2003 PLP 235 (CLC)

This single judgment shall dispose of Civil Revisions Nos.49 and 50 of 2002 as similar questions of law and facts are involved therein.

2. Facts relevant for the disposal of these civil revisions, are that Mst. Mumlikat Begum plaintiff‑pre‑emptor instituted suits (Civil Suits Nos.91/1 and 93/1 of 2001) on 5‑5‑2001 in the' Court of Senior Civil Judge, Charsadda, against Malik Nasrullah vendee‑defendant, for possession through pre‑emption of suit‑lands situated in Shah Fazal Abad Charsadda. The learned trial Judge vide order dated 5‑5‑2001 directed the Are‑emptor to deposit 1/3rd of the pre‑emption amounts in Court within 30 days failing which the suits were to stand dismissed. A perusal of the record would reveal that the pre‑emption money could not be deposited within the prescribed time as the Presiding Officer was statedly busy in election work. Resultantly, the suits were dismissed vide order dated 6‑9‑2001 for non‑compliance of the order 'of the Court by not depositing the pre‑emption amounts. An appeal was preferred which was accepted vide the impugned judgments dated 15‑1‑2002 and the plaintiff appellant was allowed to deposit pre‑emption amounts within three day, Malik Nasrullah Khan, petitioner feeling aggrieved, has filed instant Civil Revisions which are before me for consideration.

3. Mr. Sardar Hussain, Advocate, learned counsel for the petitioner, asserted with vehemence that the impugned judgment was recorded in a mechanical way without application of judicious mind an: total disregard to the mandatory provisions of section 24 of the N.‑W.F.P. Pre‑emption Act, 1987 as amended in 1992 and the Appellate court had no power to extend the time. Reliance was placed on Wahid Bakhsh v. Abdul Qayum and another 1997 MLD 2945 (Peshawar), Mst. Mah Jehan v. Abdul Maroof 2000 MLD 814 (Peshawar), Muhammad Iqbal v. Jehanzeb Khan 1999 MLD 2475 (Peshawar) and Jehanzeb Kha Muhammad Iqbal 2000 SCMR 365.

4. Mr. Mazullah Barkandi, Advocate, learned counsel for the respondent, on the other hand, supported the impugned judgment and contended that having regard to the facts and circumstances learned Appellate .Judge, was quite justified to accept the appeal directed against the judgment and decree of the trial Judge and allow the respondent to deposit the pre‑emption money within three days. He reiterated that the delay in depositing the pre‑emption money had occurred due to the act of the Court and the respondent was not to be penalized for such delay. He relied on Khalid Mehmood v. Abdur Rashid and another 2000 YLR 1249 (Lahore) and Muhammad Sultan v. Muhammad Ali Raja 2002 SCMR 1108.

5. In order to appreciate the arguments of learned counsel for the parties I consider it appropriate to reproduce below the operative part of section 24 of the N.‑W.F.P. Pre‑emption Act, 1987 which reads:‑‑ "

24. Plaintiff to deposit sale price of the property.‑‑‑ (1) ............. (2) Where the plaintiff fails to deposit one‑third of the sale price or the probable value of the property within the period fixed by the Court, his suit shall be dismissed. (3) ............................................................................................ (4) : (5) .........................................................................................

6. A perusal of the record would reveal that on the date of the institution of the suits i.e. 5‑5‑2001 the pre‑emptor was directed to deposit 1/3rd of the pre‑emption amounts in Court within 30 days but the deposit could not be made within the prescribed period. The pre‑emptor moved an application on 4‑6‑2001 for the extension of time which was placed on file and notice was issued to the opposite‑party for the date fixed. On the same day i.e. 4‑6‑2001 pre‑emptor ' moved another application for grant of permission to deposit pre‑emption amounts. On this application the trial Judge wrote:‑‑ Ultimately the suits were dismissed for non ‑compliance of Court order.

7. After hearing the arguments of learned counsel for the parties in the light of the material on record, I find that the learned Appellate Court p had no power to extend the time and as such the impugned judgment has materially prejudiced the interest of the defendant‑petitioner. Undoubtedly, the pre‑emption right, being a feeble right pre‑empt or seeking to exercise such right was bound to perform and fulfil its requirements meticulously and any failure in that behalf would deprive him of success in getting a pre‑emption decree. If an authority is needed on the point reference can be made to Wahid Bakhsh v. Abdul Qayum and another 1997 MLD 2945 (Peshawar).

8. Before amendment of section 24 by Act X of 1992, the Court had the power to extend the period not beyond 30 days for deposit of money but under the amended section 24, there is no statutory limit within which the deposit has to be made and matter has been left to the discretion of the Court to fix time within which the deposit has to be made and its failure must result in the dismissal of the suit. By amending section 24 of the Act, only the words "thirty days" had been omitted and rest of the provision had been kept intact, which means that once a time is fixed the pre‑emptor shall be bound to comply with, within the time so fixed, and neither the pre‑emptor would be allowed to apply for further extension nor the Court will be competent to allow the same.

9. It has been vehemently contended by learned counsel for the respondent that the application for extension in time followed by another application for grant of permission to deposit the pre‑emption money, were submitted on the same day i.e. 4‑6‑2001 and as such and thus the applications having been submitted well within the time fixed by the Court through order, dated 5‑5‑2001, the respondent cannot be blamed of having made delay, if any, regarding deposit of the pre‑emption amounts. The learned counsel reiterated that the default, if any, was due to the act of the Court and it is not denied that a suiter cannot be punished for an act of the Court. The submission is devoid of force. The learned counsel has remained unable to persuade me to hold that due to the act of the Court the respondent committed default and he is absolved of the legal consequences. It is true that one of the first and highest duties of all Courts is to take care that the act of the Courts does not cause injury to any of the suiters and when the expression "the act of the Court", is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case, but the fact cannot be lost sight of that in this case, as indicated above, the trial Court has not been found to have acted illegally by not disposing of the application moved on 4‑6‑2001. So far as the case‑law cited on behalf of the respondent is concerned the same is distinguishable and does not promote the case of the respondent. In Khalid Mehmood v. Abdur Rashid and another 2000 YLR 1249 (Lahore), no order was passed by trial Court fixing time for deposit of 1/3rd amount on account of which the order was found not justified whereas in the present case the respondent‑pre emptor duly represented by a counsel was clearly directed to deposit 1/3rd of the pre‑emption amount in both the suits within 30 days but the order was not complied with.

10. In the wake of above discussion I find that when once a time is fixed the plaintiff‑pre‑emptor shall be‑ bound to comply with, within the time so fixed and neither the plaintiff would be allowed to apply for further extension nor the Court would be competent to allow the same. Consequently, the civil revisions are accepted, impugned judgment dated 15‑1‑2002 is set aside and the judgment of learned trial Judge dated 6‑9‑2001 is restored. The suits of the plaintiff‑respondent shall stand dismissed. The parties are left to bear their own costs. S.A.K./641/P Revisions accepted.