Present: MUHAMMAD MUNIR.KHAN, J
ABDUL AZIZ and 2 others
ABDUL MAJID and another
Civil Revision No. 1997 of 1989, accepted on D.11.1989
Punjab Pre-emption Act, 1913 (I of 1913)-
—S.22 read with Civil Procedure Code, 1908, O.VII, R.ll-Zar-i-Panjum-Withdrawal of—Whether revision can be filed after withdrawal-Question of~ Zar-i-Panjum was deposited within lime fixed by trial court-It was withdrawn after dismissal of suit under Order VII, Rule 11 C.P.C. on basis of judgments of Supreme Court on point of Talabs in Islam—Closer examination of Section 22 of Act reveals that there was no legal bar for petitioners to withdraw Zar-i-Panjum after decision of suit or appeal-Held: If Zar-i-Panjum is withdrawn after disposal of appeal, plaintiff is neither estopped from filing revision nor Us abates-held further: Supreme Court having reviewed its judgments about Talabs, it cannot be said that impugned judgments passed on basis of Talabs, do not suffer from illegality or material irregularity-Petition accepted and case remanded. [Pp. 147&148JA, B&C
Ch. Abdul Rehman, Advocate for Petitioners. Mr. A. W. Bull, Advocate for Respondent.
Date of hearing: 13-11-1989.
On 12-11-1986 Abdul Aziz and two other petitioners filed suit for possession by pre-emption of agricultural land measuring 72 kanals and 19 marlas Khata No. 1 & 2 of village Balloki, Tehsil Chunian, District Kasur on basis of being co-sharer in khata against Abdul Majeed and Imam Din respondents in the Court of Civil Judge Chunian. The suit was resisted. Issues were framed. The case was fixed for evidence of the plaintiff, when the respondents/defendants filed application under Order 7 rule 11 C.P.C. for the rejection of plaint on the ground that requirement of Talabs as in Islam having not been fulfilled by the plaintiffs, the plaint was liable to be rejected. Relying on the judgments of Supreme Court on the point, the trial Court dismissed the suit on 22-4-1989. Feeling aggrieved thereby, the petitioners filed appeal before the learned District Judge, Kasur. Relying on the Judgments of Supreme Court reported as 1988 S.C. 1800, PLD 1988 S.C. 287, 1988 C.L.C. 166 and PLJ 1988 S.C. 270, learned District Judge, confirmed the judgment and decree of the trial Court, hence this revision.
2. Raising preliminary objection, the learned counsel for the respondents submitted that since after the dismissal of the appeal, the plaintiffs/petitioners have withdrawn Zar-e-Panjum therefore, they were/are estopped from filing the present revision and have lost the locus-slandi to prosecute it; that the Legislature’s intention in insisting upon the deposit of Zar-e-Panjum by pre-emptor was to safeguard vendees against frivolous proceedings by prospective pre-emptor, as such, on the withdraw! of Zar-e-Panjum at any stage, the Us abates. o, the revision is not maintainable; that the judgments of the courts below do not suffer from illegality, irregularity or jurisdictional defect and as such, cannot be interfered with, in exercise of the revisional powers of this Court; that no revision lies against an order passed under section 22 of the Punjab Pre-emption Act and that revision is not in continuation of original proceedings. Reliance has been placed on Gulzar Klian v. Mst. Razia Begum and two others (1982 S.C.M.R. 843), Malik Hadayat and two others v. MuradAli KJian (PLD 1972 S.C. 69), Muhammad Saleh & another v. United Grain and Fodder Agency (PLD 1964 S.C. 97), S. Zafar Ahmad v. Abdul KJialiq (PLD 1964 Kar. 149), Sind Employees Social Security & others v. Adamjce Cotton Mills Ltd (PLD 1972 S.C. 32), Karamat Hussain and another v. Muhammad Zaman (PLD 1987 S.C. 139) and AlafDin v. Mst. Parveen Akhtar (PLD 1970 S.C. 75). Conversely, the learned counsel for the petitioners maintained that there was no legal bar for the plaintiffs/petitioners to withdraw l/5th on the dismissal of appeal and he could file and pursue the revision without depositing Zar-e-Panjum. Learned counsel relied upon Ahmad & others v. Abdul Aziz & others Civil Review Petition No. 80 of 1988, (KLR 1989 Revenue Cases 166), to contend that the suit of the petitioners was maintainable although the requirements of Talabs as in Islam were not fulfilled by them.
3. I have considered the submission made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the petitioners. I find that the petitioners/ plaintiffs had deposited Zar-e-Panjum within time fixed by the trial Court. One-fifth of the probable value of the suit land remained deposited till the decision of the appeal. Zar-e-Panjum was withdrawn by the plaintiffs/petitioners after the dismissal of suit and appeal decided on the basis of the judgments of the Supreme Court on the point of Talabs as in Islam. Closer examination of the provisions of Section 22 of the Punjab Pre-emption Act, 1913 reveals that there was no legal bar for them to withdraw l/5th after the decision of the suit by the trial Court or after the decision of the appeal. Furthermore, re-deposit of Zar-e-panjum was/is not a pre-condition to the filing of revision petition against the judgment and decree of he appellate Court. The relevant provisions may be reproduced advantageously:–
Sec. 22 of the Punjab Pre-emption Act, 1913.
(1) “In 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 l/5th 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.
(2) In any appeal the Appellate Court may at any time exercise the powers conferred on a Court under sub-section (1).
(3) every sum deposited or secured under sub-section, (1) or (2) shall be available for the discharge of costs.
(4) If the plaintiff fails within the time fixed by the Court or within such further time as the Court may allow to make the deposit or furnish the security mentioned in sub section (1) or (2), his plaint shall be rejected or his appeal dismissed as the case may be.
(5) (a) If any sum so deposited is withdrawn by the plaintiff, the suit or appeal shall be dismissed. (b) If any security so furnished for any cause becomes void or insufficient, the Court shall order the plaintiff to furnish security, as the case may be, within a time to be fixed by the Court, and if the plaintiff fails to comply with such order, the suit or appeal shall be dismissed.
(6) The estimate of the probable value made for the purpose of sub-section (1) shall not affect any decision subsequently come to as to what is the market value of the land or property”
The omission of word “revision” in clause (a), sub-section (5) of Section 22 of the Punjab Pre-Emption Act, reproduced above, is of great significance. It is thus very much obvious that if Zar-e-Punjum is withdrawn by a plaintiff after the disposal of appeal, he is neither estopped from filing revision against the judgments and decrees of the Courts below, nor can be denuded of his right to pursue his revision petition nor the lis abates. The Supreme Court has, by now, granted review petition against its judgment on the point of Talabs as in Islam on the basis whereof, the trial Court had dismissed the suit and the Appellate Court had dismissed the appeal of the plaintiffs/petitioners. That being the position, it cannot be said that the judgments of the Courts below do not suffer from illegality or material irregularity. The submissions made by the learned counsel are devoid of force and substance. The cases cited by him do not apply to the facts and circumstances of this case.
Pursuant to the above discussion, the revision is accepted. The judgments and decrees of the Courts below are set-aside and the case is sent back to the trial Court for further proceedings in accordance with law. la order to protect the vendees/respondents against frivolous proceeding, the trial Court will pass fresh order under section 22 of the Punjab Pre-emption Act, requiring the plaintiffs/petitioners to deposit in the Court Zar-e-Panjum or requiring them to give security within a reasonable time to be fixed by it. The parties shall bear their own costs.
(MBC) Petition accepted.