IN THE SUPREME COURT OF PAKISTAN  
(Appellate Jurisdiction) 
 
 
 
 
 
PRESENT: 
MR. JUSTICE SARMAD JALAL OSMANY  
MR. JUSTICE DOST MUHAMMAD KHAN  
  
Civil Appeal No.535/2015 
(On appeal from the judgment dated 13.6.2014 passed  
by the Peshawar High Court, Peshawar in Civil Revision No.509-P/2013). 
 
 
Wasal Khan etc 
…Appellants  
VERSUS  
Dr. Niaz Ali Khan 
..Respondent  
 
For the appellants:  
 
 Mr. Ahsan Hameed Lilla, ASC 
 
 
 
 
 
  Syed Rifaqat Hussain Shah, AOR 
 
For the respondent:  
  
 Mr.Mohsin Akhtar Kiyani, ASC 
 
Date of hearing: 
 
 
30.9.2015 
 
 
 
 
  
JUDGMENT  
 
 
 
Dost Muhammad Khan, J-.   With the leave of the Court, through 
this appeal, the appellants have challenged the legality of the judgment dated 
13.6.2014 of the learned Judge of the Peshawar High Court, Peshawar passed in 
Civil Revision No.509-P/2013. 
Arguments of the learned ASC for the appellants as well as respondent 
heard and available record carefully perused.   
 
2. 
The epitome of the controversy is that respondent/plaintiff instituted a 
suit claiming right of preemption over the suit property described in the plaint 
measuring 11 Marla 4 Sarsahi. 
3. 
In the plaint, as it appears, respondent/preemptor inadvertently 
mentioned the sale consideration allegedly paid by the vendee to the vendor as 
Rs.14,00,000/- (fourteen lac) while in fact the sale consideration mentioned in the 
mutation was Rs.14,40,000/-.  
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4. 
The trial Judge without fulfilling its legal obligation in a proper and fair 
manner passed an order under the provision of Section 24 of the NWFP 
Preemption Act, 1987 (now KPK) which reads as follows:- 
 
 
“ORDER#1 
09.06.2012 
 
1. The instant suit file submitted today during the MOD. 
Entrusted to the Court of the learned Civil Judge-III, Lahor 
and plaintiff to attend the proceedings therein while he is 
directed to deposit 1/3rd of the pre-emption amount within 
three days starting from today.  
2. On submission of summon forms the defendants be 
summoned for 20-06-2012. 
     Sd/- 
   (Arbab Sohail Hamid) 
MOD/Civil Judge-II, Lahor” 
 
