1990 PLP 1272 (MLD)

The learned counsel for the respondent, Kh. Shahad Ahmad submitted that the learned Judge in the High Court has rightly analysed the facts of the case and particularly the fact that the whole of 26th of April being available to the plaintiff; the Court itself was responsible for interrupting this period. The learned counsel contended that the act of the Court itself constituted a valid reason why extension should have been granted. He submitted that although the reasons for granting extension are not recorded in the order of the trial Court but the justification could be gathered from the record, as has been rightly done by the High Court. The learned counsel also contended that recording of reasons was not a requirement of the relevant provision of law. Kh. Shahad Ahmad took the position that no right had accrued to the defendant when the trial Court passed the order on 26th April because the time was extended before original time had expired. According to him a right can only be said to have accrued to the defendant if no extension had been granted by the Court within time. Kh. Shahad Ahmad relied on the following cases:‑ (1) 'Muhammad Hayat v. Ahmad Yar' P L D 1986 Lah. 270. (2) `H.Raza Khan v. Awal Khan etc.' 1983 C L C 2163. (3) `Khuda Bakhsh v. Sultan Muhammad and another' 1985 S C M R 192. (4) `Inayatullah and others v. Mst. Khurshid Akhtar' 1986 S C M 8,687. (5) 'Malik Barkat Ali Dogar v. Muhammad Shafi and others' P L D 1990 S C

60. In our view the learned Judge in the High Court was right in holding that the whole of 26th of April was available to the plaintiff `or filing the security bond. The order of the trial Court did not require the plaintiff to file the security bond before the next date of hearing but the order said that he was supposed to do so uptil or on the next date. Although, as held by the learned Judge in the High Court, the order is clear but in our view if there is any vagueness or inexactness in the order the plaintiff cannot be penalised for it. It is the duty of t the Courts to record orders in clear terms and in cases of ambiguity it is not proper to penalise a party. Since the whole of 26th of April was available to the plaintiff for filing of the security bond the ordinary course for the Court would have been to pass no order and adjourn the case to the next day or any other appropriate date and if on that subsequent date it was found that the plaintiff had not filed the security on 26th April the plaint should have been rejected. But as it is, the Court adopted a different course. The time when the order was recorded on 26th April is not known and the possibility cannot be ruled out that the case might have been called in the morning. In any case there was still time for filing of the security bond on that day. It is therefore, clear that the Court could not have passed order for rejection of the plaint when the case was called on for hearing. Once we reach the conclusion that the Court could not reject the plaint when the case was called on 26th April it follows that the Court had to fix another date when it could be seen whether the requisite bond had been filed on 26th April but the course adopted by the Court was that while fixing another date period was also extended. In view of this extension it was no longer necessary for the plaintiff to file the security bond on that date. In these circumstances our view is that the learned Judge of the High Court was right in observing that if order granting extension is now set aside it would amount to penalising the plaintiff for an act of the Court. Since the default in riling the bond on 20th April occurred, at least, partly due to the extension granted by the Court it constitutes sufficient reason for granting extension. We may also observe that after the case was remanded by the High Court no material was brought on record in order to show some justification for grant of extension existed but the reason which weighed with the High Court was available on the record and we are satisfied that the High Court acted in the interests of justice while taking note of the circumstances favouring the pre‑ emptor in the case. The order passed by the High Court does not run counter to any of the principles‑ enunciated in the case‑law relied upon by Mr. Ghulam Mustafa Mughal, counsel for the appellant. The rule laid down in this Court's judgment reported as `Faqir Muhammad v. Mutwali' P L D 1982 S C (AJ&K) 55 is that period for furnishing security could only be extended for good or sufficient reasons. The facts of the case were that the trial Court ordered the plaintiff to deposit 1/5th of the sale consideration in cash or in the alternative to file a security bond to the extent of sale price which was Rs. 1,

500. The plaintiff filed a security bond only to the extent of 1/5th of the sale consideration and not for Rs. 1,500 as had been ordered by the Court. At the time of final arguments the rejection of the plaint was claimed on the ground that the plaintiff had failed to file the required security bond to the extent of full sale price. The objection prevailed and the plaint was rejected. An appeal taken to the District Judge also failed but the High Court accepted the second appeal filed by the pre‑emptor by holding that the pre‑emptor had not been guilty of wilful default because he was not represented by any counsel and a mistake was possible due to the very nature of the order wherein alternative directions had been given. The learned Judge of the High Court was of the view that the order had in a sense been complied with because the security bond though deficient, was filed within the stipulated period, therefore, default could be interpreted as an error. Feeling aggrieved the defendant in the case brought an appeal, through leave of the Court, which was accepted and order of the High Court was vacated. The judgment of this Court laid down that ‑‑ (a) the provisions of subsection (4) of section 21 of the Right of Prior Purchase Act are mandatory in nature and a Court is bound to reject the plaint if there is non‑compliance of the direction for furnishing the security; and (b) power of the Court to extend the period for furnishing security can only be done for good and sufficient reasons following the general principle that a Court should be slow in extending the period. It is clear that this Court has expressed the view in the aforementioned case that there has to be some cogent reasons for granting extension under reference. Since in the circumstances of the present case we have formed the view that the very fact that default had been occasioned due to an act of the Court constitutes a valid reason for extension of time, we think that the High Court did not in any way fail to follow the ratio of that case. The other case cited by the learned counsel for the appellant is `Hadayat Ullah v. Murad Ali' P L D 1972 S C

