2008 PLP 218 (YLR)

SH. HAKIM ALI, J.

Falak Sher, respondent No.1 had filed a suit for possession on the basis of his superior right of preemption, before learned Civil Judge, Jhang with regard to land measuring. 15 Kanals 8 Marlas situated in Mouza Kot Khan, Tehsil and District Jhang, which land was transferred through mutation No.1815 dated 19-6-2002, by Amjad All in favour of Tayyab and others, defendants, for a consideration of Rs.1,30,

000. The suit was filed on 2-9-2002 and first order was passed by the learned Duty Judge on 3-9-2002, for the registration of the suit, as the learned Presiding Officer was on leave. On 5-9-2002, learned Civil Judge, after hearing the learned counsel for the plaintiff, passed an order directing the plaintiff Falak Sher to deposit "Zar-e-Soam" of the total sale amount on the next date of hearing i.e. 3-10-2002 but on 3-10-2002, instead of deposit, Falak Sher, plaintiff filed an application under section 148 of the C.P.C, for grant of extension to deposit "Zar-e-Soam" which was allowed by learned Civil Judge, on the even date and the plaintiff was directed to deposit aforementioned amount up till 18-10-2002. On 18-10-2002, evidence regarding deposit of "Zar-e-Soam" was produced before learned trial Court. During the proceedings of the suit, defendant filed an application on 28-4-2003 for dismissal of the suit, as "Zar-e-Soam" was not deposited within a period of 30 days prescribed by section 24 of the Punjab Pre-emption Act 1991. It was further noted in the application that learned Civil Court had no jurisdiction to extend the aforementioned time so, suit might be dismissed. The application was contested and the learned Civil Judge dismissed the suit on 13-6-2003 by accepting that application. Aggrieved from that judgment and decree, an appeal was filed before learned District Judge, Jhang which was accepted on 31-10-2003, and judgment and decree of learned Civil Judge was set aside and the suit was restored to be proceeded with afresh, hence this civil revision.

2. Petitioner's learned counsel submits that section 24 of the Punjab Pre-emption-Act 1991 had in-unequivocal terms prescribed statutory period of 30 days for deposit of "Zar-e-Soam" and under proviso to subsection (1) of section 24 of the Punjab Pre-emption Act 1991, the period could not be extended beyond 30 days by the learned trial Court even. Therefore, the impugned judgment and decree passed by learned Addl. District Judge, is illegal and liable to be set aside. Learned counsel further submits that order of extension of period to deposit "Zar-e-Soam" was passed ex parte, without issuance of notice and grant of an opportunity of hearing to defendants/ petitioners, therefore, this order was not legal in the eye of law. He also contends that it cannot be considered as an act of the Court as granting benefit to plaintiff/ respondent to deposit; the amount after the prescribed period for deposit of "Zar-e-Soam" was obtained by defendant himself. To support his arguments, learned counsel has referred to 2003 CLD 571 M/s Nabbi Chemical Industries (Pvt.) Limited v. Habbi Bank of' Pakistan etc.

3. On the other hand, learned counsel for respondent/plaintiff submits that application for dismissal of suit was filed by the defendant after six months from the date of order of extension, therefore, it should not have been entertained. No person should be prejudiced by the act of Court, is the principle of law and is applicable to this case. As the plaintiff had deposited the amount under the order of the Court, therefore, it being an act of the Court, appeal was rightly accepted by learned Addl. District Judge. Learned counsel has also referred to 2005 CLC 375 (Mst. Said Bibi v. Addl. District Judge Bahawalpur and 5 others). Learned counsel further submits that plea of non-hearing was not raised in the application filed by the petitioners.

