original receipt dated 12-5-1982. However, the application appears to have been presented to the Civil Judge on 10-5-1982 and bears the signatures of Civil Judge dated 10-5-,982."
The trial Court then noted the argument of the learned counsel for plaintiffs that on 11-5-1982 the plaintiffs went to the bank for the purpose of deposit and that the plaintiffs had four cases of pre-emption in the Court. They had hardly been able to deposit the amount in one case titled Aqil and others v. Muhammad Bakhsh when the bank was closed. They thus failed to deposit the amount on 11-5-1982, therefore, it was deposited on 12-5-1982. The trial Court further observed that there was no evidence available on the record to show that the plaintiffs either approached the Court on 12-5-1982 for necessary orders on the plea that the bank had been closed nor there was any evidence that the plaintiffs submitted any application to the Court on 12-5-1982 for necessary orders for deposit of pre-emption amount. The trial Court thus held that it was only after the passing of these orders that the plaintiffs tried to have benefit of this, date and went to the bank for the purpose of deposit of the 1/5th amounts. "Therefore, I feel that the plaintiffs have not been fair for having this extension from this Court or applying extension from this Court as the amount has been deposited on 12-5-1932 clearly after the period given by this Court. They have as such not come to this Court with clean hands", he further held. In this view of the matter, he held that as orders of the Court had not been complied with, the application was accepted and the plaint was rejected under section t2(4) of the Pre-emption Act.
6. After having reproduced the essential contents of the order of the learned Senior Civil Judge, I must observe at this stage that before deciding to dispose of the applications, he did not care to satisfy himself whether the plaintiffs had been served as per his own orders dated 25-5-1982 with the notices of the applications. In the absence of service, no adverse inference A could have been drawn against the plaintiffs- respondents for failure to file the reply. The plaintiffs were thus not given a fair and proper opportunity to explain their position or to meet the allegations levelled in the application of the defendant for the rejection of the plaint. In paragraph 2 of the Judgment, the observation of the trial Court that the learned counsel for the plaintiffs stated on 11-5-1982 that 1/5th of the pre-emption amount had been deposited is again palpably incorrect and contrary to the record. Such a statement was made by the learned counsel for the plaintiffs not on 11-5-1982 but on 12-5-1982 which is the undisputed date of the deposit of the Zar-e-Panjam in the treasury. The trial court did not frame any issue nor allowed the parties an opportunity to adduce any evidence. It is, therefore, surprising that the learned Senior Civil Judge in such a situation contended himself by h observing that there was want of evidence in the cases to support the pleas of the plaintiffs who are petitioners in these revision petitions. The assumption of the learned trial Court that the plaintiffs had not been fair and that they had not as such come to the Court with clean hands clearly appears to be premature and conjectural. There was little room for speculation which appears to be an off-spring of the erroneous belief that the said statement had been given by the learned counsel for the plaintiffs on 11-5-1.982 that 1/5th of the pre-emption money had been deposited, as has been brought out above. There was also no warrant for the assumption that this statement by the counsel was made before the deposit had in fact been made on 12-5-1982. A judicial officer is not supposed to act on conjectural notions or mere speculations or draw adverse presumption against a litigant party without first trying to ascertain the facts objectively after inquiry and allowing an opportunity to the parties to substantiate their pleas. The refusal of the learned Senior Civil Judge to extend time under subsection (4) of-section 22 of the Pre-emption Act on the above view and the resultant finding that the plaintiffs had not come to the Court with clean hands, therefore, cannot be sustained and would be vitiative of his judgment and order being conjectural and based on wrong assumption as to material facts.
7. There is yet another aspect of the matter which cannot be ignored and that is that on 6-6-1982 the learned trial Court in clear terms predetermined the fate of the application. In the absence of the plaintiffs, the learned Civil Judge thus made up his mind by observing : "Though the plaint merits rejection positively, but I feel it proper to adjourn the case for the already ,fixed data." This shows that the learned Senior Civil Judge was acting with a pre-conceived mind and the subsequent proceedings held on 14-6-1982, were shorn of degree of fairness which requires that judicial officers should bear and decide causes with open minds.
