P L D 1986 Lahore 131 (PLP)

Vide deed of sale dated 9‑7‑1973, registered on 12‑7‑1973, Mst. Ghulam Fatima sold suit property, a house situated in Multan City to Captain Muhammad Ashraf Zafar for Rs. 50,

000. Multan Central Cooperative Bank Limited, owner of contiguous property brought a civil suit to pre empt the sale. Suit was instituted on 16‑1‑1974. Ou 17‑1‑1974, Court directed issuance of summons to the defendant as also passed an order under section 22 of the Punjab Pre‑emption Act that 1/fth of the pre emption money amounting to Rs. 10,000 should be deposited before the next date fixed i. e. 23‑2‑1974. Zar‑i‑Panjum, however, was not deposited till the date fixed. Instead, on the request of, the plaintiff, Court further extended time for a week. Necessary amount was deposited by the plaintiff on 25‑2‑1974. By this time defendant had not been served. However, when the defendant was served and appeared, he submitted written statement and took up number of pleas in his defence. No objection was raised to the late deposit of Zar‑i‑Panjum or action of the Court in extending the time. Necessary issues were framed on 23‑10‑1974 and evidence was also led by the parties. On 25‑3‑1980, defendant, in a miscellaneous application, prayed for rejection of the plaint on the ground that Zar‑i‑Panjum was not deposited in time as per direction of the Court and also objected to the extension of time on grounds i. e. that defendant was not given any notice and that sufficient grounds did not exist for exercise of such a power. Learned Judge of the trial Court placed reliance on Riaz Ahmad Khan v. Faiz Muhammad Khan (PLD1978BJ85), and rejected plaint under section 22(4) of the Punjab Pre‑emption Act vide his order dated 11‑10‑1980. Learned District Judge Multan, in appeal filed by the plaintiff, set aside rejection order and remanded the suit for its decision afresh in accordance with law. This appeal is at the instance of vendee -defendant. Ch. M. A. Latif Amritsari, Advocate appeared for the appellant while Mirza Manzoor Ahmad Advocate assisted by Mr. Asif Sated Khan Khosa, Advocate represented. the plaintiff‑Bank. They have been heard. Record has also been examined. Facts are not in dispute. It was contended for the appellant that Court erred in extending time for deposit though it was for a week only, without properly evaluating the cause given to seek extension. Counsel also urged that the defendant was entitled to a prior notice and hearing before extension in time could have been granted. It was pleaded that extension without notice and hearing the other affected party could not be held binding and the latter was well within his rights to invite the attention of the Court to this patent illegality at any time. Learned counsel urged that the Court rightly recalled its order which in the opinion of learned counsel was both unjust and illegal. Mirza Manzoor Ahmad, Advocate defended the impugned order of learned District Judge, Multan. 'It was forcefully argued that sale subjected to pre‑emption suit was effected through a registered sale deed, dated 12‑7‑1973. Suit was instituted on 16‑1‑1974. Both, the time fixed in the first instance and that extended by the Court fell within the period of limitation prescribed for a pre‑emption suit. Limitation for suit expired on 12‑7‑1974 and even if the Court had not extended time and rejected the plaint for non‑deposit, plaintiff could have brought another suit land successfully assert his claim. It was also urged that the defendant did, not raise any objection to the late deposit of Zar‑i‑Panjum on score of absence of notice,' non‑hearing or insufficiency of cause for extension. Instead, defendant went to trial and delayed his objection till after expiry of six years and that too without making any formal amendment in the written statement. It was contended that defendant having acquiesced, shall be deemed to have waived the objection if there was any. Learned counsel urged that section 22 of the Punjab Pre‑emption Act provided to protect the vendees from vexatious and speculative suits and to provide a guarantee of the bona fides of the pre‑emptors. Counsel argued that the matter was in the discretion of the Court and that having been exercised properly, learned successor Judge could not have reviewed the previous action taken and non‑suited the plaintiff at such a belated stage of proceedings. It was argued that discretion allowed to the Court to extend time for sufficient cause was absolute and unqualified but then hastened to add that this discretion like all other powers of the Court could be exercised judicially and not arbitrarily. Both the learned counsel referred to number of decided cases in their support. However, I do not propose to discuss each case for the simple reason that the principles deducible are not in dispute though each case proceeds on its own peculiar set of facts and circumstances. Section 22 provides that in suit brought for pre‑emption, the Court at or before settlement of issues, shall require the plaintiff to deposit in Court such sum which does not in its opinion exceed 1 /5th of