1995 PLP 1271 (CLC)

24 plaintiff to deposit sale price of the property (1) in every suit for pre-emption the court shall required the plaintiff to deposit in such court one third of the sale price of the property in cash such period as the court may fix: Provided that such period shall not extend beyond thirty days of he filing of the suit; Provided further that if no sale price is mentioned in the sale deed or ion the mutation the court shall require the deposit of one third of the probable value of the property. (2) Where the plaintiff fails to make a deposit under subsection (1) within the period fixed by the court his suit shall be dismissed. (3) Where the plaintiff withdraws the sum deposited by him under subsection(1) his suit hall be dismissed. (4) Every sum deposited under subsection (1) shall be available for the discharge of costs. (5) The probable value fixed under subsection (1) shall not affect the final determination of the period payable by the pre-emptor.

3. Learned counsel has further contended hat even otherwise discretion had not been judiciously exercised in favour of the respondents inasumuch as on 31-7-1993 they had made a statement that Zare-Soem had been deposited and they will produce receipts although Zare-Soem had not been deposited till then, therefore, conduct of the respondents being dishonest, discretionary relief could not have been granted to them.

4. I have considered the arguments addressed by the learned counsel for the petitioner and have gone through the record, the provisions of section 24 of the Punjab Pre‑emption Act and sections 148, 151, C.P.C. It is an established legal proposition that under section 148, C.P.C. a Court which has fixed the time for deposit of a particular amount has jurisdiction to extend the period for deposit thereof, even if the period originally fixed has since expired. Refer the following case: Sultan Ahmad, and others v. Khuda Bux and others (1986 SCMR 1005) wherein it has been held as under:‑‑ "

7. The main contention in support of these petitions urged by the learned counsel is that the second order prescribing time for making up deficiency of court‑fees and filing the statement of net profits, was passed without application of mind and ignorance of the orders passed earlier under which the time allowed had already expired. In other words the submission was that upon expiry of the period earlier fixed as the plaintiffs had failed to comply therewith the plaints were liable to be rejected under Order VII, rule 11 (d), C.P.C. It was further urged that the conduct of the plaintiffs in not complying with the first order by making up a proper application to the revenue authority for obtaining the statement of net profits, the plaintiffs were guilty of contumacy and negligence and accordingly were not entitled to the exercise of discretion in their favour extending the time. The power of the Court to pass a fresh order after the expiry of the period prescribed under the first order was also challenged. We have carefully considered these contentions and find no substance therein. The plaints were not liable to be rejected under Order VII, Rule 11(d), C.P.C. unless the Court had first made an order calling upon the plaintiffs to make up the deficiency in court‑fees by specifying the amount thereof. In this case no such order was passed directing the plaintiffs to pay a specific amount by way of deficiency in the court fees. In the circumstances the plaints originally filed by the plaintiff' were still before the Court on the date of the subsequent order and the Court was amply empowered to extend the time for doing the needful as earlier ordered or even pass a fresh order under section 148, C.P.C. can be exercised successively and even after the time under previous such order has expired. Therefore, nothing turns on the fact that there was a gap between the period covered by the two orders. So far as the justification for extension of time under section 149, C.P.C., the First Appellate Court applied its mind and came to the conclusion that the plaintiffs in the two suits were entitled to the grant of time in the circumstances of the case. This is a discretionary order and there is nothing to hold that the discretion was perversely exercised. The Courts below have acted upon the rule laid down by this Court in Siddique Khan v. Abdul Shakur Khan (PLD 1984 SC 289) and there is no legal infirmity in the impugned orders in these two petitions. Both petitions are accordingly dismissed." In the case in hand it is clear that the respondents had got prepared vouchers for deposit of "Zar‑e‑Soam" in the case in hand alongwith other four vouchers for deposit of "Zar‑e‑Soam" in connected four suits and had actually deposited "Zar‑e‑Soam" in those suits on 31‑7‑1993. It is only the suit in hand that "Zar‑e‑Soam" was deposited with a delay of one day. It appears to be a clear case of human error. Argument of the learned counsel for the petitioner to the effect that by virtue of provisions of section 24, the learned lower Court had no powers to extend after the period originally fixed had expired, is without any force. A perusal of section 24 of the Punjab Pre‑emption Act clearly shows that penalty is provided in those cases where a person "fails" to deposit the amount within the time fixed by the Court. The word used in this Act is not "shall stand dismissed" but is "shall be dismissed" meaning thereby that while exercising the powers under section 24 of the Punjab Pre‑emption Act the Court has to take decision as to whether the plaintiff has "failed" to deposit the "Zar‑e‑Soam" and it is thereafter that second part of the section is to be invoked for taking of decision as to whether the suit should or should not be dismissed. The proviso to section 24 authorises the Court to extend the period of deposit of "Zar‑e‑Soam" for maximum period of 30 days with effect from the filing of the suit. This proviso also clearly demonstrates that the Court e has the power to extend the period to deposit up to a period of 30 days. In the case in hand the deposit in question has been made within 30 days and it is one day's extension which falls within the maximum statutory limits, which has been granted by the learned trial Court, therefore, it cannot be said that while passing of the impugned order, learned Court had exceeded the exercise of jurisdiction. This case is fully covered by the law declared in the case of Muhammad Rafique v. Hassan Bakhsh and others (1993 CLC 622) wherein it has been held that the trial Court has power to extend the time up to the maximum limits of 30 days with effect from the date of filing of the suit, for a sufficient cause. Argument of the learned counsel for the petitioner that in view of the statement made by the respondents on 31‑7‑1993 that they have deposited the pre‑emption money, although factually it had not been deposited, hence are not entitled to any indulgence, is also misconceived. It appears that on 31‑7‑1993 the respondents were under a bona fide mistake about the factum of actual deposit of "Zar‑e‑Soam". In the case in hand as five vouchers had been prepared and admittedly in four cases deposit has been made, therefore, it appears that they were not sure on that date as to whether the amount in this case has been deposited or not? Therefore, they asked for time to produce the receipts. Plea taken in the application that they were under the impression that he amount can be deposited within a period of 30 days by force of the statute itself is also not without force. Punjab Pre‑emption Act, 1991 is a new law and it is for the first time that maximum period during which "Zar‑e‑Soam" is to be deposited has been fixed under the statute itself, therefore, there is a strong probability that fixation of the maximum period for deposit of "Zar‑e‑Soam" in the statute itself may have resulted in the late deposit of the "Zar‑e‑Soam" besides there being strong probability of human error as referred above. Even looked from another angle discretionary order passed by the learned lower Court is not liable to be interfered with. Deposit of "Zar‑e‑Soam" is meant for the purpose of, testing the bona fides of the pre‑emptor and as the amount stands deposited, it cannot be said that any serious prejudice shall be caused to the petitioner in case of grant of one day's extension in discretionary exercise of jurisdiction. Refer case of Mehdi Khan v. Faqir Muhammad and 4 others (PLJ 1980 Lahore 23).

5. All the procedures are meant for advancement of justice and not to entrap the litigant in a blind corner. Deposit of "Zar‑s‑Soam" being a part of the procedure during the trial of the suit, late deposit thereof cannot always be used as a trap for non‑suiting a pre‑emptor consequently, a discretionary order passed by the learned lower Court is not liable to be interfered with in exercise of the revision jurisdiction of this Court.

6. In view of the above, I see no force in this civil revision, hence the same is dismissed in limine. H.BT./M‑1969/ Revision dismissed;