1998 PLP 1653 (CLC)

3. In this case the learned trial Judge has dismissed the suit of the petitioners in the light of the provisions contained in section 24(2) of the N.‑W.F.P. Pre‑emption Act, 1987. The said section runs as follow: "

24. Plaintiff to deposit sale price of the property.‑‑‑(1) In every suit for the Pre‑emption the Court shall require the plaintiff to deposti in such Court one‑third of the sale price of the property in cash within such period as the Court may fix: 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. (2) Where the plaintiff fails to deposit one‑third of the sale price or the probable value of the property within the period fixed by the Court, his suit shall be dismissed." The above subsections are the substituted sections made through N.‑W.F.P. Act‑X of 1992, North West Frontier Province Pre‑emption (Amendment) Act, 1992 having effect from 31‑12‑1991. Prior to the said amendment it was necessary under section 24 upon a plaintiff/pre‑emptor to deposit one‑third of the sale price in cash and furnish bank guarantee for the remaining two‑third to the satisfaction of the Court within thirty days of filing of the suit. Through the amending Act‑X of 1992; the requirements of furnishing bank guarantee for the remaining two‑third amount and the deposit of the sale price within thirty days of filing of the suit were deleted from section 24 of the N.‑W.F.P. Pre‑emption Act in pursuance of a judgment of the Federal Shariat Court. The authorities referred to by the learned counsel for the respondent pertain to the cases which were either filed before 31‑12‑1991 or where the provisions of deposit of the amount within 30 days fixed by the Statute was in the field, and there was no other option for the Court but to dismiss the suit in case of default on part of the pre‑emptor, because the deposit of the sale price within thirty days of the filing of the suit was a mandatory requirement of law and the trial Judge had no jurisdiction to extend time in the matter which was fixed by the Statute. Therefore, in the case of Nardullah Khan v. Haji Zarif Khan etc. (NLR 1995 Civil 544) it was observed as under: "S.24. Suit filed before amendment of section 24 by Amendment Act X of 1992 would be governed by original section 24, Court could not extend statutory period of 30 days for deposit of pre‑emption money and furnishing of bank guarantee. Non‑deposit of pre‑emption money within period of 30 days fixed‑ by Court would entail dismissal of suit which would have effect of barring fresh suit. " Similar views were expressed in the judgments reported in 1995 CLC 2002, 1995 MLD 1011 and PLD 1993 Supreme Court 204.

4. However, after the Amending Act No.X of 1992, the mandatory requirement of deposit of the sale price within 30 days of the filing of the suit is no more existing and now it is up to the trial Court to fix a period of its own for the deposit of the sale price of the property in a pre‑emption case. Obviously, the trial Court is required to fix a reasonable period for enabling a pre‑emptor to comply with the directions of the Court in this regard. In the case in hand the learned trial Judge granted a period of one month to the petitioners for the deposit of the pre‑emption money which was to expire on 25‑5‑1996, but on 25‑5‑1996 there was holiday. The petitioners, therefore, moved an application on 26‑5‑1996 before the Trial Court for allowing them time to deposit the pre emption money, because of falling the date on which the petitioners were required to deposit the said amount on a holiday. In my view, it was not so a complicated question and could be answered easily with reference to the provisions of section 9 of the General Clauses Act, which provides that: "

9. Computation of time‑‑‑ Where, by any West Pakistan Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open. " The learned trial Judge, therefore, should have afforded an opportunity to the petitioners for the deposit of 1/3rd sale price of the pre‑empted property at least on that day i.e. 26‑5‑1996, if he was otherwise of the view that the petitioners were not entitled to further extension of time. In the authority "Mst. Mumtaz Begum v. Abdul Wahid 1990 CLC 1305 the following observations have been made: "S.4‑‑‑General Clauses Act (X of 1897), S.10‑‑Act which had to be done on a holiday, if done 'on following day would be quite within prescribed time limit‑‑‑Where period prescribed for performance of an act in a Court or office expired on holiday, that act would be considered within period if performed on following day on which office or Court re‑opened. 5.115‑‑‑Pre‑emption money, deposit of ‑‑‑Revisional jurisdiction, exercise of‑‑‑Court directed pre‑emptor to deposit pre‑emption money within thirty days, but the thirtieth day happened to be holiday and pre emptor deposited money on the day following holiday‑‑‑Courts below, thus, rightly concurred that pre‑emption money had been deposited by pre‑emptor within; time and such concurrent findings could not be interfered with in revisional jurisdiction of High Court." In the above case too, the pre‑emptor had to deposit the pre‑emption money within thirty days and the last date of which was falling on a day, which was a closed holiday, being Friday.

5. The nutshell of the above discussion is that the learned Court as well as the learned Appellate Court both have failed to properly adjudicate upon the matter within the legal requirements and, therefore, have arrived at an erroneous conclusion by dismissing the suit of the petitioners. The judgment and decrees of the Courts below are, therefore, set aside and. the case is remanded to the Trial Court with the directions to allow the petitioners to deposit the sale price of the property within reasonable time. The office is directed to immediately send the record of the case to the quarter concerned. On receipt of the record by the Trial Court, the learned trial Judge shall summon the parties and then shall proceed with the matter in accordance with law. No orders as to costs. H.B.T./75/P Revision accepted.