2006 PLP 1579 (CLC)

MUHAMMAD MUZAMMAL KHAN, J.

Instant revision petition assailed the judgments/decrees dated 3-9-2005 and 31-10-2005 passed by the learned Civil Judge and the learned Additional District Judge, whereby on account of non-deposit of "Zar-e-Soam", petitioner's suit and appeal were dismissed, respectively.

2. Precisely, relevant facts are that petitioner filed a suit for possession through pre-emption against the sale in favour of the respondent through Mutation No.7809 dated 25-11-2004. She pleaded knowledge of sale on 27-11-2004 at 12-00 noon through Ashiq Hussain son of Chiragh Alam in presence of Ghulam Hussain and Haji Muhammad Din, in her house when she instantly exclaimed her intention of pre-empting the sale being equipped with superior pre-emptive right qua the respondent. Petitioner pleaded that she being a co-sharer was "Shafi Sharik", whereas respondent was not equipped with any such qualification. She further asserted that in fact the suit-land was sold for an amount of Rs.4,10,000 but in order to defeat her pre-emptive right, price was inflated to Rs.18,00,000 and the sale was affected through a guarded secret.

3. Petitioner filed her suit on 8-12-2004 and the learned trial Judge ordered for its registration, issuance of summons under registered cover acknowledgment due for 14-1-2005 and ordered for deposit of Rs.6,00,000 as "Zar-e-Soam" within 30 days. Petitioner deposited the 1/3rd amount of the sale price on 11-1-2005.

4. Respondent being defendant in the suit, contested the same by filing his written statement wherein he inter alia, pleaded that 1/3rd amount of the sale price has not been deposited according to the order dated 18-12-2004 and that the petitioner remained associated with the sale and did not perform "Talbs" in terms of section 13 of the Punjab Pre-emption Act, 1991.

5. Petitioner on 15-6-2005 filed an application under section 148, C.P.C. for extension of time for deposit of "Zar-e-Soam", on the grounds that she being an old lady misunderstood the order dated 8-12-2004 and under the misconception that she could deposit the amount till 14-1-2005, deposited the same on 11-1-2005. This application was contested by the respondent by filing his written reply and the learned Civil Judge, cognizant of the suit, dismissed petitioner's application for extension of time besides dismissing his suit vide judgment/decree dated 3-9-2005.

6. Petitioner aggrieved of dismissal of her suit, filed an appeal before the learned Additional District Judge but remained unsuccessful as the same was dismissed on 31-10-2005. She thereafter filed instant revision petition and in response to notice by this Court, respondent has appeared and was represented through his counsel.

7. I have heard the learned counsel for the parties and have examined the record, appended herewith. Undisputedly, time for deposit of 1/3rd pre-emption money has been fixed by the statute itself viz section 24 of the Punjab Pre-emption Act, 1991 which reads as under:- "

24. Plaintiff to deposit sale price of the property:

(1) In every suit for pre-emption, the Court shall require the plaintiff to deposit in such Court one-third of the sale price of the property in cash within such period as the Court may fix: Provided that such period shall not extend beyond thirty days of the filing of the suit: Provided further that if no sale price is mentioned in the sale-deed or in the mutation, or the price so mentioned appears to be inflated, the Court ,shall require 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, or withdraws the sum so deposited; by him, his suit shall be dismissed. (3) Every sum deposited under subsection (1) shall be available for the discharge of costs. (4) The probable value fixed under subsection (1) shall not affect the final determination of the price payable by the pre-emptor." (Underling is mine, to highlight importance/spirit of the law).

8. According to the above-reproduced provision of law it was an obligation of the Court to require the plaintiff to deposit one-third amount of the sale price of the property in cash within such period as the Court may fix, but the same was not to be extended beyond 30 days from the date of filing of the suit. Petitioner had filed her suit on 8-12-2004 and on the same day the learned trial Judge directed to deposit one-third of the sale price mentioned in the mutation under pre-emption i.e. Rs.6,00,000 within 30 days which were to lapse on 7-1-2005. Petitioner deposited the required amount after lapse of time fixed by the trial Court i.e. on 11-1-2005. Question, which hinged for determination is, as to whether the trial Court was competent to extend time fixed by the statute itself. Abrupt answer is "No" because law regarding extension of time is firmly settled by this time to the effect that the same can only be enlarged by the Court, had the same been fixed by it. Section 24 of the Act of 1991 is silent about extension of time frame given by it, but language of section 148 C.P.C. is supportive of this proposition which reads as under:-- "Section

148. Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time enlarge such period, even though the period originally fixed or granted may have expired."

9. In enacting Punjab Pre-emption Act, 1991 on becoming the old pre-emption law unworkable in its entirety from 31-7-1986, the target date given by the Honourable Shariat Appellate Bench of the Supreme Court in Said Kamal Shah's case PLD 1986 SC 360 legislature attempted to bring existing law of pre-emption in conformity with the Injunctions of Islam,' as set out in the Holy Qur'an and Sunnah. This law does not aim at to exclude, oust or discourage real pre-emptor from filing suit because it acknowledged the pre-emptor even with equal superior right qua the vendee, to share the sold property equally, as per its section

20. Similarly, philosophy and purpose of requiring deposit of 1/3rd of sale price within specified period, appears to he, to test bona fides of the pre-emptor and to discourage only fake and frivolous litigants. Extension of time fixed by the legislature would not only negate the intent/purpose of the lawmakers but will also invite complications and expansion of litigation. Above all, if it is held, for the sake of assumption that extension of time of even a day, on what ever ground may be, is permissible then there will no end of it because if a Court can grant extension of one day then it can also grant such extension of even a year and so on, so forth.

10. My own earlier view in the case of Mst. Iqbal Bibi v. Allah Yar and 2 others 2004 YLR 1279 was that one-third of the sale price of the property was to be deposited in cash within the period fixed by the Court which could be extended to the maximum period of 30 days from the date of filing of the suit. This Court in another case of Muhammad Ismaeel v. Jameel-ur-Rehman and 6 others 1995 MLD 1011, relying on the judgment in the case of Awal Noor v. District Judge Karak and 8 others 1992 SCMR 746, concurred to the same view of time for deposit of one-third of pre-emption money, could not be extended by the Court beyond the period of 30 days from filing of the suit.

11. Reliance by the learned counsel for the petitioner on the judgments in the cases of Jamshaid Ali and 2 others v. Ghulam Hussain 1995 CLC 957 and Muhammad Ilyas and 4 others v. Munshi Khan 2003 CLC 1815 was misplaced, as both these judgments proceeded on altogether different facts-. In both these precedent. cases, pre-emptor did not deposit one-third of the sale price within the prescribed time, as no order to this effect was passed by the trial Court, on the first day of presentation of the plaint, whereas in the case in hand, there was no such lapse on the part of the trial Court who had required the petitioner to deposit the one-third amount of the sale price, with all clarity. Even otherwise ground of the petitioner of being old lady, is of no help to her because the order dated 8-12-2004 was passed in presence of her counsel who was not alleged to have misunderstood the same. Scan of record and impugned order revealed that the lis was correctly concluded by the two Courts below without committing any illegality/irregularity amenable to revisional jurisdiction of this Court.

12. For the reasons noted above, no case for interference in the revisional jurisdiction in terms of section 115, C.P.C. was made out; consequently, instant petition being devoid of any merit, is dismissed with no order as to costs. S.A.K./K-43/L Revision dismissed.