1998 PLP 421 (CLC)

(i) That the plaintiff‑respondent moved an application for extension of time within the time fixed by the Court, supported by a certificate issued by a Medical Practitioner, whereby the cause of extension, the illness of his wife was substantiated; (ii) that there was sufficient cause for extension of the time which was not properly appreciated by the trial Court, as such, the first Appellate Court rightly interfered in the order passed by it; (iii) that there was a bona fide in the application on behalf of the plaintiff for extension of time as he prayed in the application that due to cause shown therein, he could only arrange Rs.20,000, as such wanted extension for the rest of the amount.

5. I have heard the learned counsel for the parties and also gone through the record with care. The plaintiff filed a pre‑emption suit on December 27, 1992. The trial Court, on September 28, 1993 directed him to deposit the one- fifth of the probable value of the suit land on or before October 30, 1993, after receiving the written statement from the defendant. An application for extension of time on the grounds of plaintiff's wife having seriously fallen ill and being under treatment in a private hospital in Rawalpindi, Pakistan, was moved on October 30, 1993. The application after receiving objections from the other side, and hearing parties was dismissed on November 30, 1993 when the suit was also to be dismissed. However, an appeal filed with the District Judge was accepted vide the impugned order.

6. In a pre‑emption suit, the Court shall, at or at any time before the settlement of issues, require the plaintiff to deposit in the Court such as in the opinion of the Court is equal to the one‑fifth of the probable value of the property, or to give security to the satisfaction of the Court for payment of sum not exceeding such probable value, within such time as the Court may fix in his order, under section 21 of the Azad Jammu and Kashmir Right of Prior Purchase Act. If the plaintiff fails within the time fixed by the Court or within such further time as the Court may fix, to make deposit or furnish security, as the case may be, his plaint shall be rejected under subsection (4) of the aforesaid provision of law. It may also be mentioned that the Court which asked the plaintiff to make deposit or furnish security, was fully empowered to extend time for compliance of its direction provided the request is made within the time fixed earlier by the Court and extension has to be granted in exercise of judicial discretion. The proposition of extension of time came under consideration before the Supreme Court of Pakistan in Malik Hidayatullah's case (PLD 1972 SC 69) wherein it was observed as under:‑‑

The Court was fully competent suo motu to extend the time when it had by its own act made it practicable impossible for the appellant to comply with its original order by adjourning the application for furnishing security to the 6th of January, 1968. From the language of subsections (4) and (5) (b) of section 22, it is apparent that the rejection of the plaint or the dismissal of the suit will be ordered if the plaintiff fails to make the deposit within the 'time fixed by the Court' or within such further time as the Court may allow to make the deposit or furnish the security'. This clearly contemplates that the Court has the power to extend the time. This is no doubt, a discretionary power, which like all other judicial discretions, must be exercised upon sound judicial principles, but it can, by no stretch of imagination, be said that the Court has no jurisdiction to extend the time at all. The Punjab Pre emption Act does not prescribe any procedure for, obtaining such extension of time but upon general principles, a Court has normally to be moved by an application of some kind, either oral or written. This does not, however, mean that the Court has no jurisdiction, in the absence of any such application, to grant a discretionary relief where the justice of the case so requires. In the absence of any provision in the Statute or in the rules made under the Statute expressly providing that the Court shall act on the application of a party it cannot be said that such an application is a condition precedent to the exercise of the power. The power does not become nugatory, if no application is made for invoking that power. If the Court could under subsection (4) of section 22 extend time, then it could do so either on the application, written or oral, of a party or even suo motu where the justice of the cause so demanded. " The proposition was resolved by this Court in Ghulam Nabi's case (PLD 1991 Azad J&K 47), wherein it was held as under: ‑‑ "‑‑‑Sec.21‑‑‑Suit for pre‑emption ‑‑‑Grant of extension of time to pre emptor to deposit one‑fifth of purchase price of property in question‑‑ Validity‑‑‑Court while requiring plaintiff to deposit in Court such amount as was equal to one‑fifth of probable value of property as security, on his failure to deposit such amount, could extend further time for deposit of an amount or to furnish security failing which the plaint could be dismissed‑‑‑Court was thus, empowered to extend time for compliance of its direction‑‑‑Prayer for extension of time, however, must be made within time fixed by the Court and extension should be granted by Court in exercise of its judicial discretion‑‑‑Plaintiff having made request for extension of time within the period fixed by the Court, extension was rightly granted by Court. " The proposition also attreated the attention of Azad Jammu Kashmir Supreme Court in Qasim Hussain Shah's case (PLD 1984 SC (AJ&K) 150), wherein the following verdict was given: ‑‑ "‑‑‑Does all this constitute sufficient cause for extension of time? Sufficient cause means something beyond the control of the party. While determining the sufficient cause, the Court should be lenient and should overlook some negligence, i.e. an ordinary incident of a human affair but gross negligence cannot be condoned. Therefore, where the lapse in not depositing the decretal amount within time is not due to any default or gross neglect on the part of a person as the case is before us, but is due to the Court's neglect to do its duty, this would constitute a sufficient cause for enlargement of the time which this Court is competent to do and the delay is to be excused.‑‑‑‑"

7. The consensus of the aforesaid authorities is that the Court is empowered to enlarge the time fixed by it to deposit one‑fifth of the probable value of the property or furnish security to the satisfaction of the Court provided the application for extension of time is moved within the time fixed by it, in exercise of its judicial discretion.

8. In the present case, the plaintiff moved his application supported by an affidavit that due to his wife's illness, being under treatment in a hospital in Rawalpindi, he could not arrange the requisite amount except Rs.20,

000. Therefore, for the reasons recorded in the application, prayed for further extension. The trial Court after hearing the parties, rejected the application on the grounds that the certificate furnished by the plaintiff, did not confer any confidence for the reason that his wife is a diabetic patient while the certificate is issued by a doctor who is an Acupuncture Expert. It was also observed in the order that the plaintiff claimed to be not present on the date he was directed to deposit the amount which is contradicted by the record shown in the relevant interim orders. The learned District Judge allowed the extension of time through a remand order by accepting the appeal on the grounds mentioned in the application which were held to be supported by an affidavit and certificate issued by a qualified doctor.

9. I have critically examined the orders passed by the Courts below including the relevant interim orders and am of the view that there is no occasion to interfere in the order recorded by the District Judge, for the following reasons:‑‑ (i) That the application for extension of time supported by an affidavit was moved within the time fixed by the Court and was further supported by a medical certificate issued by a qualified doctor; (ii) that the plaintiff in his application mentioned that due to illness of his wife, he could not arrange the entire amount and was able to make arrangement of only Rs.20,000 which shows his bona fide intention that he was not frivolously litigating; (iii) that the observation of the Trial Judge with regard to the certificate issued by a doctor for the same being issued by an Acupuncture Expert which is not relevant for the purpose, has no substance as there was no material available with him to come to a conclusion that the plaintiff's wife was a patient of some other disease while the relevant doctor was not concerned with it. It may be mentioned that the doctor as it appears from the certificate, was qualified doctor having also a Diploma in Acupuncture. Therefore, the observation was rightly set aside by the District Judge; (iv) that the learned District Judge after careful consideration, keeping in view the relevant facts and circumstances, proceeded to allow the extension of time. The exercise of discretion, being based on judicial principles, does not warrant any interference by this Court.

10. In view of the above discussion, the appeal is found to have no substance in it which is hereby dismissed with no orders at to costs. A.A./139/AJ&K Appeal dismissed.