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Regular Second Appeal No. 107 of 1985, decided on 23rd October 1985.
‑‑ Art. 57‑Punjab Pre‑emption Act (I of 1913), S. 22(1)‑Security bond submitted to Court in lieu of Zar‑i‑Panjam, held; fell within Art. .57, Stamp Act, 1899‑Such. security bond written on stamp paper of Rs. 30 was in accordance with requirements of law.
Resham Jan v. Nawab Khan P L D 1970 Azad J & K 66 ; A I R 1933 Lah. 1004 ; A I R 1936 Lah. 45 and Mahmood Akhtar v. Haji Aqil Muhammad and others P L D 1982 B J 1 ref.
‑‑ S. 35 & Art. 57‑ Insufficiency of stamp‑Effect ‑Insufficiency of stamp per se, held, could not be fatal to suit‑On objection being taken to such insufficiency at relevant time, plaintiff could be permitted to make up deficiency under S. 35, Stamp Act.
‑‑‑ S. 22‑Furnishing of security‑Object of‑Object of requiring plaintiff to furnish security was only to guard against vexatious and mala fide suits‑Objection raised, after suit was decreed and pre emptor had deposited pre‑emption amount, held, could not be entertained.
‑‑ S. 30‑Suit for pre‑emption‑Filing of‑Rival pre‑emptor, imp leading each other as defendants in respective suits during pendency of suit‑Such inclusion of rival pre‑emptor, in suits, held, would not render suit, as time‑barred.
‑‑S. 100 & O. XIV, r. 1‑Framing of issues‑Issue not claimed by party‑Effect party not claiming particular issue during long time that suit remained pending, before trial Court, held, could not agitate non‑framing of issue in second appeal.
Mian Pervaiz Akhtar for Appellant.
Sahibzada Mahboob Ali Khan for Respondents.
This regular second appeal has been filed by the vendee to challenge the judgments and decrees of the Courts below whereby the suit of the respondents/plaintiffs has been decreed.
2. Facts necessary for the disposal of this appeal, briefly stated, are that the appellant purchased the suit land in consideration of Rs. 78,000 through registered sale‑deed, dated 15‑2‑1978. Two suits were tiled to pre‑empt this sale, one by the respondents herein and the other by Mubarik Hussain etc., the rival pre‑emptors (not parties in the present appeal). Both the suits were shown to have been filed on the same date i. e. 13‑2‑1979. Respondents claimed superior right of pre‑emption on the ground that they were the real sons of the vendor. Claim of the rival pre‑emptors, on the other hand, however, was that they were the collaterals of the vendor. It appears that the plaintiffs/respondents were, in the first instance, ordered to deposit zar‑e‑panjum . On their application, however, learned trial Court on 6‑3‑1979 permitted them to submit the security bond. Respondents admittedly furnished the security bond on 13‑3‑1979 which was written on a stamp paper of Rs. 30.Both the suits were consolidated and following issues were framed on the basis of the pleadings of the parties:
(1) whether the pre‑emptors in both the suits have got a superior right of pre‑emption qua defendant vendee O. P. P.
(2) Was Rs. 78,000 fixed in good faith or actually paid as the sale price O. P. D.
(3) What was the market value of the suit land at that time of sale O. P. D.
(4) Whether the suit No. 155 is under valued for both purposes of court‑fee and jurisdiction O. P. D.
(5) Whether suit No. 152 is incorrectly valued for the purposes of court‑fee and jurisdiction O. P. D.
(6) Relief.
3. Learned trial Court after recording the evidence of the parties found on issue No. 1 that the plaintiffs/respondents wire the real sons of the vendor and the rival pre‑emptors were his collaterals whereas the vendee was a stran 3er. Respondents were, thus, held to have superior right of pre‑emption qua the vendee‑appellant as also against the rival pre‑emptors. On issues Nos. 2 and 3 it was found that the sale price of Rs. 78,000 was bona fide paid. Issues Nos, 4 and 5 were not pressed. Consequently, decree for possession through pre‑emption to respect of the suit land was passed in favour of the respondents on payment of Rs. 78,000 with the direction to deposit pre‑emption amount in Court till 22‑12‑1984. It was further directed that in case of respondents' failure to comply with the terms of the decree, a second decree be passed in the, same terms in favour of Mubarik Hussain etc., the rival pre‑emptors with the direction to deposit the pre‑emption amount on or before 2‑1‑1985 failing which x both the suits shall be treated as dismissed with costs.
