P L D 1957 (W (PLP)

KAIKAUS. J.‑

This is an execution first appeal against the order of the Senior Civil Judge, Multan, holding that on account of failure to deposit the money required by a pre‑emption decree, the suit of the plaintiff stood dismissed. The facts are that a decree for possession by pre‑emption was passed in favour of the appellant by the Senior Civil judge on the 31st of January 1955. The amount to be deposited by the pre‑emptor was Rs. 22,000, and it was to be deposited within three months from the 31st of January 1955, i. e., the last date for depositing the amount was 30th of April 1955. The decree directed that if the deposit was not made within three months, the suit would stand dismissed. The amount was actually deposited only on the 3rd of May 1955. When the appellant applied for execution, the defendants objected that there was no decree in favour of the plaintiff as the suit stood dismissed for failure of the plaintiff to deposit the amount within time. The allegations of the plaintiff in reply to this objection were as follows. On the 30th of April 1955, he and his Mukhtar had gone to the National Bank of Pakistan with the required amount in order to get it deposited. (He had got the challans prepared already on the 28th of April 1955.) They reached the National Bank of Pakistan at 11 a. m., but the bank officials refused to receive the money on the ground that they had already closed the cash. They then went to their counsel. Malik Wahid Bakhsh. The Senior Civil judge was on leave that day and they with their counsel appeared before the District Judge with a request that the money be allowed to be deposited in Court as the bank had already closed. The District judge, directed them to bring a written application. When they returned with the application. it was past 1 o'clock, and the District Judge had already left. Then they went to Khan Muhammad Siddique Ahmad Khan, Civil judge at Multan, and presented the money to him along with an application but he refused to accept the money and made an endorsement on the applica tion that it be put up before the Senior Civil Judge. The next day, i. e., the 1st of May was a holiday. On the 2nd of May 1955, this application which contained a prayer for extension of time for making the deposit was put in before the Senior Civil judge, who had returned from leave. This application was adjourned to the next day, i.e., the 3rd of May 1955 for kaifiyat sarishta. On the 3rd of May 1955, an order was made that the money be allowed to be deposited subject to all just exceptions. The decree‑holder then deposited the money under the challan which, as stated above, had already been secured on the 28th of April 1955. The decree‑holder produced in support of his case the Reader of the Court of the District and Sessions Judge, who deposed to the effect that some time after 1 o'clock the decree‑holder and his counsel had come to the Court of the District Judge and wanted to deposit Rs.22,000, that they were directed to bring a written application and that by the time they returned, the District judge had left. Khan Muhammad Siddique Ahmad Khan, Civil judge, was produced and he stated that on the 30th of April 1955, he had been approached by Malik Wahid Bakhsh, counsel for the decree‑holder, with an application which contained a prayer that the decree‑holder be allowed to deposit the money the neat day but that he refused to pass such an order. He did not count the money himself but he was told that it was Rs. 22,

000. The endorsement which Khan Muhammad Siddique Ahmad Khan made on the application says the money is there with the applicant but the treasury is closed. Malik Wahid Bakhsh, counsel for the decree holder, made a statement that at about 12‑30 p m., the plaintiff and his Mukhtar approached him, saying that they had brought Rs. 22,000 but that the treasury had been closed. As the Senior Civil judge was on leave, they first went to the Court of the District and Sessions judge and prayed that the money be received. The District judge told them to bring a written application, but by the time they brought one, the District judge had already left. They then went to Khan Muhammad Siddique Ahmad Khan and showed the money to him. He, (Malik Wahid Bakhsh) had counted the. money. It was Rs. 22,

