2002 PLP 545 (CLC)

Sajjad Ahmed Abbasi for Respondent. Date of hearing: 5th December, 2001. I intend to dispose of these two Civil Revisions Nos.64 and 65 of 2001 by this single judgment as both involve almost identical questions of law and facts.

2. The plaintiff/respondent instituted a pre‑emption suit on 6‑12‑1997, on which date he was directed to deposit 1/3rd of the pre emption amount within 30 days. He submitted an application on 5‑1‑1998 for the deposit of the requisite amount. The Civil Nazir submitted a report, on the asking of the Court, on the reverse of the application and on perusal of the said report the learned Judge allowed the deposit of the said amount vide his order, dated 5‑1‑1998. The said application also bears another endorsement of the Civil Nazir indicating thereby that the amount has been deposited in the treasury on 6‑1‑1998. During the pendency of the suit the defendant/petitioner submitted an application to the Court for dismissal of the suit for non‑compliance of the order by not depositing the amount as required within the requisite time of 30 days. The learned trial Court on acceptance of the application of the defendant dismissed the suit of the plaintiff on the ground that the last date for the deposit of the amount was 5‑1‑1998 while the same was deposited on 6‑1‑1998, beyond the period of 30 days as allowed by the Court. On appeal the findings of the learned trial Court were set aside on the ground that for all legal and practical purposes the plaintiff, on approaching the Court for deposit of the amount on 5‑1‑1998, has physically deposited the same in the Court. It is this judgment against which the present revision petition has been filed.

3. Learned counsel for the petitioner, while supporting the judgment and decree of the trial Court has contended that the last date for the deposit of the amount as allowed by the Court was 5‑1‑1998 while the same was deposited on 6‑1‑1998, beyond the prescribed period hence the suit of the plaintiff/respondent under section 24(2) of the N.W.F.P. Pre emption Act was liable to dismissal. In this respect reliance was placed on Shah Behram v. Akbar Khan PLD 1992 Pesh.

18. Haji Janat Gul Khan v. Haji Faqir Muhammad Khan PLD 1993 SC

204. Sherzada v. Zawar Din 1995 SCMR 90, Habibullah Khan v. Amir Zaman 1995 SCMR 135, Wahid Bakhsh v. Abdul Qayum 1997 MLD 2945 and Muhammad Iqbal v. Jehanzeb Khan 1999 MLD 2475.

4. The learned counsel for the respondent, while supporting the impugned judgment and decree of the Appellate Court, has submitted that as per requirement of section 24 which envisage the deposit of amount in the Court has been complied with by the respondent well within time when he submitted application to the Court for acceptance of his deposit brought by him to the Court on 5 1‑1998 and if the amount was not deposited in the Treasury by the official of the Court on the same day, the respondent may not be penalized for the same. In this respect reliance was placed on Abdul Aziz v. Aziz‑ul‑Haq 1972 SCMR 296.

5. Section 24(1) of the N.‑W.F.P. Pre‑emption Act, 1987 requires the plaintiff to deposit 1/3rd of the amount "in such Court". When the plaintiff came to the Court with the requisite amount and seeking permission of the Court on 5‑1‑1998 as evident from the application made by him in that respect, the various endorsements made by the Civil Nazir, an official of the Court and the preparation of the voucher of the treasury on the same day will be deemed that the plaintiff has deposited the amount on the same day and it was for the Civil Nazir to get it deposited may be with the assistance of the plaintiff whether on the same day or on the next day would make no difference as all the above steps taken by the plaintiff will be considered as valid tender of the amount in the Court and in accordance with the order of the Court. In case of Abdul Aziz v. Aziz ul‑Haq the Honourable Supreme Court has considered such deposit to be as a valid tender to the Court within the period prescribed. Relevant portion of which may be reproduced;‑‑ "After hearing the learned counsel for the petitioner, we are satisfied that the respondent had made a valid tender to the Court by getting the challan passed and by making an effort to make the deposit within time. The learned Single Judge was perfectly justified in observing that this was sufficient compliance of the order, dated 23rd May, 1968 and no question of any extension arose. In our opinion, the respondent has not committed any default. The petition is dismissed."

6. The judgments referred to by the learned counsel for the petitioners are distinguishable as in the aforesaid judgments the period of extension was involved which was held that once a period had been fixed by the Court then the same cannot be extended but here in the instant case there is no question of any extension of period but the only question is as to whether the amount has been deposited within the period prescribed by the Court or not which in view of the aforesaid discussion will be answered in the affirmative i.e. the amount has been deposited within the prescribed period.

7. The revision petitions have got no force and are dismissed. Q.M.H./M.A.K./424/P Revisions dismissed.