4. Appellant filed an appeal to challenge the decree passed in favour of the respondents but he did not prefer any appeal against Mubarik Hussain etc. rival pre‑emptors. Be that as it may, learned Additional District Judge by his judgment, dated 25‑6‑1985 dismissed the appeal and Upheld the decree of the trial Court observing that the material issues have been framed keeping in view the pleadings of the parties and the superior right of the respondents was admitted.
5. 1 have heard the learned counsel for the appellant as also Sabibzada Mahboob Ali, Advocate who appeared on behalf of the respondents at the limine stage in pursuance of a notice issued in the stay matter. Learned counsel for the appellant mainly addressed arguments on the question that the security bond furnished by the respondents was not properly stamped, and that as an insufficiently stamped bond cannot be acted upon, there has been no compliance with the order of the Court with the result that the plaint of the respondents was liable to be rejected in the terms of section 22(4) of the Punjab Pre‑emption Act. Sub mission of the learned counsel was, that the security bond executed in pursuance of order made under section 22(I) of the Punjab Pre emption Act was not covered by Article 57 of the Stamp Act or any other article of the Stamp Act and as such it was chargeable with ad valorem duty under residuary Article 15 of the Stamp Act. Learned counsel relied on Resham Jan v. Nawab Khan (P L D 1970 Azad J & K 66). The view taken by the Azad Kashmir High Court proceeded on the language of Article 57 as it stood in force in Azad Jammu and Kashmir which is reproduced below : ‑
"Security bond or mortgage deed executed by way of security for the due execution of an office, or to account for money or other property received by virtue thereof or executed by a surety to secure the due performance of a contract .."
It was observed in the cited case that the bond filed under section 22 of the Pre‑emption Act, was not one for due execution of an office or to account for money or property received nor for due performance of a contract. It was specifically held that the bond in question could not be termed as a contract within the meaning of Article 57 of the Stamp Act.
6. Learned counsel appearing for the respondents pointed out that the Stamp Act, 1899 in its applicability to the Province of the then West Pakistan, was amended by Stamp (West Pakistan Amendment) Act 11 of 1964. Amended Article 57 is as follows :‑
"Security bond or mortgage deed executed by way of security for the due execution of an office, or to account for money or other property received by virtue thereof or executed in favour of a Court for the due discharge of a contingent liability or executed by a surety to secure the due performance of a contract."
Amended provision of Article 57 shows that the words "executed in favour of a Court for the due discharge of a contingent liability" have : .' been added in the said article. Keeping in view. the purpose and object of the security .required to be given under section 22(1) of the Punjab Pre‑emption Act, namely to guarantee the payment of costs to the vendee, the security bond in question in my view clearly falls within the amended Article 57. In this view of the matter, security bond written on a Stamp paper of Rs. 30 cannot be said to be insufficiently stamped. Even before the amendment of 1964 referred to above, this Court has been taking the view that the security bond is to be stamped under Article 57 of the Stamp Act. In A I R 1933 Lah. 1004, judgment‑debtors filed an appeal and also made an application under Order XLI, rule 5, C. P. C. Their prayer for stay was declined but the decree‑holders were directed to furnish security of urban immovable property for the refund of the money which might be realised by them, with interest thereon, in the event of the success of the appeal. Decree‑holders furnished the security bond in accordance with the order of the Court. On an objection taken by the judgment‑debtors that the bond was insufficiently stamped, matter was referred to this Court and the view taken was that the bond was properly stamped under Article 57 of the Stamp Act. In A I R 1936 Lah. 45, a person who had applied to be adjudged insolvent was asked by the Court to execute a security bond for Rs. 500. with one surety to secure the insolvent 's attendance in Court till the decision of the application. Security bond was accordingly executed and it was held by a Full Bench of this Court that the bond had been executed to secure the due perform ance of a contract made. by the insolvent to appear, and the surety to produce him in Court, under the provisions of section 21, Provincial Insolvency Act. Article 57 of the Stamp Act