2006 PLP 1939 (YLR)

MUHAMMAD AKHTAR SHABBIR, J.

Facts constituting for presenting the present revision petition under section 115, P.P.C. are to the effect that Muhammad Sharif plaintiff/petitioner had filed a suit for possession through pre-emption on the sale of land measuring 41 Kanals, 2 Marlas through Mutation No.123 attested on 13-4-2004 in favour of defendant/ respondent on 10-8-2004. On the said date, the plaintiff/petitioner was directed by the trial Court to deposit 1/3rd money (Zar-e-Soim) of the total sale price within one month (30 days) from the date of this order. The plaintiff deposited Zar-e-Soim on 10-9-2004. On the objection of other side that the plaintiff/petitioner had deposited the Zar-e-Soim beyond the period of 30 days (stipulated period), the suit was dismissed on 9-9-2004. Feeling aggrieved, the plaintiff/petitioner preferred an appeal which came up for hearing before the Additional District Judge, Bahawalnagar who vide, his judgment dated 9-7-2005 dismissing the appeal maintained the dismissal of the suit of the plaintiff.

2. Learned counsel for the petitioner contends that the day of filing the suit shall be excluded and the time of 30 days period would be counted w.e.f. 11-8-2004. Further contends that the petitioner should not be ousted merely on technicality of procedure.

3. I have heard the arguments of the learned counsel for the petitioner and perused the record.

4. Section 24 of the Punjab Pre-emption Act, 1991 reads as under: Section

24. Plaintiff to deposit sale price of the property.

(1) In every suit for pre-emption, the Court shall require the plaintiff to deposit in such Court one-third of the sale price of the property in cash and for the remaining two-third furnish bank guarantee to the satisfaction of the Court within such period as the Court may fix: Provided that such period shall not extend beyond thirty days of the filing of the suit: Provided that if no sale price is mentioned in the sale-deed or in the mutation, the Court shall require the deposit of one-third of the probable value of the property, and the bank guarantee for the remaining two-third of such probable value: Provided also that the plaintiff may, in lieu of bank guarantee, deposit the required amount in cash. (2) Where the plaintiff fails to deposit one-third of the sale price or the probable value of the property and the required bank guarantee under subsection (1) within the period fixed by the Court, his suit shall be dismissed. (3) Where the plaintiff withdraws the sum deposited by him or the bank guarantee furnished by him under subsection (1), his suit shall be dismissed. (4) Every sum deposited under subsection (1) shall be available for the discharge of costs. (5) The probable value fixed under subsection (1) shall not affect the final determination of the price payable by the pre-emptor.

5. The issue under discussion that boils down for determination in this case is whether the deposited amount by the petitioner on 10-9-2004 was within time or it was beyond 30 days and that the Court was competent to extend the period suo motu or on the application of the plaintiff/ petitioner. The legislature has imposed restriction on the power of the Court restricting it that time for deposit of 1/3rd of the sale price shall not extend beyond 30 days of the filing of the suit. From the plain reading of the provisions of section 24 of the Pre-emption Act, it is manifestly clear that 30 days shall be counted from the day of filing the suit. It would mean that it was the duty of the plaintiff/pre-emptor to deposit 1/3rd of the sale amount as soon as he institutes the suit in the Court and 30 days time would start from the day of filing of the suit. In the instant case, on 10-8-2004, the Court has directed the plaintiff/petitioner to deposit 1/3rd of the sale amount within 30 days. The time of 30 days expired on 8-9-2004. The day of filing of the suit (10-8-2004) shall be calculated 30 days would be as under:-- 10-8-2004 to 31-8-2004: 22 days equal to 30 days. 1-9-2004 to 8-9-2004: 8 days. Total days of August and September, 2004, 30 days ending on 8-9-2004.

6. The pre-emptor is under legal obligation to deposit the one-third amount within 30 days of filing of the suit and not from the date of passing the order. Had the order not been passed by the Court even then the plaintiff was duty bound to deposit the amount within 30 days of filing of the suit. Though the plaintiff/petitioner had deposited the amount in compliance with the order of the trial Court but 1 day after the expiry of 30 days. Since the power of extension of time for deposit of one-third has been restricted to 30 days and the Court cannot extend the same. The first proviso to section 24 bars the discretion of the Court to extend the time beyond 30 days by a positive command in the negative. Therefore, if the period expired on one day earlier than the deposit made by the petitioner, it cannot be extended or no benefit can be given to the petitioner. The requirement of deposit of 1/3rd was a mandatory in nature and not directory and the plaintiff was required to deposit the same within thirty days. Reliance in this context can be made to the cases of Imran Ahmad and another v. The District Judge, Dera Ghazi Khan and two others (2003 CLC 1597), Muhammad Ilyas and 4 others v. Munshi Khan (2003 CLC 1815) and Rehman-ud-Din and another v. Sahibzada Jehanzeb (2004 SCMR 418).

7. For the foregoing reasons, this petition being devoid of any force is dismissed in limine. H.B.T./M-269/L????????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.