the probable value of the land or property or to give security of a sum not exceeding such probable value. Object is to protect the vendee from frivolous, vexatious ants speculative claims. In case plaintiff fails to deposit the amount or to give security as demanded within time originally fixed or extended by the Court, plaint shall be rejected. It is undisputed that the Court has powers to extend the time fixed by it though it lies in its discretion. Extension can only be granted if sufficient cause is shown for it. There is no denial of the fact that the vendee has a right to be heard before extension is allowed because be is deeply interested in the effects of non‑compliance of the term of the order made by the Court as also to prove that no sufficient cause existed to make any variation therein. In the case in hand, plaintiff prayed for extension on the ground of some misconception and the Court believing it to be so extended the time. Extension was allowed at a time when the period of limitation provided for a pre‑emption suit had not run out. Additionally the defendant did not object at the earliest. It is not his case that he was totally unaware, For over six years the defendant kept mum and did not raise even a little figure to the action of the Court in extending the time. Meanwhile, the trial went on and parties produced evidence also. In these circumstances, it can be safely assumed that defendant acquiesced in the order of extension, till such time that the defendant invited the attention of the Court through miscellaneous petition praying for rejection of the plaint. Trial Court promptly took notice and without probing into the sufficiency of cause proceeded to recall/review the order and to reject the plaint. Learned District Judge, for good and sufficient reasons set aside this order. Absence of notice and non‑hearing, in the circumstances, pales into insigni ficance. Obviously the notice is given so that he vendee could be heard and offer his objection if any. Despite knowledge vendee did not raised any objection. It can, therefore, be safely said that he did not feel aggrieved by his non‑hearing otherwise he could have raised the objection at the earliest. Conduct of the vendee in the background of the circumstances available on record cannot go unnoticed. He observed discreet silence over a fairly long period and delayed objection till the stag when limitation period for the suit had expired. Learned trial Judge, therefore, to my mind, acted improperly to order rejection of plaint under section 22(4) of the Punjab Pre‑emption Act, 1913. In Khuda Rakhsh v. ,Sultan Muhammad and another (1985SCMR192), Supreme Court of Pakistan Muhammad Munir, C. J. as his Lordship then was on section 23(4) of N.‑W. F. P. Pre‑emption Act (XIV of 1950), provisions whereof are in Pari materia with section 22 of the Punjab Pre‑emption Act 1913 observed:‑‑ "Under section 23, subsection (4) it is for the Court to extend time for the deposit of the pre‑emption money and that provision contains no indication whatsoever of the grounds on which time may or may not be extended. The discretion of the trial Court is, therefore, absolute and is not restricted by any statutory considera tion. We are unable to accept the contention of the learned counsel for the respondent that the extension cannot extend beyond the last date for the institution of the suit and that a Court acts illegally or with material irregularity if the time for the deposit in extended beyond the period of limitation for the suit. In the present case, the appellant prayed for the revision of the order of deposit 3 days before the date by which the deposit could have been made. If the Court had rejected this application on that very day the plaintiff still had 3 days within which to make the deposit. The Court, however. extended the time to 30th January. and ordered the plaintiff to pay Rs. 30 as damages. There was, therefore, no irregularity on the ground of which the Judicial Commissioner could have interfered in revision. It was obviously not a case of jurisdiction in the trial Court as the learned Judicial Commissioner seems to think and there was no illegality or material irregularity in the procedure adopted. Nor are we able to accept the finding in revision that the plaintiff's conduct in not depositing the amount within the time originally fixed and in asking for review of that order was mala fide " Looking to the circumstances of the present case, in the light of statement of law aforenoted, I find and hold that exercise of power in favour of the plaintiff to extend time was a proper exercise of discretionary jurisdiction and the learned successor Judge did not act properly in reviewing the aforesaid order for rejecting the plaint on account of alleged C late deposit. In the result of what has gone before, I do not think that the view of law taken by learned District Judge, Multan suffers from an error. On the circumstances available on record, this appears to be correct approach. F. A. O. is found to be without merit and is dismissed with no order as to costs. A. A Appeal dismissed.