P L D 1963 Azad J & K 15 (PLP)

Muhammad Khurshid Khan for Petitioner. Sardar Said Muhammad Khan for Respondent No.

1. The brief facts giving rise to this revision petition may be stated as under :‑ Mehndi Khan obtained an ex parte decree for possession by pre‑emption of 7 kanals and 10 marlas of land out of 30 kanals and 2 marlas comprised in khasra Nos. 239 and 404 situate in village Talwari, Tehsil Sudhnuti, District Poonch, with costs on the condition that the petitioner (plaintiff) deposit the purchase money after deducting costs of the suit on 31‑5‑61 in the Court of the Sub‑Judge, Pallandri. It so happened that the Sub‑Judge, Pallandri was on leave on 31‑5‑61 with the result that the amount could not be deposited by the decree‑holder, the petitioner. The decree‑holder applied to the Sub‑Judge on 16‑6‑61 stating reasons why the amount could not be deposited on 31‑5‑61 and prayed that the same may be allowed to be deposited them. The Sub‑Judge, after satisfying himself that the decree‑holder was not at fault permitted the amount to be deposited in the Court by his order dated 6‑7‑

61. Muhammad Zaman, judgment‑debtor, has now challenged this order by filing this revision petition. It was argued on his behalf that where the plaintiff pre‑emptor is to have possession conditionally upon his paying the pre‑emption money into the Court within the specified time, but he fails to do so, his suit shall. stand dismissed, and the Court has no jurisdiction to extend time. Reliance was placed in this behalf on 35 All. 582 F. B. In reply it was stated that as the presiding officer of the Court was on leave and there was no responsible official present in the Court to accept the amount it was no fault of the plaintiff if he could not deposit the amount when actually he had carried the amount with him to deposit the same in the Court: The attention of the Court was drawn to the fact that the plaintiff finding difficulty in depositing the purchase money on 31‑5‑61 in the Court of the Sub‑Judge approached the High Court in form of revision petition on that very date for extension of time. But his revision petition was dismissed on technical ground on 14‑6‑61 and then soon after that on 16‑6‑61 he applied to the Sub‑Judge praying for permission to deposit the amount. It was argued that the plaintiff pre‑emptor had taken all reasonable steps which he could take according to his understanding to deposit the purchase money in time and if he failed it was no fault of his and, therefore, he should not be held at fault. P L D 1957 Lah. 93 was quoted in support of this contention. In this case the plaintiff and the Mukhtar had gone to the National Bank of Pakistan on 30‑4‑55, with the required amount in order to get it deposited. They reached the National Bank of Pakistan at 11 a.m., but the Bank officials refused to receive the money on the ground that they had already closed the cash. They then went to their counsel. The Senior Civil Judge was on leave that date; and they with their counsel appeared before the District Judge with the request that the money be allowed to be deposited in the Court as the Bank had already closed. The District Judge asked them to bring a written application. When they returned with the application it was 1 o'clock and the District Judge had already left. Then they went to Khan Muhammad Sidique Ahmed Khan, Civil Judge, Multan and presented the money to him alongwith the application, but he refused to accept the money and made an endorsement on the application that it be put before the Senior Civil Judge. The next day i.e., the 1st May was holiday. On 2nd of May 1955; this application, which contained a prayer for extension of time for making the deposit, was put in before Senior Civil Judge, who had returned from leave. This application was adjourned to the next day, i.e., 3rd of May for `Kaifyet Serishta'. On 3rd of May 1955 an order was made that the money be allowed to be deposited subject to all excep tions. The decree‑holder then deposited the money. Two points had been argued before the learned Senior Civil Judge, the first that there was power in the Court to extend time for making the deposit and the second that there had been compliance with the decree of the Court and that the deposit should be held as having been made within time. The learned Senior Civil Judge had decided on both the points against the decree‑holder. Before the learned Single Judge of the High Court the first point was given up: The point that His Lordship had to decide was whether the amount was deposited in time. His Lordship, after discussing the case observed as under :‑ "There are two reasons on account of which I would hold the deposit in time. They are (i) if a party makes tender of the required amount in time but is prevented from making the deposit by some impediments placed on its way by the Court or an agent of such, Court and the party is .not thenceforward negligent in its effort to make deposits without delay, the party should not be penalised : (ii) in the circumstances of this case the amount can be regarded as having been tendered, to the Court itself on the second of May 1955." On the analogy of this case the learned counsel for the respondents stressed that even in this case the plaintiff pre‑emptor had tendered the amount on 31‑5‑61 but if he was prevented from depositing the same by some impediments placed in his way by the Court it should be regarded that the payment had been made in time and, therefore, the suit stands properly decreed. I think there is force in the arguments advanced by the learned counsel for the respondent. It is in evidence that the purchase money was tendered to the Court on 31‑5‑61 and when the plaintiff found difficulty in depositing the same in that Court he filed a revision petition before the High Court praying for extension of time and when his revision petition was dismissed he immediately returned and deposited the amount with the permission of the Court in the Court of Sub‑Judge. In the circumstances I would treat the amount as having been deposited in time and I, therefore, see no reason to upset the finding of the Sub‑Judge which I uphold and dismiss the revision petition with costs. It may however be mentioned that I do not dispute the proposition of law laid down in 35 All.

582. I have only treated the money tendered by the plaintiff for deposit in the Court of Sub‑Judge on 31‑5‑61 as equivalent to the payment made by him in time. K. B. A. Petition dismissed.