P L D 1960 (W (PLP)

SHABIR AHMAD, J.‑

Azhar Ali Shah brought a suit for posses sion of a piece of land by pre‑emption. There were nine defendants to the suit which was decreed on the 10th of June 1955. When the decree‑holder took out execution, objections were raised on behalf of those of the defendants who were vendees of the land that the decree was a nullity, because about a month before the date it was passed, Machhia, one of the vendees, had died and his legal representatives were not brought on the record in his place. By his order dated the 17th of April 1956, Sheikh Nur Muhammad, the then Senior Civil Judge, Jhang, upheld the objection of the vendees of the land and dismissed the execution applica tion. Against this order Azhar Ali Shah, the decree‑holder, presented an appeal (Execution First Appeal No. 129 of 1956). This appeal was heard to Justice Abdul Aziz Khan who by his order dated the 26th of June 1958, dismissed it and against his judgment the present appeal under Clause 10 of the Letters Patent of this Court has been presented by the decree‑holder.

2. Justice Abdul Aziz Khan did not dispose of the appeal on merits but upheld a preliminary objection raised on behalf of the vendees, who were respondents before him as they are to this appeal. The preliminary objection was to the effect that the appeal, which was presented on the 1st of October 1956, could not proceed because the decree‑holder had, on the 2nd of October 1956, i.e., one day after he presented the appeal to this Court, withdrawn the money he had deposited in obedience to the decree of the Court, including one‑fifth of the sale price which had been deposited soon after the institution of the suit in obedience to the orders of the trial Court under section 22 of the Punjab Pre emption Act. These only question for determination, therefore, is whether the learned Judge in Chambers was right in dismissing the appeal on the ground on which he dismissed it.

3. That the money was withdrawn by the decree‑holder on the date mentioned in the judgment under appeal was not denied by the learned counsel for the appellant who urged that the learned Judge in Chambers was wrong in holding that this with drawal of money attracted the provisions of section 22 (5) of the Punjab Pre‑emption Act. The reply of the learned counsel for the respondents was that the judgment of the learned Judge in Chambers was unassailable, because the provision of law relied upon by him for his judgment had application to the case and the judgment appealed against should not be disturbed.

4. Section 22 of the Punjab Pre‑emption Act is in the fol lowing terms :‑‑ "22. (1) In every suit for pre‑emption the Court shall at, or at any time before, the settlement of issues require the plaintiff to deposit in Court such sum as does not, in the opinion of the Court, exceed one‑fifth of the probable value of the land or property, or require the plaintiff to give security to the satisfaction of the Court for the payment, if required of a sum not exceeding such probable value within such time as the Court may fix in such order. (2) In any appeal the Appellate Court may at any time exer cise the powers conferred on a Court under subsection (1). (3) Every sum deposited or secured under subsection (1) or (2) shall be available for the discharge of costs. (4) If the plaintiff fails within the time fixed by the Court or within such further time as the Court may allow to make the deposit or furnish the security mentioned in subsections (1) or (2), his plaint shall be rejected or his appeal dismissed as the case may be. (5) (a) If any sum so deposited is withdrawn by the plaintiff, the suit or appeal shall be dismissed. (b) If any security so furnished for any cause becomes void or insufficient, the Court shall order the plaintiff to furnish fresh security or to increase the security, as the case may be, within a time to be fixed by the Court, and if the plaintiff fails to comply with such order, the suit or appeal shall be dismissed. (6) estimate of the probable value made for the purpose of subsection (1) shall not affect any decision subsequently come to as to what is the market value of the land or property." It will be noticed that clause (a) of subsection (5) reproduced above talks of a suit or an appeal which it enjoins must be dismissed if the money deposited under the orders of the Court passed under section 22 of the Punjab Pre‑emption Act is withdrawn without the permission of the Court. The learned Judge in Chambers has not in his judgment adverted to that point but the learned counsel for the respondents urged that the word "appeal" occur ring in clause (a) of subsection (5) of section 22 of the Punjab Pre‑emption Act would mean any appeal including an appeal in execution. I find it difficult to accept this contention, because it does violence to the clear language of section 22 of the Punjab Pre‑emption Act. The context in which the word "Appeal" occurs in clause (a) of subsection (5) of section 22 of the Punjab Pre emption Act makes it clear that the appeal contemplated is an appeal in the suit and that too only an appeal by the plaintiff who seeks to get possession in exercise of a right of pre‑emption. If the legislature had intended that even appeals against orders passed in execution were liable to be dismissed if the decree‑holder had before the appeal in execution had been disposed of, withdrawn the money which had been deposited under section 22 of the Punjab Pre‑emption Act, one would have expected to find this clearly mentioned in the section. Of such mention there is a complete absence and I am clear in my mind that it is not per missible to extend the meaning of the word "appeal" occurring in subsection (5) of section 22 of the Pre‑emption Act, especially because by doing that one would be doing‑violence to the plain language of the statute. This kind of violence to the plain language of a statute is prohibited by all canons of interpretation, because Courts were to have the power to extend the meaning of the words used in a statute, they will be traveling beyond their function which is to interpret law and will be launching on what is not their function, i.e., amending or making law. I do not intend to lay down that under no circumstances can a Court hold that an expression used by the legislature has a meaning different from that which the language used would indicate, but before such an interpretation is placed on the words used the intention of the law‑maker must be clear on the point. The powers of Courts to B gather the intention of the law‑maker from extraneous matters can be exercised only if the language used by the law‑maker is ambiguous. If, however, the language used is clear, the Courts have to presume that the law‑maker had expressed itself cogently and clearly by the words it had used in the law it has made.

5. The learned Judge in Chambers did not put his own interpretation on the words used in clause (a) of subsection (5) of section 22 of the Punjab Pre‑emption Act and contented himself with following two decisions which were cited before him. The first of these decisions was Prem Singh v. Lakha Singh (A I R 1929 Lah. 387) in which a learned Single Judge of the Lahore High Court dismissed an appeal because the money which had been ordered to be deposited had been withdrawn before the appeal was disposed of. This decision has no application to the facts of the present case for more reasons than one, one of them being that the appeal dealt with in that case was an appeal against the decree and not an appeal against an order passed in execution of the decree. The second case relied upon by the learned Judge in Chambers was the decision of a learned Single Judge of the Lahore High Court reported as Pars Ram v. Dalpat Rai (54 I C 268). Here again, the case related to an appeal against a decree and not to an appeal against an order passed in execution of a decree. The two decisions relied upon by the learned Judge in Chambers were clearly inapplicable to the facts of the present case and do not support the contention raised by the learned counsel for the respondents. I see no escape from the contention raised by the learned counsel for the appellant that clause (a) of subsection (5) of section 22 of the Punjab Pre‑emption Act cannot apply to an appeal against an order passed in execution just as it cannot apply to the execution proceedings themselves and hold accordingly.

6. In view of what I have said above I would accept the appeal and set aside the judgment of Justice Abdul Aziz Khan. The learned counsel for the respondents contended that for some reasons other than those mentioned by the learned Judge in Chambers, the decision appealed against was justified. As I have already mentioned, the learned Judge in Chambers upheld the preliminary objection raised on behalf of the respondents and did not care to go into the merits of the appeal before him. The points raised by the learned Advocate for the respondents relate to facts which might require production of evidence and I would, therefore, leave them to be determined by the learned Judge in Chambers. The case is sent back to the learned Judge in Chambers for disposal according to law. The appellant shall have his costs of this appeal from the respondents. B. Z. KAIKAUS, J.

I agree. K.B.A. Appeal accepted.