1982 PLP 1211 (CLC)

The petitioners Muhammad Hussain, filed a suit against respondent No. 3, Siraj Din, hereinafter referred to as the respondent, for possession of certain land through pre‑emption. On 13th July, 1980, the petitioner was directed to deposit Zar‑e‑Panjum (1/5th of the sale price) before 14th October, 1980. On 12th October, 1980, however, he made an application that since his house and crisps had been damaged by floods he may be allowed extension for deposit of Zar‑e‑Panjum. The Civil Judge, who was seized of the suit, directed him to deposit Zar‑e‑Panjum by 23rd October, 1980. This was done by the petitioner. The order of the learned Civil Judge allowing extension of time‑to the petitioner‑was challenged by the respondent by filing a revision petition before the District Judge. The learned District Judge accepted the petition, set aside the order of the learned Civil Judge and rejected the plaint. Feeling aggrieved by the order of the learned revisional Court, the petitioner has filed this writ petition.

2. It was contended by learned counsel for the petitioner that since the order of the learned Civil Judge was not without jurisdiction and it did not suffer from any material irregularity or illegality, as contemplated by section 115 of the Code of Civil Procedure, the learned District Judge had no jurisdiction to interfere with his order. According to learned counsel for the petitioner, the order of the learned District Judge was without lawful authority.

3. In reply, it was urged by learned counsel for the respondent that as the petitioner had ample time to make the deposit in question he did not do so, he was not entitled to the indulgence shown to him by the learned trial Court.

4. In the impugned order it was not stated by learned District Judge that the order of the learned trial Court was without jurisdiction. It was, however, noted by him that it suffered from a grave illegality or material irregularity. In this connection, his observations read as follows:‑

"It has now to be seen whether valid and reasonable cause was shown by the respondent for extension of time to deposit 1/5th of the pre‑emption money. As already stated, the ground taken by the respondent for extension of time for depositing 1/5th of the pre emption money was that his house had fallen down and that his crops had been damaged by rains. No evidence was produced by .the respondent in order to prove that his house had fallen down or that ' his crops had been damaged by rains. I am of the opinion, that the respondent could very well deposit 1/5th of the pre‑emption money within three months when he had deposited the same within 8 days after his house had fallen down and his crops had been damaged. For the reasons stated above, I have arrived at the conclusion that the learned trial Court had committed a grave illegality or material irregularity while passing the impugned order."

5. It seems that the main reason for which the learned District Judge had taken exception to the order challenged before him was that there was no evidence to support the plea raised by the petitioner. It is true that the petitioner had not examined any witness to substantiate his plea but admittedly, he had filed an affidavit in support thereof. That affidavit, which stands unrebutted, was not taken into consideration by the learned District Judge. Thus, the learned District Judge had omitted to consider an important material on the record while examining the validity of the order of the learned Civil Judge.

6. The learned Civil Judge had the jurisdiction to extend time for deposit of Zar‑e‑Panjum and he did not commit any illegality or material irregularity in extending that time in the present case. His order in this behalf, therefore, could not be interfered by the learned District Judge. Similar view was taken in a Division Bench case reported as Hussain Bakhsh, Khairpur v. Additional District Judge, Khairpur and 8 others (P L D 1979 Kar. 475).

7. Resultantly, I hold that the impugned order is without lawful authority. I, therefore, accept this writ petition and quash the order of the learned District Judge. There shall be no order as to costs. M. Y. M. Petition dismissed.