P L D 1962 (W (PLP)

2. The admitted facts giving rise to the two revision petitions are that the petitioners Rahmatullah and Shah Zaman instituted two pre-emption suits, Nos. 65/1 and 66/1, on 22nd January 1958, against Gul Sher and Zaina for possession by pre-emption of the equity of redemption of certain land detailed in the respective plaints.

3. On 25th January 1958, Mr. Shah Abdur Rashid, Sub-Judge, directed the petitioners to deposit the sum of Rs. 1,290 and Rs. 1,800 respectively in Suits Nos. 65/1 and 66/1, before 10th February 1958.

4. On 10th February 1958, the petitioners presented two separate applications, stating therein that on 8th February 1958 the petitioners wanted to deposit the pre-emption money in both the suits, but the Court had risen for the day earlier, and as such, its order could not be obtained for depositing the money, and that 9th February 1958 was Sunday. The learned Sub Judge rejected the plaints under section 23 (4) of the N.-W. F. P. Pre-emption Act, on the ground that the last day for depositing the pre-emption money was 9th February 1958.

5. The petitioners preferred two separate appeals against the rejection of the plaints, but the appeals also proved infructuous having been dismissed by the learned District Judge, by his order dated 4th March 1958. The reason which prevailed with the learned District Judge in affirming the order of rejection of the plaints is given in para. 3 of the judgment which reads thus : -- "After carefully going through the file I am unable to agree with the contention of the learned counsel for the appellant. It is true that 9-2-58 was a Sunday but the plaintiff should have taken care to deposit the amount before 8-2-58 which he failed to do and so the learned trial Judge was perfectly right in rejecting the plaint. I therefore maintain his judgment and decree and dismiss this appeal in limine". The petitioners feeling aggrieved have come up on revision to this Court.

6. Mr. Abdul Samad Khan, counsel for the petitioners, strenuously argued that the learned lower Courts had not applied their mind to section 10 of the N.-W. F. P. General Clauses Act, 1932, Act No. II of 1932, which in most unequivocal language permitted the deposit of the pre-emption money on the next day if the last day of the prescribed period by which the money had to be deposited was a holiday. Reliance was sought on the decision in Umar Hayat v. Azizullah reported in (P L D 1956 Lah. 297).

7. It is important to observe here that section 10 of the N.-W. F. P. General Clauses Act is analogous to section 8 of the Punjab General Clauses Act. Since the decision of the case hinges on the interpretation of section 10 of the N.-W. F. P. General Clauses Act, 1932 it will be convenient to reproduce that section which is to the following effect : -- "Where, by any Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time, if it is done or taken on the next day afterwards on which the Court or office is open."

8. It will be plain from reading of section 10 that if an act is to be done within the prescribed period and if the Court is " closed on the last day of the prescribed period, then the act shall be considered as done-if it is done or taken on the next day afterwards on which the Court or office is open. In the instant cases, admittedly 9th February 1958, which was the last day for the deposit of the pre-emption money, was Sunday, and, therefore, under section 10 of the N.-W. F. P. General Clauses Act the petitioners could deposit the pre-emption money on 10th February 1958, but the learned trial Court wrongly refused to allow them to deposit the pre-emption money.

9. So far I have been discussing the point untrammelled by any authority. There is, however, a direct authority on the point in Umar Hayat v. Azizullah. In the above authority, the pre-emptor was directed to deposit 1/5th of the purchase money, which amounted to Rs. 130 before 17th, October, 1952 ; the date fixed for hearing. On that date, the learned Civil Judge acting under section 22 of the Pre-emption Act rejected the plaint for non-deposit of the pre-emption money. The plaintiff appealed to the District Judge against the order of rejection of the plaint. The grounds taken by the appellant were that he originally intended to deposit the pre-emption money on 16th October 1952, that 16th October 1952 had been declared a holiday and, therefore, he decided to deposit the required money on 17th October, but the case was taken up on that date at 9-15 a.m. and, therefore, he had no opportunity to deposit the money. The appeal before the District Judge was also dismissed. B. Z. Kaikaus, J. (as his Lordship then was) on second appeal at page 299 observed :- "Although the 16th of October 1952 was not a holiday so far as the Civil Courts were concerned, it had been declared a holiday by the Punjab Government and the treasury office was on that day closed. It is clear, therefore, that the plaintiff could not have deposited the amount on the 16th of October. Section 8 of the Punjab General Clauses Act provides that if by any Punjab Act any act or proceeding is allowed to be done in any office within a certain period and the office is closed on the last date of the period, the act can be done on the next opening day of the office. In this view of the matter, the plaintiff had a right to deposit the amount on, the 17th of October 1952, and the plaint could not have been rejected at 9-15 a.m. as the whole of the 17th of October was available to the plaintiff for deposit of money."

10. It follows from the above discussion that the learned trial Court has clearly erred in rejecting the plaints under section 23 (4) of the Pre-emption Act and the orders of dismissal of the appeals by the learned District Judge too cannot be sustained. I accordingly accept both the revision petitions and direct that both the suits should be restored to their original numbers and the plaintiff-pre-emptors permitted to deposit the required pre-emption money by a date to be fixed by the trial Court. Costs of all the Courts to follow the event. K. B. A. Petition accepted.