5. 
The respondent/pre-emptor deposited 1/3rd of the preemption amount 
i.e. of the total amount shown in the plaint as Rs.1400,000/-  (fourteen lac) within 
the time given by the Court.  
6. 
The appellants/vendees with an attempt to get benefit of this bonafide  
error, took a plea of short deposit of 1/3rd of total amount both in the written 
statement as well as in the application submitted in the trial Court and prayed 
for dismissal of the suit because an amount of Rs.13330/-was the deferential 
amount which was less than the 1/3rd of the total amount of the sale 
consideration of Rs.14,40,000/- and because Section 24 of the Act leave no 
discretion with the Court but to dismiss the suit. The learned trial Judge 
dismissed the suit on 14.2.2013 for non-compliance with the Court order with 
regard to the deposit of 1/3rd of the preemption money, however, on appeal filed 
by the respondent/preemptor, the learned Additional District Judge, Lahor, 
District Swabi, for cogent reasons set aside the judgment and allowed the 
preemptor to make good the deficiency by depositing the remaining amount of 
Rs.13330/- and remanded the case to the lower Court for trial.  
CA.535/15 
3
7. 
Aggrieved from this judgment, the appellant filed Revision Petition 
No.509-P/2013 in the Peshawar High Court, Peshawar which was dismissed 
through the impugned judgment.  
8. 
It is unfortunate that the statutory words i.e. sale consideration has been 
given a misnomer describing the same preemption money and it is invariably 
used in the trial court and even in the District Appellate Court which is a wrong 
practice being misleading one and because it is distortion of the statutory phrase 
employed in the provision of section 24 of the Preemption Act “sale 
consideration”. The same is thus, misconceived practice. 
9. 
In the instant the case, due to mistake of fact the draftsman/lawyer 
inadvertently without any malafide intent has mentioned the sale consideration as 
Rs.14,00,000/- (fourteen lac), instead of Rs.14,40,000/-. For the correction of the 
same, the respondent/preemptor has also applied to the trial court for 
amendment of the plaint to rectify the same which fact would show his bonafide 
intention. The respondent/preemptor has not gained any undue benefit because 
he has sincerely and faithfully complied with the initial court order by 
depositing a huge amount of Rs.466670/- thus by not depositing the additional 
amount of Rs.13330/- could not be held to be a deliberate non-compliance with 
the court order. More so, when the trial Judge had not specifically directed him 
to deposit 1/3rd of the sale consideration mentioned in the mutation.  
10. 
Courts are under obligation to facilitate the litigant to a maximum extent 
by passing a clear order, giving direction without any ambiguity to the litigant to 
act in a certain way and in a particular manner and when it comes to calculation 
of an exact amount requires to be deposited thus, it must be clearly laid 
down/shown in the order and the litigant should not be pushed into realm of 
guess work, where in a uncertain situation, he is unable how to proceed and in 
what manner to comply with the order of the court. Therefore, it is the duty of 
the court to tell the plaintiff/preemptor the exact amount he is required to 
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4
deposit i.e. 1/3rd of the sale consideration. The word preemption money as stated 
earlier has been misconstrued in some cases by rustic villagers and when the 
provision of Section 24 of the Preemption Act, 1987 clearly contains the word sale 
consideration, then giving it another description like preemption money is 
patently wrong construction on the Statute. This practice invariably prevalent 
and always pressed into service must be stopped henceforth. It is also the duty of 
the court to clearly tell the plaintiff/preemptor that he is required to deposit 
1/3rd of the sale consideration shown in the sale deed or mutation etc. moreover, 
for the deposit of the said 1/3rd of the sale consideration a reasonable time must 
be given because in the instant case the learned Civil Judge was acting as MOD 
and was not a trial Judge, thus, the respondent/preemptor was required to apply 
to the trial court getting permission to deposit the amount in the court. 
Therefore, giving three days time was absolutely marginal and harsh. The 
discretion vested in the court to give the time has not been exercised in a just and 
fair manner. This is no way of performing a judicial obligation in a judicious 
manner. The order for the deposit of the amount was passed in great haste and 
also in entire vacuum which certainly led the respondent/preemptor to a wrong 
conclusion. Once it is established that initial error was committed by the learned 
Civil Judge then the blame cannot be shifted to the respondent/preemptor, in 
view of the well embedded principle that an act of the court shall prejudice none.  
11. 
From the facts and circumstances, and the subsequent conduct of  
preemptor by quickly moving an application for amendment of the plaint to 
show the correct amount of Rs.14,40,000/- instead of Rs.14,00,000/- (fourteen lac) 
and willing to deposit the balance amount of 1/3rd at any time loudly speaks 
about his bonafide and once a wrong was committed by the trial court causing 
prejudice to the respondent/preemptor on the subject issue then, the 
respondent/preemptor could not be visited with penalty much less the harsh 
one by dismissing his suit on this account.   
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12. 
To avoid such unnecessary litigation on petty matters, it is directed that in 
future the trial court shall calculate the sale consideration mentioned in the 
registered sale deed or mutation or any other document and if these documents 
are not available then through other reliable source it has to calculate the same 
and then to direct the vendee/preemptor to deposit a specific amount within a 
stipulated period, however, the period for deposit must be reasonable. In future, 
the sale consideration given a misnomer as preemption money should not be 
used but the statutory phrase/words 1/3rd of the sale consideration should be 
invariably employed so that the responsibility of the vendee/preemptor is to be 
made more specific and clearer.  
13. 
The new dispensation of justice in matter of preemption requiring the 
preemptor to deposit 1/3rd of the sale consideration in cash in the court and for 
the rest he has to furnish surety bond is with the object to ensure that the suit 
instituted by the preemptor is neither frivolous nor it is intended to exploit the 
vendee through the machinery of the court and the court has to satisfy itself 
about the bonafide of the preemptor that his case being genuine. Therefore, if a 
penalty like dismissal of suit on account of deposit of deficient amount is to be 
imposed then it should be clearly established that it was the preemptor who 
deliberately committed the default and not due to bonafide mistake. Similarly 
the trial court shall perform its legal obligation in a proper and fair manner by 
passing a clear order about the deposit of calculated amount of 1/3rd of the total 
sale consideration mentioned in the sale deed, mutation etc. In any case if the 
court commits a default in this regard, then the preemptor cannot be visited with 
such a penalty like dismissal of suit because the fault in such a case would lay 
with the court for which the preemptor in no manner can be blamed for 
depositing less amount. 
 
14. 
Keeping in view the above facts and circumstances, we do not find any 
error much less a legal infirmity in the impugned judgment of the High Court 
CA.535/15 
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and that of the learned Additional District Judge, therefore, this appeal is found 
devoid of all legal merits and is dismissed. If due to the dismissal of the suit the 
preemptor/respondent has not deposited so far the remaining amount of 
Rs.13330/- as worked out on the basis of total sale consideration of 
Rs.14,40,000/-, then he is given a time of twenty days to deposit the remaining 
amount with the trial court from the date of receiving copy of this judgment to 
make good the deficiency and the trial of the case be held on merits.  
 
 
Appeal dismissed.  
Judge  
 
 
Judge  
Islamabad, the   
30th September, 2015 
Sarfraz /-  
 
 
‘APPROVED FOR REPORTING’ 
