P L D 1952 Peshawar 26 (PLP)

MUHAMMAD SHAFI, J.‑Gulab, son of Arsallah, by a registered deed dated 18th June 1946, transferred 20 kanals of land in favour of Gharib Shah, for an ostensible price of Rs. 8,

000. This money was stated in the note of the Sub-Registrar to have changed hands in his presence. Alan, Shah, claiming to be an owner in the same mahal in which the above property was situated, brought a suit against the vendor and the vendee for possession by pre‑emption of the above land, on the 11th of July 1947. On the 21st of July 1947, the plaintiff was ordered to deposit Rs. 8,000 up to or before the 18th of September 1947. On the 19th of September 1947, Alam Shah made an applica tion to the Senior Sub‑Judge, who was hearing the case that he was prepared to deposit Rs. 5,800, and as regards the rest he might be permitted to put in a security bond. On the back of this application there is an order of the same date, to the effect that this application should come up on the date fixed, which was the following day i.e. the 20th of September, 1947. It appears that during these days the presiding officer, who was then the late Raja Muhammad Nazir Khan, was trans ferred from Mardan to Peshawar. Mr. Eusaf Hayat Khan succeeded him. On the 2nd of October 1947, the latter rejected the plaint, and wrote down in the order that his pre decessor had worked on the 18th of September 1947, and that the plaintiff should have deposited the money up to or before that date. He did not write anything about the application of the plaintiff dated the 19th September 1947. The plaintiff preferred an appeal against this order, which was accepted by Mian Shakirullah Jan, the Additional judge, on the 27th of January 1951. He wrote down in the 'order, "The plaintiff appellant was prepared to deposit Rs. 5,800 and was prepared to give security with respect to the remaining sum of Rs. 2,200 and under these circumstances, in my opinion, the Learned Trial Judge was not justified in rejecting the plaint". It is admitted that the plaintiff has not deposited any amount, much less the amount which he was ordered to deposit by the learned trial Court by or before the 18th of September 1947. Under section 22 of the Punjab Pre‑emption Act, if the plaintiff fails, within the time fixed by the Court to deposit a certain amount, his plaint is liable to be rejected. The Court, however, has got the power to extend this time, but then it should do it for good and sufficient reasons. The law of pre emption is a creation of a statute and is an artificial right which has the result of defeating the legitimate and legal contract. There are, therefore, no equities involved in it. If the plaintiff in such suits wishes the Court to exercise its dis cretion in his favour, he shall have to show some very strong circumstance to entitle him to this indulgence. In the case under consideration the learned trial Court had given the plaintiff almost two months to deposit the pre‑emption‑money. Upto the 18th of September 1947, he did not approach the Court to extend the time. He did it after the period fixed by the Court had expired. The only reason which he gave then for not depositing the amount was that a Hindu gentleman with whom he had deposited the money had gone away some where, and, therefore, he could not take it from him. The plaintiff has made no attempt to prove the above facts. It appears that the plaintiff is taking an undue advantage of the disturbances, which followed the partition of India, and is only making them an excuse for not depositing the amount within the time fixed. The learned lower appellate Judge has in his order accept ing the appeal also not given any reasons as to why did he think that the plaintiff should have been given further time to deposit the money. In fact extending the time under section 22 of the Pre‑emption Act is within the discretion of the learned trial judge. If he did not exercise this discretion, the learned lower appellate Court would require some very strong reasons to differ from him, and interfere with his right of exercising such discretion. After considering the case thoroughly I am of the opinion that the plaintiff was not entitled to get the extension of time. He failed to deposit the amount by the time fixed, and his plaint was, therefore, in equity and law liable to be rejected. The defendant‑vendee cannot be permitted to be harassed for the fault committed by the plaintiff. I consequently consider that the judgment of the learned lower appellate Court is wrong and should be set aside. I, therefore, accept this revision petition, and setting aside the order of the learned lower appellate Court, restore that of the trial Court. The defendant‑vendee shall have his costs throughout. Orders announced. A. H. Revision accepted.