8. It is true that in terms of subsection (4) of section 22 of the Punjab Pre-emption Act, a discretion appears to have been vested in the trial Court to extend time for the deposit of Zar-e-Panjam but then this power must be exercised judiciously with full application of mind to the facts and circumstances of the case and after affording to the parties an opportunity to lead evidence and to substantiate their pleas. In judicial proceedings. the Courts do not act in a post haste manner to dispose of such like matters and defeat a right outright in a summary manner. It has already been brought out in earlier parts of this judgment that there were serious lapses and lack of application of mind by the trial Court on the questions having a bearing on the fate of the suits. In the circumstances of this case, the conclusion is thus irresistible that the trial Court acted over hastily and took the plaintiffs by surprise by taking up and disposing of the applications for rejection of the plaints on mere oral arguments being submitted from both sides. A Division Bench of this Court, dealing with a somewhat similar situation in the case of Muhammad Yasin and others v. Wall Muhammad and others (P L D 1983 Lah. 253), has held that deciding of application for rejection of the plaint on pleadings -and arguments without evidence proper would be in breach of procedural law and as such jurisdiction exercised with material irregularity. It was further held that Order XIV, rule I, C. P. C. enjoins upon the Court a duty to raise an issue where a material proposition of fact or law is affirmed by one party and denied by the other. This requirement has been made as a part of the procedural law in order to apprise the Court of what material proposition it is to try and to indicate the same to the parties and on whom the onus lies and what sort of evidence is to be adduced to prove the issue and when the onus shifts and what type of evidence is required for rebuttal. The Court held----
"9. As is-obvious, in the absence of the necessary issues the evidence has not been led. A tendency has developed to decide certain matters without framing an issue and to render the decision on the pleadings and arguments of the parties. The invitation to adduce evidence can only be dispensed with by a Court when it requires certain facts to be proved by way of affidavits only in keeping with the circumstances of a case."
The case under disposal is a suit based on a valuable right for possession through pre-emption which attracted the requirement to follow the legal procedure for the disposal of suits. The failure to do so has resulted in rather a perfunctory disposal of the matter, as has already been observed.
10. Dealing with the legality of the order of the learned District Judge, it must be observed that his mind was in no small degree influenced by the consideration that right of pre-emption was a predatory right and it is o the basis of this misconception of the nature of the right that he did not thin it fit to exercise his jurisdiction in favour of the plaintiffs. It has been authoritatively held by the Supreme Court in the case of Siddique Khan and others v. Abdul Shakur Khan and another (PLD1984SC299) that the legal notion' that right of pre-emption was a predatory right was incorrect and unsustainable for the reason that it was against Islamic jurisprudence according to which this was a right as much enforceable as any other right and for the further reason that it has a connection with the law of inheritance in Islam. It was further enunciated
"This Court has also adopted the rule that a pre-emptor cannot be disallowed a relief or prayer on account of any such like notion. See Allah Ditta v. Muhammad All P L D 1572 S C 59 and Hadayat Ullah v. Murad Ali Khan P L D 1972 S C 69. Similarly, the approach in this behalf in a recent case Jan Muhammad v. Shukeruddin 1980 C L C 186 is to the same effect. Thus, it would be no more lawful to deprive a plaintiff or appellant of any relief simply because it happens to be a pre-emption matter. The law as it is, has to be applied without any such consideration. Otherwise it would, besides other consequences, also negate the relevant (Article 31) principle of policy contained in the Constitution, which is not permissible."
As already noticed by me, the mind of the learned District Judge was materially influenced by the fact that right of pre-emption being a predatory right, in the circumstances of the case, the appellants did not deserve any relief. The view of the learned District Judge runs contrary to the dictum of the Supreme Court' and, therefore, his judgment based on the incorrect view of law would stand vitiated. I must observe that even in the matter of exercise of discretionary jurisdiction where the Court is influenced by wrong assumptions or misreading of law or misapplication of it, failure to exercise jurisdiction in such a case would be the direct outcome of the Court acting illegally and with material irregularity in arriving at a conclusion based on irrelevant considerations. It would not be a case of mere erroneous exercise of discretion simpliciter. A decision so arrived at is thus thrown open for scrutiny and interference in exercise of the revisional jurisdiction.
