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Review Appeal No. 24/C of 1986 in Civil Revision No. 1501 of 1982 (reported as 1986 C L C 790), decided on 8th July, 1986.

---0. XLVII, R. 1--Punjab Pre-emption Act (I of 1913), S. 22(1)--Review of judgment--Earlier view of the Court reported as 1986 C L C 790 holding that if security was required to be furnished same should be for whole of the sale price and not for a part thereof reviewed--Such review, however, would not affect ultimate fate of civil revision in which judgment under review was passed.

Muhammad Ashraf v. Mian Habibur Rehman P L D 1978 Lah. 990; Muhammad Ismail Khan v. Gul Faqir 1983 C L C 1727; Zaman Mehdi Khan v . Hayat Khan and another A 1 R 1938 Lah. 452; Mian Akhtar Islam v. Ch. Zulfiqar Ali and another -P L D 1965 (W.P.) Lah. 394; Ch. Zulfiqar Ali v. Mian Akhtar Islam and another PLD 1967 SC 418;' Mst. Resham Jan v. Khan Nawab Khan and others P L D 1970 Azad J & K 66 and Anwar Khan v. Khan Sahib and others 1984 C L C 963 ref.

---S. 22(1)--Cash deposit or furnishing of security--Discretion of Court--Court has discretion to order cash deposit or require pre-emptor to furnish security- -Pre-emptor could be directed either to deposit Zar-e-Panjum not exceeding one-fifth of sale price or he would be required to furnish security not exceeding sale price (probable value of property)--Court could not direct pre-emptor to deposit Zar-e-Panjum and also furnish security.

In section 22(1) of Punjab Pre-emption Act, 1913, there is the word 'or' which occurs immediately before the word 'require'. The said word 'or' clearly indicates that the Court has discretion to order cash deposit or require the plaintiff to furnish security. , If the first course is to be adopted, the plaintiff would be directed to deposit Zar-e-Panjum (a sum not exceeding 1/5th of the sale price). If the second course is to be followed, the plaintiff would be required to furnish security for a sum not exceeding the sale price. The Court cannot direct the plaintiff to deposit Zar-e-Panjum and also furnish security.

It will not be a correct proposition to say that if security is ordered to be furnished, it should be for whole of the sale price. In view of the words 'sum not exceeding such probable value' appearing towards the end of subsection (1) of section 22 of the Punjab Pre-emption Act, the Court can direct the plaintiff to furnish security for whole of the sale price or for any part thereof. Since, in the present case, Court directed the pre-emptor to deposit certain amount as Zar-e-Panjum and also furnish security, order of the Court is in contravention of provisions of subsection (1) of section 22 of the said Act. In other words, such order suffers from an illegality calling for interference by revisional Court.

--S. 22(1)--Security, furnishing of--Requirement--Expression "sum not exceeding such probable value", connotation of--Court is empowered to direct pre-emptor to furnish security for whole of sale price or any part thereof.

Shafqat Mahmood for Petitioner.

Muhammad Hanif Khatana for Respondent.

Date of hearing: 8th July, 1986.

This is a petition (R.A. No. 24-C of 1986) for review of judgment, dated the 22nd October, 1985, passed by me in Civil Revision No. 1501 of 1982, Ghulam Nabi v. Mst. Mukhtar Begum. The said judgment has also been reported as 1986 Law Notes (Lahore) 97, 1986 C L C 790 and K L R 1986 Civil Cases, 42 (Lahore), without my approval.

2. In the said judgment, it was held by me that if security is required to be furnished under subsection (1) of section 22 of the Punjab Pre-emption Act, 1913, it should be for whole of the sale price (probable value of the land or property) and not for a part thereof. This view of mine is sought to be reviewed by means of the instant petition, under Order XLVII of the Code of Civil Procedure.

