2005 PLP 269 (YLR)

Conversely the learned counsel for the respondent defended the impugned judgment and relied upon Khurshid Brothers v. Abdul Qayum NLR 1980 UC 417; Muhammad Walayat and others v. Liaqat Hayat and others 1983 CLC 2598 and Chiragh and 4 others v. Nizam Din and 4 others PLD 1985 Lahore 101.

3. I have gone through the judgments of the Courts below, perused the record and considered the arguments of the learned counsel for the parties. Section 24 of the Punjab Pre-emption Act, 1991 reads as under:-- "

24. Plaintiff to deposit sale price of the property:-- (1) In every suit for pre-emption, the Court shall require the plaintiff to deposit in such Court one-third of the sale price of the property in cash within such period as the Court may fix: Provided that such period shall not extend beyond thirty days of the filing of the suit: Provided further that if no sale price is mentioned in the sale-deed in the mutation, or the price so mentioned in the sale-deed or in the mutation, or the price so mentioned appears to be inflated, the Court shall require deposit of one-third of the probable value of the property. (2) Where the plaintiff fails to make a deposit under subsection (1) within the period fixed by the Court, or withdraws the sum so deposited by him, his suit shall be dismissed. (3) Every sum deposited under subsection (1) shall be available for the discharge of costs. (4) The probable value fixed under subsection (1) shall not affect the final determination of the price payable by the pre-emptor." The reading of the aforementioned section clearly demonstrates that the Court after the filing of the suit has to pass an order for deposit of "Zar-e-Soem" in cash within such period as the Court may fix. However, the first proviso to section 24(1) fixes an outer limit of 30 days for deposit of "Zar-e-Soem". Non-deposit of the same within the time specified by the Court is visited with a penalty i.e. the dismissal of the suit. There is nothing in the language of the section that once the period is fixed by the Court for deposit of "Zar-e-Soem", the same cannot be -extended. The only embargo placed on the power of the Court is that the period shall not extend beyond 30 days of the filing of the suit. If the Court has specified time which is less than 30 days, for deposit of "Zar-e-Soem", the same can be enlarged under section

148. C.P.C. but not beyond 30 days of the filing of the suit. It is the discretion of the Court to extend the time. The corresponding provision in the Punjab Pre-emption Act 1913 was section 22(4) which reads as under:-- "(4) If the plaintiff fails 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 mentioned in subsection (1) or (2), his plaint shall be rejected or his appeal dismissed as the-case may be." No doubt the phrase or within such further time as the Court may allow" does not find mention in section 24 of the Punjab Pre-emption Act, 1991 but in my view it has not curtailed the power of the Court to enlarge time on tenable grounds for deposit of "Zar-e-Soem" under section 148, C.P.C. not beyond 30 days. The discretion, however, is to be exercised judicially and if good and sufficient reason is shown. The Honourable Supreme Court in the case of Awal Noor v. District Judge, Karak and 8 others 1992 SCMR 746 observed that:-- "The first proviso bars the extension of time beyond 30 days by a positive command in the negative." (underling is mine) In another case Mian Asif Islam v. Mian Shahid Aslam and 3 others 1999 SCMR 1350 the august Supreme Court while interpreting section 24(2) of the Punjab Pre-emption Act, 1991 stated as under:-- "We are inclined to reiterate that no discretion is vested in the trial Court under section 24(2) of the Act to grant extension of time to deposit "Zar-e-Soem" beyond the initial period of 30 days." This Court also in the case of Muhammad Rafique v. Hassan Bakhsh and others 1993 CLC 622 laid down as under:-- "Further unlike the earlier provisions in section 22 of the Punjab Pre-emption Act, 1913, section 24 of Punjab Pre-emption Act, 1991, contained no express provision authorizing the Court to extend the time beyond thirty days from the date of filing of pre emption suit. Pre-emption suit was filed on 3-9-1991. An order for deposit of one-third purchase price was made on 5-9-1991. Plaintiff was required to deposit the above amount by or before 28-9-1991. Admittedly, deposit of the amount was not made by the appointed day. Though, the trial Court was empowered to extend the time till the outer limit of thirty days reckoned from the first day of filing of the pre-emption suit and there were yet few days available to it for extending the time, yet the Court was not obliged to give extension in routine without sufficient cause being made out for it. It was in the discretion of the trial Court either to extend or not to extend the time. It was not bound to extend the time till the expiry of outer limit of thirty days, in all circumstances. " In the instant case the petitioner was put behind bars on 13-4-1995. He made an application through his counsel on 18-4-1995 before the expiry of the time fixed by the Court for enlargement of the time. The trial Court had granted 23 days time for deposit of "Zar-e-Soem". The learned Additional District Judge came to the conclusion that there was sufficient cause for extending the time, and rightly so, for deposit of the "Zar-e-Soem". The discretion has been exercised by the learned Additional District Judge on sound judicial principles and calls for no interference. The case Mst. Mah Jehan v. Abdul Maroof (supra) is not applicable to the facts of the instant case. Section 24 of the Punjab Pre emption Act, 1991 is couched in similar language as original section 24 of the N.-W.F.P. Pre-emption Act, 1987 but by an amendment by Act X of 1992 the first proviso fixing the outer limit of 30 days for deposit of "Zar-e-Soem" was omitted from Act of 1987. The Honourable Supreme Court in the case of Rehman-un-Din and another v. Sahibzada Jehanzeb 2004 SCMR 418 held that the pre-emptor would be entitled to extension of time under section 148, C.P.C. in exceptional circumstances. On the parity of reasoning, in my view, the time for deposit of "Zar-e-Soem" can be enlarged as well but not beyond 30 days as envisaged by section 24 of the Punjab Pre-emption Act, 1991. The authorities relied upon by the learned counsel for the respondent are on section 22 of the Punjab Pre-emption Act, 1913 and are not applicable to the facts of the instant case.

4. For what has been stated above I do not find any fallacy in the judgment of the learned Additional District Judge. This petition has no merit and is dismissed leaving the parties to bear their own costs. S.A.K./M-688/L Petition dismissed.