P L D 1990 Peshawar 110 (PLP)

WALI MUHAMMAD KHAN, J.‑‑As Mst. Sameen plaintiff/petitioner herein, filed suit for possession through pre‑emption of land measuring 6 marlas 6 sarsais out of Khasra Nos. 1470 and 1471 situated in village Yar Hussain, Tehsil Lahore, District Swabi, against Afghanullah defendant /respondent No.l herein, on the grounds of co‑sharership, participator in immunities and appendages such as right of way and right to discharge water and also being owner of contiguous property. The plaintiff/petitioner was directed to deposit Rs.13,334 in cash and bank guarantee for the remaining 2/3rd of the sale consideration of Rs.40,000 as mentioned in the impugned Mutation No.16661 attested on 10‑3‑1.988, before 4‑3‑1989. Since the preceding day viz. 3‑3‑1989 happened to be Friday, the plaintiff/petitioner submitted an application on 4‑3‑1989 praying that she may be permitted to deposit the entire sale consideration of Rs.40,000 in cash as the Bank did not provide her bank guarantee and that extension of four days time only may also be granted. The learned trial .fudge allowed the application and the plaintiff/petitioner deposited the entire amount in cash in the Treasury under the orders of the Court on 8‑3‑1989.

2. The defendant/respondent No.l submitted an application on 9‑3‑1989 to the Court requesting for the rejection of the plaint as the compliance of the order of deposit had not been made. The same was resisted by the plaintiff/petitioner and the learned trial Judge (respondent No.3 herein) vide his order dated 18‑3‑1989 rejected the application of the defendant/respondent No.l. A revision petition was filed against this order before the learned Additional District Judge 11, Swabi (respondent No.2 herein) which found favour with him and he, vide his judgment dated 17‑6‑1989 accepted the same, set aside the order of the trial Court and dismissed the suit of the plaintiff/petitioner. Hence the instant writ petition calling in question the judgment of the Revisional Court referred to above.

3. We have heard learned counsel for the parties and have carefully gone through the available record with their assistance.

4. Admittedly on 3‑3‑1989 the Court was closed on account of Friday and, therefore, the plaintiff/petitioner could legally deposit the entire sale consideration on 4‑3‑1989. She could not do so without the aid of the Court because the order passed was for 1 /3rd amount in cash and 2/3rd through bank guarantee which had to be amended and, therefore, the necessity to file the application dated 4‑3‑1989 arose. It appears that the plaintiff/petitioner was ready with the money as the challan appears to have been prepared by the Court on the same day viz. 4‑3‑1989. May be that the amount was not deposited on the same day in the Treasury because drafting and submission of the application, the consideration thereof by the Court and the preparation of the challan may have consumed sufficient time and the Treasury might have been closed by then. Since the Court had already extended time, the plaintiff/petitioner might have genuinely felt that the deposit could be deferred upto 8‑3‑1989. However, statutory period of thirty days was to expire on 6‑3‑1989 and the Court could extend time upto this date 8ven if the contention of the learned counsel is accepted. Obviously the Court committed a mistake in extending the time up to 8‑3‑1989 but this mistake on the part of the Court is going to deprive the plaintiff/petitioner of her valuable rights. As held by the august Supreme Court in case Ghulam Haider and others v. Mst. Raj Bharri and others reported as PLD 1988 SC 20 that no party shall be made to suffer on account of the act of the Court, the extension of time allowed by the Court upto 8‑3‑1989 cannot result in depriving the plaintiff/petitioner of her vested valuable rights. Additionally the mutation in dispute was attested on 10‑3‑1988 and even if the plaint had been rejected on 4‑3‑1989 for non‑deposit of the pre‑emption money, the plaintiff/petitioner had still time to file a fresh suit on the same cause of action in view of the dictum of this Court in case Sharifullah v. Mumtaz and another reported as PLD 1980 Pesh. 87 and could secure further thirty days for the deposit of pre‑emption money in cash. Consequently the rejection of plaint could not confer any right on the defendant/respondent No.l.

5. There is another legal aspect of the case as well. The order dated 4‑3‑1989 extending time ‑for deposit upto 8‑3‑1989 was never challenged through Appeal/Revision or Review by the defendant/respondent No.l with the result that the same attained finality and in the presence of the same, the Revisional Court (respondent No.2 herein) had no jurisdiction to bypass the said order and dismiss the suit for the alleged non‑compliance of the original order of deposit. The application dated 9‑3‑1989 can, by no stretch of imagination, be construed as an application for review of the order dated 4‑3‑1989 and the learned trial Judge rightly dismissed the same, holding it to be a miscellaneous application informing the Court that the deposit had not been made in accordance with the order of the Court whereas, in fact, due compliance had been made in view the order of the Court dated 4‑3‑1989. The Revisional Court committed material irregularity in ignoring the aforesaid proposition of law and illegally dismissed the suit and as such its impugned order cannot be sustained.

6. In view of what has been stated above we are convinced that the judgment of the trial Judge (respondent No.3) in not rejecting the plaint on the application of the defendant/respondent No.l dated 9‑3‑1989 was perfectly in accordance with the facts of the case and the relevant law on the subject and the learned Additional District Judge II Swabi (respondent No.2 herein) has legally erred in setting aside the same. This Writ Petition is accordingly accepted and the order of the Revisional Court (Additional District Judge II, Swabi) dated 17‑6‑1989 is declared as without lawful authority and of no legal affect, with the result that the order of the trial Court (Additional Civil Judge 11, Swabi) dated 18‑3‑1989 stands restored. The file is sent back to the trial Court (Additional Civil Judge 11), Swabi for proceedings with the same according to law. AA./1011/P Petition accepted. P