3. It was submitted by Mr. Shafaqat Mahmood, Advocate, learned counsel for the petitioner (respondent in the civil revision) that the said view is patently erroneous and, therefore, deserves to be reviewed. In this connection, reliance was placed by him on the words "sum not exceeding such probable value" occurring in subsection (1) of section 22-of the Punjab Pre-emption Act and the cases reported as Muhammad Ashraf v. Mian Habibur Rehman P L D 1978 Lah. 990 and Muhammad Ismail Khan v. Gul Faqir 1983 C L C 1727. Mr. Muhammad Hanif Khatana, Advocate, learned counsel for the respondent (petitioner in the civil revision), who appeared before me in connection with the review matter, was also in agreement with learned counsel for the petitioner. (Earlier, when the civil revision was decided, the petitioner therein was represented by Mian Abdul Latif, Advocate, and not by Mr. Muhammad Hanif Khatana, Advocate). Mr. Muzammil Khan, Advocate, who happened to be present at the time of hearing of the review matter, was also good enough to assist me in examining the said matter. He invited my attention to Zaman Mehdi Khan v . Hayat Khan and another A 1 R 1938 Lah. 452, Mian Akhtar Islam v. Ch. Zulfiqar Ali and another P L D 1965 (W . P .) Lah. 394, Ch. Zulfiqar Ali v . Mian Akhtar Islam and another P L D 1967 S C 418, Mst. Resham Jan v. Khan Nawab Khan and others P L D 1970 Azad J tt K 66 and Anwar Khan v. Khan Sahib and others 1984 C L C 963

4. In paragraph 4 of my said judgment, after reproducing provisions of subsection (1) of section 22 of the Punjab Pre-emption Act, I interpreted the said provisions as follows:-

"In these provisions of law, there is the word 'or' which occurs immediately before the word 'require'. The said word 'or' clearly indicates that the Court has discretion to direct deposit of Zar-e-Panjum or require the plaintiff to furnish security. If the first course is to be adopted, the plaintiff would be directed to deposit a sum not exceeding 1/5th of the sale price. If the second course is to be followed, the plaintiff would be required to furnish security for whole of the sale price. The Court cannot direct the plaintiff to deposit Zar-e-Panjum and also furnish security. Further, if security is required to be furnished by plaintiff, it would be for whole of the sale price and not for a part thereof. As indicated above, in the instant case, the learned Senior Civil Judge allowed the petitioner to deposit Rs.66,000 as Q , Zar-e-Panjum and also directed her to furnish security for Rs.66,000 although the sale price was Rs.6,60,000. His order is, therefore, in contravention of the provisions of subsection (1) of section 22 of the said Act. In other words, the order under challenge suffers from an illegality calling for interference by this Court."

It was thus held by me that if the security is to be furnished it has got to be for whole of the sale price and not for any sum less than the sale price.

5. Unfortunately, before the civil revision was decided by me, no authority was cited before me for or against the view taken by me. As indicated above, now, however, several precedent cases have been cited before me in connection with this petition for review.

6. In the case of Muhammad Ashraf, relied upon by learned counsel for the petitioner, the plaintiff was directed to deposit Rs.7,650 as Zar-e-Panjum (1/5th of the sale price). Subsequently, however, at his request, he was allowed to furnish security for the said sum. It was argued before my learned brother Saad Saood Jan, J. that security given was not in accordance with law. This plea was repelled by him in the following words:

"It is to be noticed that section 22(1) of the Pre-emption Act lays down that :n every suit for pre-emption the Court shall at, or at any time before the settlement of issues require the plaintiff to deposit in Court such sum as does not, in the opinion of the Court. exceed one-fifth of the probable value of the land or property or require the plaintiff to give security to the satisfaction of the Court for the payment, if required, of a sum not exceeding such probable value within such time as the Court may fix in such order. According to the learned counsel for the appellants this subsection is in two parts. The first part deals with the cash deposit and the second part deals with the furnishing of security; so far as the first part is concerned an intending pre-emptor cannot be called upon to deposit more than 1/5^th part of the probable value of the property; but the learned counsel argues, if the Court chooses to act under the second part then it is obligatory upon it to direct the pre-emptor to furnish security for the whole of the probable value of the property he is seeking to acquire. It is difficult to agree with the learned counsel. As I read subsection (1) 1 find that it merely fixes the maximum amount for which the security can be asked to be furnished and subject to this limitation the Court has a fairly wide discretion in specifying the amount for the purpose."

In the case of Muhammad Ismail Khan, which was also cited by learned counsel for the petitioner, the trial Court had directed the plaintiff to deposit a part of Zar-e-Panjum and to furnish security for rest of its but this order was not taken exception to by the High Court of Peshawar probably due to the reason that it was not assailed before the High Court.