11. A total misdirection is also patent on the face of the judgment of the learned District Judge as he held the case of the petitioners unfit for exercise of the Court's discretionary powers under section 149, C. P. C., for any reason beyond the control of the party. The learned District Judge thus pressed into service a wholly irrelevant legal provision as is evident from a plain reading of section 149, C. P. C. which relates to making up of deficiency in court-fee. No question of deficiency in court-fee bad till then arisen in appeal. The matter had to be viewed in the light of section 22(4) of the Pre-emption Act, which is a self-contained provision.
12. It is difficult to appreciate as to what an extent the mind of the trial Court or the learned District Judge was influenced by the assertion of the defendants-respondents that the challan had been issued on 10-5-1982 and the plaintiffs had not acted diligently in the matter by depositing the amount on 12-5-1984. 1 do not wish to express any final view in the matter for it would suffice to observe that both the Courts below failed to carefully examine the treasury challan submitted in each case. It is to be noted that the signatures of the learned Civil Judge bear the date 10-5-1982 but all the same it also bears the initials of an official of the treasury or the Court dated 11-5-1982. It could possibly be the initials of the Nazir who delivers the challan to the parties after making an entry in the relevant register and puts his initials on the challan in token thereof. If that was so then the challan was delivered to the party after following the proper procedure on I 1-5-1982 and it is anybody's guess as to the time when this entry was made in the prescribed register and the Nazir gave the challan to the plaintiffs in each case. This is a matter which would require evidence, careful scrutiny of the challans anal examination of the prescribed register of the Court. However, this material circumstance ought not to have been ignored by the Courts below and needs to be gone into.
13. It needs to be observed for the purpose of correction and future guidance of the Courts below that they ought to pay due respect and attention to the decisions of this Court which are cited by the parties in support of their submissions. There should hardly be any need to keep on reminding them that the enunciation of law made by this Court is binding upon them and whenever a judgment of this Court is cited before them, they are under a legal duty to deal with it with due deference, after having carefully read it. If the binding dicta applies to the tads of a case then it has to be followed or if it is distinguishable and does not govern the case, it should be so stated with due respect. This course has not been followed in the present cases and this failure on their part amounts to refusal to do that which they are required by law to do. It is nut enough to mention a cited binding precedent in the judgment and then leave it at that.
14. The manner of disposal of these cases has persuaded me to emphasize for the benefit of the Courts below that dispensation of justice, according to Islamic tenets and concepts, is a solemn and sacred duty cast upon all Muslims by the Almighty Allah when dealing with the rights of the citizens. It is, therefore, imperative that proceedings taken and orders passed by them must visibly show a keenness on their part to discover the truth. How can justice be done or appear to be done if there be want of N consciousness of this salutary requirement. All jurisdictions are conferred, it must be observed, for the discovery of truth and only after such an honest effort has been made that it would be possible to render a fair and just decision in accordance with law which governs the rights of the parties. A slipshod or perfunctory disposal of civil suits amounts to complete negation of purpose of law and defeating the dictates of dispensation of justice in an Islamic State.
15. On behalf of the respondents, a serious objection was taken to the competence of this Court to interfere in revision with the exercise of discretion by the Courts below and for that purpose reliance has been placed on the decision of the Supreme Court in the case Hadayat Ullah v. Murad Ali Khan (PLD 1972SC69). I must observe after having very respectfully read the judgment in the cited precedent of the Supreme Court that the case under disposal does not fall in that category of cases where the Courts below merely did not exercise their discretion in a proper manner under section 22(4) of the Punjab Pre-emption Act in extending time for depositing pre-emption money. I have already enumerated the illegalities and material irregularities and wrong assumptions of law and fact which led to failure of the Courts below to lawfully and judiciously exercise their jurisdiction though discretionary. The learned District Judge was not even conscious of the nature of the power he was required to exercise as is patent on the face of his impugned order. He refused to exercise discretion in terms of irrelevant section 149, C. P. C.
16.. ;In the circumstances of the case, I would accept these revision petitions, set aside the impugned orders of the learned District Judge dated 25-1-1983 as well as of the learned trial Court dated 14-1-1982. The case is remanded to the learned trial Court to dispose of the applications for rejection of the plaints filed by the respondents in each case in accordance with law. There will, however, be no order as to costs.
M. z. M. Order accordingly,
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