69. His reliance is on the observations of the Court that there was no doubt that the power to extend the time for furnishing security was a discretionary power but, like all other judicial discretions, it must be exercised upon sound judicial principles. We say so with great respect that this is the correct rule on the subject. However the facts of the case and the decision given by the Supreme Court of Pakistan lend support to the view which we have taken in the case. The facts of the precedent case were that a learned Civil Judge passed an order in a pre‑emption suit that `zar‑i-panjum', i.e. 1/5th of the pre-emption money, should be deposited by the 6th of January 1968. On the 5th of December, 1967 the pre‑emptor applied to the learned civil Judge for permission to furnish security instead of depositing the amount in cash, as directed by the Court. On the 6th of December, instead of disposing of this application the Civil Judge directed that it should come up for hearing alongwith the pre‑emption suit on 6th of January, 1968. On that date the Court first took up the application and rejected the same. Thereafter the Court suo motu extended the time for making the deposit to 6th of February, 1908. This order was complied with but on the 5th of March, 1968 the vendee applied for rejection of the plaint on the ground that the deposit of the `zar‑i‑panjum' was not made by the 6th of January, 1968, the date originally fixed by the Court, and, therefore, the suit was no longer maintainable. The learned Civil Judge rejected this application but upon a revision taken to the High Court this order was set aside as the High Court was of the view that in the absence of any prayer or application for extension of time the Court had no jurisdiction to extend the time on its own. The High Court also held that extension of time could only be granted where there was sufficient cause for the purpose, and that plea for sufficient cause must first be raised and then put to proof. The learned Judge in the High Court was of "the opinion that there was no cogent ground upon which the Court could have extended the time suo motu or otherwise. This order of the Court was set aside by the Supreme Court of Pakistan by holding that the Court had made it practically impossible for the appellant to comply with its original order by adjourning the application for furnishing security to the Pith of January, 1968 and that this constituted a very good and substantial reason for the extension of time. Since in the present case the trial Court contributed to the default, the principle laid down in the precedent case is applicable with full force. In `Mirza Ghulam Hussain v. Muhammad Bashir' 1981 C L C 1689 the pre‑emptor who had been called upon to deposit `zar‑i‑panjum' submitted an application for extension of time at the eleventh hour which was dismissed. Having this default in depositing `zar‑i‑panjum' it was pleaded by the pre‑emptor that it was an act of the Court for which he had not been able to do the needful. This plea was rejected and the High Court also affirmed the orders of the learned Civil Judge as well as the learned District Judge. As is apparent from the facts of the ‑case there was no act of the Court which was responsible, wholly or partly, for the default and the plea was rightly rejected. Another case referred to by Mr. Ghulam Mustafa Mughal is `Ram Rattan v. Rajaram' A I R 1923 Lah.

643. In this case a Division Bench of the Lahore High Court held that the trial Court acted illegally in rejecting the plaint as a consequence of a default in deposit of `zar‑i‑panjum' under the impression that no order could be passed where default had been committed. The Lahore High Court expressed the view that the phrase "his plaint shall be rejected" read with the provision as to an extension of time meant that the plaint would be rejected if the Court did not deem it proper to allow further time. This judgment does not help the learned counsel for the appellant. The last case relied upon on behalf of the appellant is "Niaz Muhammad Khan v. Mian Fazal Raqib" P L D 1974 S C 134 wherein it is laid down that since non‑compliance with the order for furnishing security in pre‑emption cases entails dismissal of the suit the provision is mandatory. This is the same view as has been expressed by this Court in Faqir Muhammad's case. Before parting with this judgment we may also take note of the fact that although this Court has in Faqir Muhammad's case laid down the law that extension of time can only be granted for sufficient cause, the Supreme Court of Pakistan took a different view in "Inayat Ullah v. Khurshid Akhtar" 1986 S C M R 687 which has been cited by Kh. Shahad Ahmad learned counsel for the respondent. In that case the Supreme Court of Pakistan saw no merit in the submission that extension of time in favour of the pre‑emptor could not be granted automatically and could be ordered if sufficient and reasonable cause was shown.' Finding no force in the appeal, it is dismissed with no order as to costs. A.A./273/S.C.A. Appeal dismissed.