7. As for 'the cases referred to by Ch. Muzammil Khan, Advocate, the case of Zaman Mehdi Khan has no bearing on the point in issue inasmuch as in the said case it was simply held that if the security bond becomes void, the Court should ask for fresh security and not cash. In the case of Mian Akhtar Islam, it was observed that the Court having allowed the filing of security bond in the first instance has no power left to order cash deposit. This view was, however, not approved of by the Supreme Court in the case of Ch. Zulfiqar Ali in which it was ruled that the Court has power to vary its original order and exercise a fresh option whether to require a security or a cash deposit. While deciding this case, the Supreme Court made certain observations which, in a way, support the view already taken by me, namely, that security should be for whole of the sale price. These observations read as follows:-

"The deposit is a token of good faith and equally the security for the full amount of the purchase price constitutes a guarantee that plaintiff will meet whatever demand is made for money in case his suit succeeds."

In the case of Mst. Resham Jan, the Azad Jammu and Kashmir High Court followed the decision of the Supreme Court in the case of Ch. Zulfiqar Ali but did not say anything regarding the point raised in the present petition. The question before me was not involved in the case of Anwar Khan. It was, however, observed therein that the Court can require the plaintiff either to make cash deposit or furnish security and choice to adopt either of the alternatives lies with Court. It was further held that both alternatives cannot be adopted by the Court in requiring the pre-emptor to make deposit as well as to furnish security. These observations of the Peshawar High Court support the view taken by me, in the judgment under review, that the Court cannot direct the plaintiff to deposit Zar-e-Panjum and also furnish security. This view of mine is, however, not under review.

8. Although my view under review, namely, that security can be demanded for whole of the sale price and not for a part thereof, derives support from the abovequoted observations of the Supreme Court, in the case of Ch. Zulfiqar Ali, yet I would not decline to reconsider my opinion on the strength of the said observations because the point in issue before the Supreme Court in the said case was not the one under examination before me. It seems that by making the said observations the Supreme Court wanted to convey that security can be obtained for whole of the sale price as a token of good faith and it was not intended to be held that the security cannot be demanded for any sum less than the sale price. As observed in the case of Muhammad Ashraf, provisions of subsection (1) of section 22 of the Punjab Pre emption Act are very clear on the point that the plaintiff can be directed to furnish security for a sum not exceeding the sale price. This means that security can be demanded for whole of the sale price or for any sum less than the sale price. In view of these provisions, 1 was in error when it was held by me that if security is to be asked for, it should necessarily be demanded for whole of the sale price and not for a part thereof. The said error, though bona fide, is patent on the face of the record. My apprehension is that if it is not rectified, it may be made use of by unscrupulous elements for ulterior motives. Rectification of the said error is, however, not going to affect ultimate fate of the civil revision in which the judgment under review wasi passed. It is, therefore, a fit case for review.

9. Accordingly, I review 'my judgment and direct that its porition reproduced above (in paragraph 9 of this order) shall be substituted by the following:-

"In these provisions of law, there is the word 'or' which occurs immediately before the word 'require'. The said word 'or' clearly indicates that the Court has discretion to order cash deposit ors require the plaintiff to furnish security. If the first course is to be adopted, the plaintiff would be directed to deposit Zar-e-Panjum (a sum not exceeding 1/5th of the sale price). If the second course is to be followed, the plaintiff would be required to furnish security for a sum not exceeding the sale price. The Court cannot direct the plaintiff to deposit Zar-e-Panjum and also furnish security. I, therefore, agree with learned counsel for the petitioner that learned Senior Civil Judge could not direct the respondent to deposit Zar-e-Panjum and also furnish security. I, however, do not subscribe to the proposition put forth by him that if security is ordered to be furnished, it should be for whole of the sale price. In view of the words 'sum not exceeding such probable value' appearing towards the end of subsection (1) of section 22 of the Punjab Pre-emption Act, the Court can direct the plaintiff to furnish security for whole of the sale price or for any part thereof. Since, in the present case the learned Civil Judge directed the respondent to deposit Rs.66,000 as Zar-e-Panjutr and also furnish security for Rs.66,000 his order is in contravention of provisions of subsection (1) of section 22 of the said Act. In other words, the order under challenge suffers from an illegality calling for interference by this Court."

This petition for review is disposed of accordingly, with no order as to costs.

10. The trial Court may now proceed with the suit in the light of my judgment, as reviewed, and in accordance with law.

A.A. Order accordingly.

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