1980 PLP 245 (CLC)

"it is well-known that the requirement of a cash deposit or security contained in the sub-section is intended to guard against vexatious and mala fide litigation, and thus to guarantee a vendee against frivolous proceedings on the part of possible pre-emptors. The deposit is a token of good faith, and equally the security for the full amount of the purchase price continue a guarantee that plaintiff will meet whatever, demand is made money in case his suit succeeds " , Thus it would appear that the aim and go of the cash deposit or security required under sub-section (1) of section 21, Right of Prior Purchase Act, is to provide protection against frivolous proceedings. This object could be fully attained if the security sought to be furnished) on that date was found to be satisfactory ; particularly in view of the fact; that neither written statement by the defend ant-vendee was submitted by' then nor issues were framed and also because no further adjournment was sought for the purpose. More so because on the previous date the Presiding Officer was on leave. The Clerk. who adjourned the case, does not appear to have been authorised to receive security bonds in such cases or verify them in the absence of the Presiding Officer or extend the time. The delay appears to have been caused not by an act of the pre-emptor alone but also due to the absence of the Presiding Officer on leave. The maxims lex non cogit a dispossibilia (the law does not compel a man to do that which he cannot possibly perform) and .4ctus legis (curiae) nnrnif,o gravabit' (an act of the Court shall prejuacc.- no man) are the general principle of law. When the Presiding Officer on the previous date himself was absent, and llajira, a place of circuit sitting is not: the permanent seat of the trial Court and also because people of the area are illiterate the Court could well exercise its powers to extend the time ; rather stiff the prosecution and penalise the pre-emptor fur omission to which the Presiding Officer has also contributed partly by remaining absent. This power to extend the time, of course, is discretionary and we think that the discretion in the matter must be exercised bona fide and with the view of achieving ends or object for which it is conferred. The word 'discretion', according to "Words and Phrases Legally Defined", Second Edition by John B."Saun rs, means :-- "When it is said that something is to be done within the discretion of the authorities that something is to be clone according to the rules of reason and justice, nor according to private opinion Raoke's case (1598) 5 Co. Rep. 99b; according to law, and not humour. It is in be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit to which an honest man competent to the discharge of his office ought to confine himself: Wilson v. Rastall (1972), Term Rep. 757, Sharp v. Wakefield (1891) A C 173. (H.L.), per Lord Halsbury, L.C. at p 1 9."

4. It is well-settled law that the Court can extend the time fixed for furnishing security under the provisions of subsection (1) of section 21 of the Right of Prior Purchase Act. In P L D 1967 Lah. 1068 the order was for making deposit of one/fifth of the probable value of the property. It was held at page 1069 that "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 it is not to act mechanically, and has to objectively consider the circumstances which led to the delay." This authority further says that `appellate Court has also the power to grant a pre-emptor an extension of the period for payment, fixed by the Court of first instance but it will exercise that power only in favour of the pre-emptor whose conduct has been bona fade' Section 21 of the Right of Prior Purchase Act reads as follows "21.-(1) In every such suit the: Court shall at, or at any time before, the time of settlement of issues, require the plaintiff to deposit n the Court such sum as is in the opposition of the Court equal to one-fifth of the probable value of the land or property or require the plaintiff to give security to the satisfaction of the Court for the payment of a sum not exceeding such probable value within such time as the Court may fix in such order. (2) In the case of an appeal, the appellate Court may at any time exercise the powers conferred on a Court under sub. section (1). (3) .... : (4) If the plaintiff fails within the time fixed by the Court or within such further time as the Court may fix to make the deposit or furnish the security under subsection (1) or (2) his plaint shall be rejected or his appeal dismissed as the case may be." It is quae clear from:. the laug!t8e of subsection (4) of section 21 of e 1-ight of riot Purchase Act that rejection of the plaint shall be ordered if the plaintiffs fails to make the deposit or furnish the security within the time `fixed by the Court' or `within such further time as the Court may allow to make )the deposit "'z furnish security'. This clearly shows that the E17al Court has power to extend the time. This view is fortified by P L D S C (Pak.) 69 wherein at page 72 it is held :-- "It will be apparent from the language of subsections (4) and (5)(b) of section 22 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."

5. There is nothing in section 21 which debars a Court from extend ing the period fixed by it but extension should not be granted unless there are good and sufficient reasons. As discussed above, there was, in view of the absence of the Presiding Officer on leave, justification for extension of the time which power the trial Court failed to exercise without sufficient grounds. This power of extension of period originally fixed by the trial Court is also available to the Court of appeal under the general provisions of Civil Procedure Code contained in section 107, under which the appellate Court is vested with all those powers which the original Court possesses and can pass all orders that can be passed by the trial Court. To prevent miscarriage of justice the Supreme Court, by virtue of its plenary powers under section 42-A (1) Interim Constitution Act, 1974, can always pass orders. After careful examination of all the facts of the case we are of the view that the object of requiring the security, in the circumstances of this case, was well served when pre-emptor, on the date fixed by office in the absence of the Presiding Officer, submitted security bond duly executed before his suit was rejected by the Presiding Officer. We therefore, accepting the appeal, set aside the order passed by all the Courts below and remand the case with the directions that it shall be restored on its original number and after giving notices to the parties and providing time to pre-emptor for furnishing fresh security bond it shall proceed with the case in accordance with law. Cost shall follow the event. S.Q Appeal accepted.