1970 PLP 169 (SCMR)

HAMOODUR RAHMAN, C. J.‑In a suit for pre‑emption, filed by the present petitioner, the, trial Court had, on the 9th November 1964, passed an order for the deposit of Rs. 800, being the 1/5th of the pre‑emption money by the 8th of January 1965. The petitioner could not make the deposit within the said period, but on the 8th January 1965, obtained an order from the trial Court extending the period up to 15th February 1965. On this date, however, the petitioner failed to appear and his suit was dismissed for default under Order IX, rule 9 of the Civil Pro cedure Code. The suit was ultimately restored to the file on, the 22nd September 1966 and on the same day the petitioner filed another application for the extension of time for making the deposit on the ground that he had failed to make the deposit during the time allowed due to illness. This application was heard and dismissed and then the plaint was rejected on the 23rd September 1966, under section 4 subsection (4) of the Pre‑emption Act. This order was affirmed on First Appeal by the Additional District Judge, Muzaffargarh and a second appeal there from has been dismissed in limine by a Division Bench of the High Court of West Pakistan. The petitioner now seeks Special Leave to Appeal and it is contended on his behalf, as it was contended in the High Court, that the trial Court had no jurisdiction to reject the plaint without first asking the petitioner, who was the plaintiff in the suit, to show cause for his omission. In support of this contention reliance is also placed on a decision of a learned Single Judge of the Lahore Bench in the case of Umar Hayat v. Azizullah Khan and others (P L D 1956 Lah. 297). The main reason which prevailed with the learned Judge in that case was that the Court had not, in the facts of that case, applied its mind to the question whether time should or should not be extended. The learned Judge had there observed with regard to the order of the trial Court that "it appears to be an order which automatically followed the failure to deposit the amount". The facts of the present case are totally different. In this case an application for extension of time was made, it was con sidered and dismissed and only after its dismissal was the plaint rejected. It cannot, therefore, be said that in the present case the order rejecting the plaint was automatic or that the Court had not applied its mind to the question of extending the time. In the circumstances no just exception can be taken to the order of the High Court dismissing the second appeal in limine. The High Court was right in taking the view that the Courts below had exercised their discretion in the matter upon sound judicial principles, and that there was no good ground for interference. This petition is without any merits and is, accordingly, dismissed. Leave refused.