4. Hearing the learned counsel for the parties and perusal of record has brought me to conclude 'the case in the following terms: (i) Before proceeding further with this judgment, I would like to mention here that in accordance with provision of section 24 of the Punjab Pre-emption Act 1991, the Court has to direct the deposit of "Zar-e-Soam" within such period as the Court may fix but in proviso to subsection (1) of section 24 of the Act this period has been curtailed up till 30 days only from the filing of the suit. In other words, learned Court has been debarred to fix or allow a period beyond 30 days. It cannot extend the period after 30 days. The consequence has also been provided in aforementioned section which is dismissal of the suit for the non-compliance of order of deposit. In the instant case, suit was filed on 2-9-2002 but the order for deposit of "Zar-e-Soam" was passed on 5-9-2002 after three days of filing of the suit. The period fixed by the learned trial Court for deposit of "Zar-e-Soam" was 30-10-2002, although it was beyond 30 days from the filing of' the suit, yet it was incumbent upon the plaintiff to deposit the amount of "Zar-e-Soam" at least within that period, but on 30-10-2002, the plaintiff instead of deposit of "Zar -e-Soam" had filed an application for grant of extension. Learned trial Court had extended that time in a hasty manner without adverting to the provision of law. The extension was allowed without power because period of 30 days had already expired. -There was no cogent and sound reason even for the extension of time, as noted in the application of the plaintiff. Ground entered into application for extension of time that cotton and rice crops were going to ripe and that the amount would be deposi ted, when in near future these crops would be harvested, could not be made a ground to extend the time. This shows that at the time of filing of the suit plaintiff was not having the minimum sale amount of "Zar-e-Soam" and was not in a position to pay it, what to talk of the payment of whole sale price of the land. If plaintiff was not possessing even "Zar-e-Soam" at, the time of filing of the pre-emption suit how, his bona fides to the filing of the pre-emption suit could be considered in his favour. The pretext as alleged in the application was not such, so as to pass an order of extension in favour of the plaintiff. This order of extension was clearly illegal and the exercise of power was in' contravention to the provision of law of pre-emption. Moreover, the order was passed without grant of opportunity of hearing to defen dants in whom a valuable right had come to vest upon the event of non-deposit of "Zar-e-Soam" within statutory prescribed period of deposit of amount. It is settled law that order affecting adversely right of other parties must be passed after grant of an opportunity of hearing otherwise it would be void and nullity in the eye of law. (iii) The arguments of the learned counsel for the plaintiff that it was an act of Court, therefore, plaintiff was not to be prejudiced due to act of Court could not be made applicable to the instant case because the order of extension-was obtained by plaintiff himself. As noted above, the order being void and without jurisdiction was ineffective upon the rights of defendants who were not heard before passing of the impugned order. The propelling force behind the passing of this order was the request of the plaintiff which was illegal and was got passed by plaintiff himself from the Court. In these circumstances, plaintiff cannot lay foundation of his case upon that illegal order on the pretext of rule "act of Court". He cannot be allowed to gain benefits of his own illegal deeds and acts. (iv) As regard reference to 2005 CLC 375, a judgment delivered by me. , it had contained different facts. In that order of "Zar-e-Soam" was not passed by the Court itself which was not the position of the instant case, while in 2003 CLC 1815 trial Court had not passed a clear and unambiguous order for deposit of "Zar-e-Soam" but had dismissed the suit, which judgment was set aside by learned appellate Court and was not upset by this Court. Therefore, it was not an act of Court but of party itself. If a party has obtained an illegal, unlawful and void order knowingly in such an event, that party cannot construct his arguments of his case on the basis of such an illegal order. So, in the above noted circumstances and discussion of facts, judgments; reported in 2005 CLC 375 (Mst. Said Bibi v. Addl. District and Sessions Judge Bahawalpur and 5 others) and 2003 CLC 1815 (Muhammad Ilyas and 4 others v. Munshi Khan) are not applicable. Accordingly, the instant civil revision is accepted and impugned judgment/order of learned appellate Court is set aside. Consequently, the suit of the plaintiff/respondent No.1 is dismissed with no order as to costs. F.B./T-27/L Petition accepted.