000. Rustam Khan, Mukhtar of the decree‑holder, also made a statement in support of the case for the plaintiff. The defendants led no evidence. The learned Senior Civil Judge came to the conclusion on this evidence that in fact the plaintiff had brought Rs. 22,000 on the 30th of April 1955, but the National Bank had closed receipts when he visited the Bank; that the Court of the Senior Civil judge was closed on that day; that the counsel of the plaintiff had taken the plaintiff and his Mukhtar to the Court of the learned District judge and had prayed for extension of time for deposit of the amount; that by the time this application was brought the Court time was over and the learned District judge had left ; that the plaintiff's counsel went to Khan Muhammad Siddique Ahmad Khan, Civil Judge, who had directed him to appear before the learned Senior Civil judge on the 2nd of May 1955 ; and that in fact an application for extension of time had been made on the 2nd of May 1955 and an order was passed on that application as stated above subject to all just exceptions. The learned Senior Civil judge decided against the plaintiff on the ground that there was no good reason for not depositing the money on the 2nd of May. Two points had been argued before the learned Senior Civil Judge, the first that there was power in the Court to extend time for making the deposit and the second that their had been compliance with the decree of the Court and that the deposit should be held as having been made within time. The learned Senior Civil Judge had decided on both the points against the decree‑holder. Before me the first point has been given up. I have only to decide whether the amount was deposited in time. The contention of the appellant on this point is that the National Bank of Pakistan was the agent of the Court for the receipt of the amount and, as the amount had been tendered to the agent within Court hours, there was sufficient tender of the money amounting to payment and the plaintiff cannot be penalised for the refusal by the National Bank of Pakistan to accept the amount. Reliance is placed on Mahbub Ali and another v. B. Bishan Singh (A I R 1944 Lah. 470) for the proposi tion that this tender was sufficient payment. In that case a judgment‑debtor had, on account of an instalment‑decree. to deposit certain sums in Court. There was one instal ment which if paid by the end of June 1940, would have been in time. The judgment‑debtor took that amount to the Imperial Bank at 1 p m. By the time the formalities for deposit were complied with, it was 2‑15 p. m. The Imperial Bank used to close Government business at 2 o'clock so that the amount could not be deposited on that day and was in fact deposited on the next day. The learned judges held that, as Court time was up to 4 o'clock, the Imperial Bank, which was the agent of the Court, was not entitled arbitrarily to reduce the time within which the deposit could be made and could not have refused to receive the deposit at any time within Court hours. Their Lordships held that the offer of the decree‑holder to deposit the money on the 1st of July was sufficient legal tender so that the decree had been complied with. I must state that I find some difficulty in regarding the offer' of the decretal amount as tender in the strict legal sense. If it were to be so regarded, the result would be that it would be tantamount to payment and after having once offered the money to the Imperial Bank, the person concerned would not be under any obliga tion to make any further effort for the payment of the money. I do not think that the learned judges meant to lay down that ,even if the amount in that case had not been paid on the 2nd of July the decree would still have been complied with. I only understand the learned judges to mean that if the offer of the amount to the bank on the 1st of July within Court hours was accompanied by a subse quent effort to deposit the amount on the next working day, there would be no default. But if that be what the learned Judges ' in fact intended to lay down, then it will not be correct to interpret their judgment as holding that the offer would be strictly speaking a legal tender. My own view of the effect of refusal of treasury or the bank to accept a deposit at any time within Court hours is that we should regard the treasury or the bank as being closed on that day and should give the party concerned the same benefit as he R would 'have if the treasury or the tank was closed. Under section 10 of the General Clauses Act if a Court or office is closed on the day when an act is to be performed therein, the act can be performed on the next opening day of the Court or office. I am of the opinion that the section would be applicable even if the Court or office is closed for a part of the day, for it was the party's right to perform the act in that part of the day for which the Court or office was closed, and, therefore, even when the Court or office is closed for some part of the usual working hours, the party concerned would get the benefit of section

