P L D 1967 Lahore 1059 (PLP)

The plaintiff-respondent instituted a suit for pre‑emption against the appellant‑defendants. The trial Court by its order dated the 21st of March 1963, ordered under clause (1) of section 22 of the Punjab Pre‑emption Act the plaintiff to deposit 1/5th of the pre‑emption money by the 17th of January 1963. The plaintiff failed to deposit that amount. The deposit was made by him on the 19th of January 1963, which was accepted subject to the condition that it was at his risk. On an application dated the; 6th of February 1963 submitted by Muhammad Azam, respondent, one of the vendees, the Court framed an additional issue, "Whether Ditta the plaintiff has deposited 1/5th of the sale price in time? If not what is its effect on the suit?" On the same date the plaintiff also submitted an application for the condonation of the delay of two days and alleged that it was due to the negligence of his counsel that the amount could not be deposited on the 17th of January, which was the last date for the deposit. The trial Court did not condone the delay and rejected the application on the same day. In disposing of the suit, the learned Court held that the plaintiff had a superior right to pre‑empt but ordered "the rejection of his suit" on the ground that he had failed to deposit 1/5th of the pre‑emption money within time. The learned District Judge accepted the appeal on the ground that trial Court by inviting evidence on merits of the case had impliedly extended the time for the deposit of 1/5th of the pre- emption money. This is the second appeal by the vendee.

2. The Court had rejected the application of the plaintiff respondent for extension of time on the same date on which the Court had framed an issue as to the effect of the default committed by the plaintiff in making the deposit. He could have decided the additional issue without adjudication of other issues, but he chose to decide this issue along with the other issues. The procedure adopted by the trial Court is not open to any exception. At times it is just and proper that all the issues including those based on preliminary objections are decided together because it obviates the possibility of a remand of the case for retrial on merits in case the decision of the trial Court on a preliminary issue or an issue of such a nature is set aside by the appellate Court. It is, moreover, not uncommon for the trial Court to adopt such a procedure. The defendants do raise the preliminary objections which, if accepted, may result in the rejection of the plaint under Rule 11 of Order VII of the Code of Civil Procedure, but still the Court instead of deciding those issues first, also frames the issues on merits and decides both the preliminary issues and issues on merits by one order. By the mere fact that the trial Court proceeded to decide all the issues together including the one based on failure to comply with section 22 of the Pre‑emption Act, it is not reasonable to infer that the Court had by implication extended the time fixed for payment under clause (1) of section 22 of the Act. In Tufail Muhammad v. Zia Ullah Khan (P L D 1965 S C 269) the Supreme Court held: "We are at the same time not inclined to agree that the simple mention of the date of an order which is to be interfered with will relieve the officer interfering with the order after the expiry of the ordinary period of limitation from making any reference to limitation" and thereby repelled the contention raised before them as to the condonation of delay by implication. In Bahadur Shah v. Ahmad Shah (A I R 1925 Lab. 209) it was held: "The mere fact that a Court receives, attests and places on the record a security bond filed after the date fixed by the Court for putting it in, does not by implication extend the time within which the security was to be furnished, and in such a case the plaint should be rejected under section 22(4). In Raja Khan v. Muhammad Khan (I L R 11 Lah. 531) the facts of the case were that in a pre‑emption suit the plaintiff's, instead of depositing one- fifth of the purchase money by the 6th of August 1928, as ordered by the Court, filed a security bond for payment of the purchase money whereupon the Court passed the order: "Zamanat Manzur hai, shamil misal howe." The hearing of the case was postponed to 15th of September 1928, and in the meanwhile the trial Subordinate Judge was succeeded by another Subordinate Judge, who rejected the plaint under section 22(4) of the Punjab Pre‑emption Act on the ground that the plaintiffs had failed to comply with the Court's order requiring them to deposit one‑fifth of the purchase money. The District Judge on appeal disagreed with the trial Court and held that the Subordinate Judge having accepted the security bond had by implication varied his previous order as regard cash pay ment. The High Court held that the "plaint must be rejected as there is no presumption that the Subordinate Judge varied his previous order by accepting a security bond instead of a cash deposit. "

3. It was next contended that the District Judge had also by accepting the appeal condoned the delay in the deposit of the amount. The District Judge had only held that the trial Court had, by implication, extended the time for deposit. He did not condone the delay by his own order.

4. It was next contended that the delay was caused due to the negligence of the counsel for the respondents and, therefore, the delay should be condoned in these proceedings. There is nothing on the record to show that his counsel was in any way at fault. Doubtless, in the application which the respondent made on the 19th of February 1963, for the condonation of the delay and the extension of the time, he made a reference to the fact that his counsel, Mr. Abdul Wahid had failed to deposit the money, but he did not support the allegation by his affidavit, nor did he bring any other fact on the record to substantiate it. The allegation having not been proved, the reason put forth for the condonation of the delay in the deposit, therefore, does not exist. It is only for a sufficient cause that a time for making the deposit under section 22 can be extended; because the object of an order under clause (1) of section 22 is to guarantee vendees against frivolous proceedings on the part of the possible pre -emptors. The deposit is a token of good faith. The intention of law is that the pre‑emptor should deposit the amount under clause (1) of section 22 by the date fixed for the purpose, and the Court can extend the time of deposit, but ft is not to act mechanically, and has to objectively consider the circumstances which led to the delay. The respondent has failed to make out any good ground for the condonation of the delay. An appellate Court has the power to grant a pre‑emptor an extension of the period for payment fixed by the Court of first instance but it exercises that power only in favour of the pre‑emptor whose conduct has been bona fide.

5. The appeal is accepted, the order of the District Judge dated the 31st of January 1964 is set aside and that of the trial Court dated the 19th of February 1963 is restored. There shall be no order as to costs. K. B. A. Appeal accepted.