1999SCMR1350 (PLP)

MUHAMMAD BASHIR JEHANGIRI, J.

This petition for leave to appeal arises out of a suit for possession by pre--emption filed on 26-10-1995 on payment of Rs.1,98,350.

2. The learned trial Judge directed the petitioner to deposit a sum of Rs.4,46,667 till 28-11-1995. An application was made on 22-1-1995 alongwith a challan to deposit a sum of Rs.1,00,000 which was allowed by the Court. The petitioner then moved an application under section 149 of the C.P.C. seeking extension of time for six months to deposit the balance of the pre-emption money. But the Court directed him to deposit the amount till the next date of hearing i.e. 4-1-1996. The petitioner, however, failed to deposit the remaining amount till the target date and instead filed another application under section 149 of the C.P.C. It appears that the respondents moved the Court that as the order of the Court directing the deposit of pre-emption money was not complied with, consequently the plaint was liable to be rejected under section 24(2) of the Punjab Pre-emption Act (IX of 1991) (hereinafter called as the Act). The petitioner contested the application. In the meantime, it appears, the petitioner filed an application under section 149 of the C.P.C. for the extension of period of six months, to arrange Rs.2,06,

667. The respondents obviously opposed this plea and sought the dismissal of the application alongwith the suit of the petitioner.

3. The learned trial Judge relying on: (i) Awal Noor v. District Judge, Karak (1992 SCMR 746; (ii) Muhammad Ismail v. Jamilur Rehman (1995 MLD 1011) quoted in the impugned order the following observations from the case of Awal Noor (supra): "No amount could be ordered to be deposited beyond thirty days-- Direction for depositing amount after 30 days being not lawful was set aside." The learned trial Judge, therefore, dismissed the suit under section 24(2) of the Act.

4. That decision of the trial Court was challenged in R.F.A. No.297 of 1996 which was dismissed on merits by a learned Division Bench of Lahore High Court, Lahore, on 19-6-1996. Later on, the petitioner filed another appeal against the judgment and the decree of the trial Court before the learned Additional District Judge, Lahore, vide order, dated 4-3-1997 which too was dismissed. The petitioner then filed a revision petition before the High Court against the order of the learned Additional District Judge dismissing the appeal of the petitioner as not maintainable. The revision petition filed by Mian Asif Islam petitioner against the order of the learned Additional District Judge was dismissed on 8-7-1997 by a learned Single Judge of the Lahore High Court. The petitioner now seeks leave to appeal from this order.

5. Rao Tariq Chaudhry, learned Advocate Supreme Court, appearing on behalf of the petitioner, contended that the disposal of incompetent appeal on merits by the learned Division Bench of the High Court was a void order and without jurisdiction and, therefore, it should have been ignored as "having no legal efficacy" and, therefore, the judgment of the learned Division Bench was a nullity in the eye of law.

6. This contention of the learned counsel for the petitioner is absolutely devoid of substance. The petitioner had himself chosen the forum of the High Court and had filed the R.F.A., which was dismissed on merits. Even if the contention raised by the learned counsel for the petitioner that the learned Additional District Judge was seized of the jurisdiction holds water, still the disposal of the R.F.A. by the High Court was not without lawful authority.

7. Be that as it may, it is not denied that the application for extension of time for six months for deposit of the balance of the pre-emption money ordered by the Court was governed by section 24(2) of the Act. A bare reading of section 24(2) ibid would reveal that the trial Court is not vested with any discretion to grant more than thirty days' time to deposit 'Zar-e-Soem'.

8. In arriving at this conclusion we are, fortified by the dictum of this Court in the case of Awal Noor v. District Judge, Karak (1992 SCMR 746). In this precedent, the first proviso to section 24 of the N.-W.FP. Pre-emption Act (X of 1987) which is in pari materia to section 24(2) of the Punjab Pre-emption Act, 1991 was interpreted in the 'following paragraphs:-- "With respect the distinction made by the High Court for extension of time

one at the behest of the plaintiff and the other when the Court on its own, considers appropriate, is not supported by the language of the law. The first proviso bars the extension of time beyond thirty days by a positive command in the negative. Therefore, if the period cannot be extended on the asking of the plaintiff it cannot be extended even suo motu. The question of act of God as a reason for extension may have to be examined in another appropriate case. The second proviso also is restrictive in nature. Those cases in which the sale price is mentioned neither in the sale-deed nor in the mutation and also in those cases as in the present one in which there was at the relevant time neither a sale-deed nor a mutation, the Court has to rely on its own judgment after an enquiry of preliminary /summary nature seeking material from the plaintiff and if per chance the defendant has appeared from him also. The determination of the value of the property in these circumstances, of course, has to be probable. Thus, the intention of the newly-enacted law in this behalf is clear that the amount has to be deposited up to 30th day of the filing of the suit and not beyond that and the amount has to be determined through a process of approximation resulting in the probable value if there is nothing mentioned in the sale deed or the mutation. In the light of the foregoing discussion no amount could be ordered to be deposited beyond 30 days. Hence the direction for further deposit in this case was not lawful. Accordingly, the said order as well as the impugned judgments upholding the same are set aside. The trial Court shall now proceed beyond the stage of the deposit of amount under section 24."

9. We are inclined to reiterate that no discretion is vested in the trial Court under section 24(2) of the Act to grant extension of time to deposit 'Zar-e-Soem' beyond the initial period of 30 days. In the case in hand even if the appeal before the learned Additional District Judge or before the High Court was competent, still when there was no discretion vested in them, they were not competent to have extended the time for deposit of 'Zar-e-Soem' beyond the initial period aforesaid.

10. We are, therefore, of the considered view that the impugned judgment of the learned Single Judge in the High Court does not suffer from any infirmity of the kind warranting our interference under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973.

11. The petition for leave to appeal is accordingly dismissed. H.B.T./A-167/S Petition dismissed.