was, therefore, held to be applicable to such a bond. It was noted in the case that Article 15 of the Stamp Act was not applicable. In Mahmood Akhtar v. Haji Aqil Muhammad and others (PLD1982BJ 1), plaintiff‑pre‑emptor furnished a security bond under section 22(1) of the Punjab Pre‑emption Act on a stamp paper valuing Rs. 30. Vendee‑defendant took the objection that the document was not sufficiently stamped and as such asked for the rejection of the plaint under section 22(4) of the Punjab Pre‑emption Act. Trial Court instead of rejecting the plaint, allowed the pre‑emptor to make up the deficiency by paying ad valorem duty including 'ten times penalty. The matter came before this Court in revision which was allowed with the observation that Article 57 of the Stamp Act is applicable to security bond. It was further observed that :‑
"The security bond was not being received in evidence and, therefore, the question of calculation of stamp duty and imposition of penalty by the trial Court was uncalled for. In such circumstances, action would have been taken under subsection (2) of section 38. It is then for the Collector to see whether or not the instrument is chargable with duty and penalty."
7. Apart from what has been held above, it is also to be noted that the security bond in question was submitted by the respondents in the trial Court on 10‑3‑1979. Suit remained pending in the trial Court for over five years but during all this period, the appellant took no objection that the security bond in question was insufficiently stamped. No doubt,'" there is an application, dated 18‑10‑1984 available on the record wherein it was alleged that there was some tampering in the security bond and a prayer was made that the plaint be rejected under section 22 of the Pre- emption Act on the ground, inter alia, that the proper duty leviable on the stamp had not been paid. There is nothing on the record to show that this application was properly filed. Even the court‑fee stamp affix on this application has not been cancelled. In any case, the application was filed/placed on record on 18‑10‑1984 on which date, arguments in the main case were concluded. It does not appear that the said application was‑pressed before the trial Court until the judgment was announced three days later i. e. on 21‑10‑1984. Argument raised on behalf of the appellant regarding the insufficiency of the stamp on the security bond before the lower appellate Court and now before this Court does not, therefore merit any serious consideration. Even otherwise, it may be stated, that insufficiency of the stamp per se‑ could not be fatal to the suit. If the objection in that behalf had been taken at the relevant time, the responder could be permitted to make up the deficiency under section 35 of the Stamp Act.
8. There is yet another aspect of the matter which may be noticed The object of requiring the pre‑emptor to furnish security was only to guard against the vexatious and mala fide suits. That s why it is provide that the Court shall require the plaintiffs at or at any time before the settlement of issues to furnish security to the satisfaction of the Court Keeping the object of the provision in view, objection raised after the suit is decreed and the pre‑emptor had deposited the pre‑emption amount cannot be entertained. In the instant case, it is admitted by the appellant in the grounds of his appeal in this Court that the respondents ha complied with the terms of the decree passed in their favour. Thus, the objection as raised could not be looked into after the successful pre‑emptor had deposited the pre‑emption amount.
9. Learned counsel for the appellant also sought to argue that the respondents had not impleaded the rival pre‑emptors as defendants in their suit and as such their suit was time‑barred. Learned counsel, however, could not refer to any law or judicial precedents to support his submission. The record shows that the rival pre‑emptors had been impleaded a defendants in the suit of the respondents and vice versa. This objection, has, therefore, no substance.
10. It was also argued by the learned counsel that necessary issues arising from the pleadings of the parties were not framed by the trial Court. It is not the case of the appellant that he claimed any issue but the same was not framed. The fact that the appellant did not claim an particular issue during more than five years that the suit remained pending before the trial Court precludes him from agitating this point at this stage.
11. As shown above, none of the contentions raised by the learned counsel has any force. Result, therefore, is that this appeal has no merit and the same is dismissed in limine.
A. A. Appeal dismissed.
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