10. When a treasury or the bank refuses to accept a deposit on the ground that it transacts business only up to a certain time then the treasury or the bank should be deemed to be closed for that part of the day in which it refuses to transact such business and the party concerned should have the right to l make the deposit on the next day. Thus interpreted, we are not confronted with the difficulty that arises if we regard the offer of money as a legal tender, for with this interpretation there still remains a duty cast upon the party to make an effort to deposit the money on the next day and the law is not complied with simply by once making an offer. I should explain here that there are difficulties no doubt even in placing the interpretation which I am suggesting. It may be said that the bank or the treasury is continuously closed, for if it is closed for a part of the time, section 10 becomes applicable, and a party may take the plea that he wants to make a deposit only at a time when the treasury is not transacting Government business. Suppose a Govern ment business ends at 2 p. m. and Court hours are up to 4 p. m. A party may say that he wants to make a deposit only between 2 and 4 p. m. and that it is his right to do so. On this plea he may never make a deposit and may say that he is justified .in doing so, because all the time the treasury is closed. My answer to this problem would be that if the party is confronted with such a difficulty, he is entitled to go straight to the Court and make a tender although the Court has named the treasury as its agent. s If the agent refused to receive the money, the party can tender the money in Court itself and so comply with the directions of the Court. He cannot be allowed to take the benefit of the refusal of the agent unless he shows that he has also made reasonable efforts to present the money to the Court itself. On the effect which I attribute to the refusal of the bank to receive the money, there still remains a difficulty in the way of the plaintiff in the present case. We can regard the National Bank of Pakistan as being closed on the 30th of April 1955, and, at the same time, the Senior Civil Judge was on leave so that the party could not have made the deposit even in Court. The 1st of May 1955 was a holiday. So if the deposit had been made on the 2nd of May, there could be no objection that it was not made in time. The serious objection is that the plaintiff did not make the deposit on the 2nd of May but on the 3rd of May. On the 2nd of May, he had put in an application for extension of time which was granted only on the 3rd, The plaintiff had misconceived the legal Position. He under the impres sion that he had to get an order for extension of time before he could make a deposit. In fact there was no necessity for him .to do so. He had already got with him the challans for depositing the amount and without any further order from the Court, he could have deposited the money in the National Bank of Pakistan. Can this delay of one day, which is caused by his misconception as regards the legal position, be condoned ? There are two reasons on account of which I would hold the deposit in time. They are: (1) If a party makes a tender of the required amount in time but is prevented from making the deposit by some impediments placed in his way by the Court or an agent of such Court and the party is not thenceforward negligent in its efforts to make the deposit without delay, the party should not be penalised ; (2) in the circumstances of this case the amount can be regarded as having been tendered to the Court itself on the 2nd of May 1955. As regards the first reason, it is a well‑established principle that no person can be prejudiced by an act of Court. The act of Court would include an act of and officer or an agent of the Court. I must state that what has strongly influenced me in this case is: Here is a party who had made a tender of money in time. Had either the agent of the Court not refused, or had the Senior Civil judge himself been not on leave on that day, this situation would not have arisen at all. Now, it is true that after that the plaintiff did not correctly realise the legal position and instead of making a deposit in the bank, submitted to the Senior Civil judge the application which he had previously submitted to Khan Muhammad Siddique Ahmad Khan. We cannot say that this mistake which he committed is such that it disentitles him to all the benefit which I would allow him on account of his having already made a tender in time. He may have had the impression that, as the order of the Court was that the money be deposited by the 30th of April 1955, that the National ‑Bank of Pakistan would refuse to receive the money after the 30th of April 1955 or he may have thought that whether the amount was received or not the deposit may be invalid unless and until the Court passed an order beforehand extending time. We cannot say that in making such assumptions the plaintiff was guilty of such negligence as would be a justification for penalising him. I have also to consider the fact that had the learned Senior Civil Judge not adjourned the hearing of the application to the 3rd of May by calling for kaiiyat sarishta, the deposit would still have been made on the 2nd of May. As regards the second of the reasons which I have stated above, whether there has been a tender of the amount, would depend upon the circumstances of each case. Here there can be no doubt as the lower Court has found that the money was with the plaintiff. He took this money first to the District Judge and then to Khan Muhammad Siddique Ahmad Khan along with his application. The same applica tion he submitted to the Senior Civil Judge when he returned from leave on the 2nd of May, and there can be little doubt that the money was still with. the plaintiff. Although the application does not‑ in terms say that the plaintiff wants to deposit the money in Court, it does amount to saying that he has got the money and that he wants to deposit it in the National Bank of Pakistan wherein according to the directions of the Court he had to make the deposit. If the deposit were to be made in Court, he would have simply come and offered the money. In a case where the deposit is not to be made in the Court itself but in a bank under the directions of the Court and the party brings the money and applies to the Court for an order directing the agent to receive the money, it appears to me that there is sufficient tender. I would, therefore, hold that in this case the deposit was made in time and that the suit stands decreed. This appeal is accepted but the parties will bear their own costs of these proceedings in both the Courts. A.H. Appeal accepted.