Find a Lawyer

Civil Revisions Nos. 161 to 163 of 1984, decided on 27th November, 1985.

‑‑ S. 115‑Revisional jurisdiction, exercise of‑plea neither raised before trial Court nor before Appellate Court, held, could not be agitated in revisional jurisdiction of High Court especially when such plea related to question of fact requiring investigation and recording of evidence.

‑‑ S. 115‑Revisional jurisdiction, exercise of‑Non‑deposit of pre emption money within specified time ‑Amount of pre‑emption money modified by Appellate Court to amount already deposited in Court Executable decree in field being that passed by Appellate Court, and payment of amount already deposited in Court before passing of decree by trial Court, plea of non‑deposit of amount and dismissal of suit in consequence thereof, held. was misconceived requiring no interference in revisional jurisdiction.

Abdul Khaliq Khan for Petitioner.

S. Mahmood Hussain Shah for Respondents.

Date of hearing : 13th October, 1985.

These three Civil Revision Petitions bearing Nos. 161 of 1984, 162 of 1934 and 163 of 1984 all' by Nizam Din defendant‑vendee are directed against the orders passed by the learned Additional District Judge, Hari pur dated 18‑7‑1983, whereby he rejected petitioner's appeals against the order of Civil Judge 1st Class, Haripur, dated 8‑9‑1981, rejecting his applications for the dismissal of plaintiff‑respondents' suit for pre‑emption on plaintiffs' failure to deposit the remaining pre‑emption money within the period fixed by the Court while decreeing his suits. As common questions of law and facts are raised in all the three petitions, these are therefore, disposed of by this single judgment.

2. Three transactions of sale trade in favour of Nizam Din petitioner herein and his brother namely Waris Din were pre‑empted by Dr. Faqir Elahi and Manzoor Elahi sons of Karam Elahi respondents herein by instituting 3 suits in the Court of Civil Judge, Haripur on 20‑7‑1973. One Musadr Khan was impleaded as defendant during the pendency of the suits as the land in all the three suits was allegedly transferred by way of sale in his favour by the first vendees through a registered sale‑deed, dated 12‑2‑1974. After the trial of the suits the learned Civil Judge vide his judgment and decree, dated 30‑7‑1978 decreed Suit No. 59/1 in respect of land sold, vide Mutation No. 609 on payment of Rs. 16,301 as its sale consideration. Of this amount the plaintiff has already deposited Rs. 10,000 hence they were directed to deposit the remaining amount of Rs. 6,301 within 15 days of the passing of the decree failing which their suit was ordered to stand dismissed. Plaintiffs' Suit No. 601 regarding the land sold, vide Mutation No. 615 was also decreed on the same date on payment of Rs. 1,993.26 of which the pre‑emptor had deposited Rs. 1,300 and the rest of it was ordered to be deposited within the aforementioned stipulated period. Similarly Suit No. 135/1 was decreed in their favour on payment of Rs. 617.09 the pre‑emption amount of which Rs. 300 was already in deposit while tile rest was ordered to be deposited within 15 days as stated above.

3. It may, however, be pointed out that the defend ant‑vendee challen ged the jurisdiction of the trial Court in appeals filed in the Court of Additional District Judge, Hiripur. On receipt of notices in the appeals the plaintiff‑pre‑emptors preferred cross‑objections to the decrees challeng ing the finding of the learned trial Court given on the issue pertaining to the market value. The learned Additional District Judge while rejecting the appeals filed be the defendant‑vendees at the same time accepted the cross objections of the plaintiff/decree‑holders. The finding of the trial Court on the issue referred to above was set aside and the plaintiffs were held entitled to tile decrees of the land subject‑matter of the suits on payment .,f Rs. 10,010, Rs. 1,300 and Rs. 300 respectively by his judgment, dated 20‑1‑1981.

4. Before the decision of the aforementioned appeals the decree holders made applications before the trial Judge on 2nd of September, 1978 seeking permission of the Court for depositing the remaining amount as directed in the decrees passed in their favour. With the permission of the Court the remaining amounts in all the three suits were deposited in Court on 10‑9‑1978. In the meantime on having come to know of the plaintiff decree‑holders failure to matte deposit of the remaining amount within 15 days of the passing of the decrees the defendent‑vendees made applications in the trial Court for the dismissal of the plaintiffs suits under section 23 of N.‑W. F. P. Pre‑emption Act, 1950. The learned trial Judge, however, dismissed these applications on the ground that the applications for the deposit of the remaining amount were made on 2nd of September, 1978, the first day on which the Courts were opened alter summer vacation hence it was sufficient compliance of the orders of the Court for making the deposit within time. The time spent between 2nd of September i.e. the day on which the applications were made upto 10th of September the date on which the amounts were deposited to Court was held to be due to the fault of the Court official, for which the decree‑holders were not to be penalised. Dissatisfied with the orders of the trial Judge the defendant‑vendees challenged these in appeals filed before Additional District Judge Haripur but with no success.

5. It was contended by the learned counsel for the petitioner that in fact the decree‑holders have not filed the applications in the trial Court on 2‑9‑1978 but actually these were presented on 9‑8‑1978 as is evident from the perusal of the original applications. According to the learned counsel if these applications had been filed in Court on 2‑9‑1978 there must have been some endorsement by the learned Judge of the date or the same should have been entered in the relevant register which is not the case. On the perusal of the applications made by the petitioner before the trial Judge neither such an allegation has been made nor this point has been agitated before the learned Additional District Judge. Even in the grounds of revision filed in this Court this ground has not been specifically taken. This being the position petitioner would not be allowed a to agitate a point at this stage not raised earlier, specially when the point raised relates to a question of fact requiring investigation and recording of evidence. This was precisely the arguments addressed by the learned counsel for the respondents. The findings of the Courts below, therefore, that the remaining pre‑emption amount was deposited within the period fixed in the decrees are well founded and unexceptional in revisional jurisdiction.

6. Even otherwise the contention of the learned counsel that the plaintiff‑respondents' suit should have been dismissed for non‑deposit of the pre‑emption money is misconceived. As stated above the finding of the learned trial Court in determining the market value of the suit land was set aside on the acceptance of plaintiff‑respondents cross‑objections and the decrees passed in their favour were modified in terms stated above i.e. on payment of the amounts already deposited in Court before the passing of the decree by the trial Court. In the circumstances the only executable decrees in the field were those passed by the learned Additional District Judge in appeal regarding the pre‑emption amount.

In this view of the matter the orders of the Courts below rejecting petitioner's applications need on interference. All the three revision petitions, are, therefore, dismissed with costs.

A. A. Revision petitions dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.