1988 PLP 1193 (SCMR)

SAAR SAOOD JAN, J.‑‑This petition for special leave to appeal is directed against the order of remand made by the Lahore High Court, Multan Bench, and it arises out of a pre‑emption suit filed by the petitioner.

2. The suit was instituted on 27‑5‑1978. On 28‑5‑1978, the trial Court directed the petitioner to deposit the zar‑e‑punjam in the sum of Rs.45,400 before 18‑7‑1978. Two days before expiry of this date, that is, on 16‑7‑1978, the petitioner moved an application praying that instead of depositing zar‑e‑punjam in cash he should be permitted to furnish security. This application was rejected and he was allowed time till 30‑10‑1978 to make the deposit. The petitioner duly complied with this order and deposited the zar‑e‑punjam within the extended time. It may be mentioned that the respondents had not been served by the date on which the application was rejected and extension in time for making the deposit was allowed to the petitioner.

3. The suit was resisted by the respondents. In the written statement they inter alia pleaded that as the zar‑e‑punjam had not been deposited within the date originally fixed by the trial Court, the suit was liable to be dismissed. However, no issue incorporating this plea was framed by the trial Court. Ultimately, the suit was decreed. The respondent filed an appeal before the District Judge. In the appeal, they once again contended that the suit of the petitioner was liable to be dismissed for his failure to deposit the zar‑e‑punjam within the period first specified by the trial Court. The learned District Judge rejected this contention and dismissed the appeal also. The respondents then filed a second appeal in the High Court. Before the High Court, the same contention was reiterated. A learned Single Judge accepted the appeal, set aside the judgments and decree of the subordinate Courts and remitted the case to the learned trial Judge with the direction that he should decide afresh after hearing both the parties, the question whether the petitioner was or was not entitled to the grant of extension in time for making the deposit. The petitioner seeks leave to appeal from this order of remand.

4. In support of this petition it is contended that the petitioner had applied for variation in the order of deposit prior to the expiry of the period granted for that purpose and at a time when the respondents had not yet been served. There was thus no occasion for granting a hearing to the respondents at the time when the trial Judge made his order on the application; further, there was requirement of law that the learned trial Court should have kept the application pending till the respondents had been served. In the circumstances, the learned Single Judge erred in setting aside the judgments and decree of the subordinate Courts and making an order of remand.

5. Section 22(4), The Punjab Pre‑emption Act, runs as follows:‑ "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 subsection (1) or (2), his plaint shall be rejected or his appeal dismissed, as the case may be." It will be noticed that this subsection does empower a civil Court to extend the time for depositing the zar‑e‑punjam. The question for consideration is whether this power can be exercised without notice to the defendant at a stage when he has not been served. We are informed that there is no decision of this Court dealing with this question and it is one of first impression. We would, therefore, grant leave to appeal to consider this question. Security for costs in the sum of Rs.5,

000. The appeal may be made ready for hearing on the present record with permission to the parties to file additional documents, if necessary. During the pendency of the appeal, the operation of the order of the learned Single Judge will remain suspended. M.I./B‑46/S Leave granted.