2006 PLP 1455 (CLC)

SYED HAMID ALI SHAH, 1.

Consequent upon filing this suit for possession through pre-emption, learned Court passed orders dated 10-7-1994 for depositing Zar-e-Soim, within a period of 30 days. Petitioner/pre-emptor deposited Zar-e-Soim, on 9-8-1994 respondents Nos.l to 3, moved application for the dismissal of the suit for non-compliance of order dated 10-7-1994. Learned trial Court dismissed the application vide order, dated 25-10-2000. Respondents aggrieved from the order, challenged it in revision before respondent No.4. Respondent No.4 observed that period of 30 days reckons from the day of filing the suit. Respondent No.4 observing that order dated 9-12-2003 was not complied with, accepted the revision petition. The impugned order was set aside, resultantly the suit was dismissed. Hence this petition.

2. Learned counsel for the petitioner has contended that the day on which the suit was filed has to be excluded from commutation of period of 30 days. Zar-e-Soim was deposited on 9-8-1994, in terms of order, dated 10-7-1994. Learned counsel has referred to the case of Abdul Waheed and others v. Sardar Ali and others 2000 SCMR 650 to contend that non-compliance of order for deposit of 1/3rd of sale, during the period when Courts remained closed during the month of August, for summer vacation, is not fatal and time is required to be extended. Section 10 of the General Clauses Act, 1897 was referred to contend that if the last day of the prescribed period is holiday, the act and proceedings shall be considered as done or taken on the next date afterwards on which the Court or office is opened. Learned counsel found further support in this respect from the case of Muhammad Hayat v. Ahmad Yar PLD 1986 Lah. 270; Allah Ditta and another v. Saeed Ahmad 1991 MLD 581 and Ghulam Muhammad v. Ghulam Hussain alias Hussain 2001 YLR 2343.

3. Learned counsel for respondent No.1 has submitted that according to provisions of section 24(2) of the Punjab Pre-emption Act, 1991, the period for deposit of Zar-e-Soim starts from the day of tiling suit. Learned counsel while referring to the case of Mian Asif Islam v. Mian Shahid Aslam and others 1999 SCMR 1350 has contended that period for deposit of Zar-e-Soim cannot be extended and order for dismissal of suit for non-deposit of Zar-e-Soim, within the stipulated period is not open to interference. Case of Mian Muhammad Talha Adil v. Mian Muhammad Lutfi 2005 SCMR 720 was cited in support of contention that period for deposit of Zar-e-Soim recknons from filing of suit and not from date of order/direction for deposit of 1/3rd price.

4. Learned counsel for respondents Nos.2 and 3 adopted the line of arguments, addressed by learned counsel for respondent No.1. He, however, added that writ petition is not competent. The order passed by the Court of competent jurisdiction is not open to challenge through writ jurisdiction. Learned counsel in this respect has referred to the case of Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131.

5. Heard learned counsel for the parties and perused record.

6. Plain reading of section 24(2) of Punjab Pre-emption Act, 1991, reveals that 1/3rd of the sale price (Zar-e-Soim) is to be deposited within 30 days of filing the suit, therefore, 30 days period shall be reckoned from the day of the filing of suit. Honourable Supreme Court of Pakistan in the above referred case of Mian Asif Islam and Mian Muhammad Talha Adil has held that non-compliance of order of trial Court directing the deposit of 1/3rd within 30 days, is sine qua non for attracting penalty under section 24(2). Period cannot be extended. Petitioner has deposited Zar-e-Soim during vacation and not afterward. He by his conduct is precluded to take advantage of extension in time due to vacation.

7. Argument of the learned counsel for the petitioner that as per section 10 of the General Clauses Act, 1897, the day on which the period of 30 days lapsed was a holiday being Sunday and petitioner was entitled to the advantage of one more day and secondly according to general law regarding computation of time date of filing the suit is to be excluded is not well-founded. The Act i.e. Punjab Pre-emption Act (IX of 1991) has itself provided the period within which 1/3rd of sale price is to be deposited. When special law has provided a period and also the manner of computing the period, provisions of general law are excluded. It has been stated that 30th days from filing the suit was Sunday. Zar-e-Soim was deposited on the next day and same can be considered having been deposited within 30 days. This submission of learned counsel for the petitioner is not correct. Respondents' learned counsel has shown from the diary that 30th day was Monday, which was not a holiday.

8. The other objection of the petitioner about the revision petition before the Additional District Judge beyond the period of limitation has no force. Court below has dealt with the issue of limitation in filing the revision petition, legally and justly. No illegality with regard to finding of revisional Court on issue of limitation is pointed out.

9. For the foregoing, the impugned judgment and decree is devoid of any legal infirmity and as such I am not persuaded to unsettle the same. Petition in hand is without any merits and is accordingly dismissed. M.H./R-26/L Petition dismissed.