1987 PLP 216 (SCMR)

(b) Constitution of Pakistan (1973)‑‑ ‑‑‑Arts. 185(3) & 199‑‑N.‑W.F.P. Pre‑emption Act (XIV of 1950), S.23‑ Civil Procedure Code (V of 1908), S. 115‑‑Suit for pre‑emption‑ Extension of time to deposit sale‑price‑‑Discretionary jurisdiction of trial Court‑‑Revisional jurisdiction‑‑Exercise of. Trial Court allowing extension of time to deposit sale price‑‑Order set aside in revision by District Judge but restored in writ jurisdiction‑‑Plea that decision of District Court could not have been set aside in writ jurisdiction, repelled‑‑Order of extension passed by Trial Court under S. 23(4) of N.‑W.F.P. Pre‑emption Act, 1950 being in exercise of discretionary jurisdiction and no illegality or irregularity having been pointed out to form basis of revisional order, District Judge had acted without lawful authority and High Court's judgment was unexceptionable‑‑Leave to appeal refused. Mirza Anwar Baig, Advocate with M.A. Siddiqui, Advocate‑on Record for Petitioners (in both Civil Petitions). Nemo for Respondents (in both Civil Petitions). Date of hearing: 10th December, 1986. MUHAMMAD AFZAL ZULLAH, J.‑‑ Leave to appeal has been sought in these two petitions from judgment, dated 17‑9‑1985 of the Peshawar High Court; whereby respondent pre‑emptor's writ petitions arising out of order of extension of time for the deposit of pre‑emption money, were allowed. The trial Court had directed the respondents under section 23(1) of the N.‑W.F.P Pre‑emption Act, 1950. to deposit Rs 50,000 as probable sale‑price prior to 21st of November, 1981. The respondent pre‑emptor made an application on 21‑11‑1981 for extension of time stating that 20th November, 1981, being Friday deposit could not be made, therefore, the time might be extended. The trial Court allowed the application and permitted the deposit to be made on the same day i.e. 21st November, 1981. The deposit was in fact made on that very day. This order was set aside by the District Court on petitioners' Revision and the case was remanded, for fresh decision after recording the evidence. The learned trial Court after due observance of the remand order maintained the earlier order dated 21st of November, 1981. The petitioners again filed a Revision Petition before the District Court which was allowed and the order of extension of time passed by the trial Court was set aside. The respondent's writ petition against the revisional order of the District Court have been allowed on the main ground that by virtue of section 9 of the West Pakistan General Clauses Act (No. VI) A of 1956, it was permissible that the deposit could be made on the day next after the public holiday. Reliance was placed on Umar Hayat v. Aziz Ullah Khan etc. P L D 1956 Lah. 297 and Rahmatullah Khan and another v. Gul Sher and others P L D 1962 (W.P.) Pesh.

183. Leave to appeal has now been sought by the vendee‑defendant. Learned counsel for the petitioners has contended that the decision of the District Court could not have been set aside in writ jurisdiction. He, however, admits that in the order of extension passed by trial Court under subsection (4) of section 23 of the N.‑W.F.P. Pre‑emption Act was in exercise of a discretionary jurisdiction. He is also unable to point out any ground regarding jurisdiction, illegality or irregularity which might have been made the basis of the revisional order under section 115, C.P.C. We are, therefore, of the view that in the circumstances of this case, the District Judge had acted without lawful authority in setting aside the discretionary order of the trial Court passed under subsection (4) of section 23 of the N.‑W.F.P. Pre‑emption Act. The High Court judgment is unexceptionable. No justification has been made out for interference as these are not fit cases for grant of leave to appeal. M.I. Petition dismissed.