Sayed Zahid Hussain. J MUHAMMAD ILYAS and 4 others vs MUNSHI KHAN

' In order to pre-empt the sale of the suit land, Munshi Khan respondent instituted a suit on 20-3- 1999. The Court official was directed.' by the Court to put up the same on 22-3-1999 after due scrutiny. When it came, up before the Court on 22-3-1999, it was ordered to be registered and the defendants- were summoned for 21-4,1999. On the-same date, the plaintiff/pre-emptor was directed to make deposit of Zar-e-Soim (1/3rd) within one month. On 21-4-1999, when the suit came up before the Court the same was dismissed due to non-deposit of the Zar-e-Soim. The same, day an application for review of the order of dismissal and far restoration of the suit, was filed by the plaintiff/pre-emptor, that on 20-4-1999, the application submitted by him for permission to deposit Zar-e-Soim had been granted by the Court which was to be deposited this morning (21-4-1999), but the suit was dismissed without considering his request. The defendants/vendees were called upon by the Court in the said application. It was contested by them and eventually the application was dismissed by the learned trial Court vide order, dated 8- 5-2000. An appeal was preferred by the plaintiff/pre-emptor against dismissal of the suit as also of his review' petition. The said appeal was accepted by the learned Additional District Judge, Kasur on 14-11-2000, whereagainst this revision petition has been filed. The learned counsel for the parties are atone that Civil Revision No.2782 of 2000 has also common features and in view of the identity of the issue involved can be disposed of by a common judgment.

2. Referring to section 24 of the Punjab Pre-emption Act, 1991, it has been contended by the learned counsel for the petitioners that the deposit of the Zare-e-Soim within 30 days is a statutory requirement which cannot be waived or overrun and that even the Court could not extend the said period. According to him neither the review petition was competent before the trial Court nor the Appellate Court could pass such a judgment. Reference has been made by him to Awal Noor v.

District Judge, Karak and 8 others 1992 SCMR 746 Muhammad Ismail v. Jamil ur Rehman and 6 others 1.995 MLD 1011, Jamshaid Ail and 2 others v. Ghulam Hassan 1995 CLC 957 and Riaz Ahmed v.

Additional District Judge, 'Sargodha, and another 1999 YLR 336, to support his contentions.

' The learned counsel for the respondent-plaintiff/pre-emptor, however, supports the view taken by the appellant Court and contends that suit could not have been dismissed on 21-4-1999 when the said full day was available to the plaintiff/pre-emptor for compliance of Court's order and the power of review was available to the trial Court under the Civil Procedure Code. It is contended that while computing the period the first day was to be excluded and the last day could be availed for making deposit. Reference has been made by him to Afajuddin Molla and others v. Abdur Rahman Sk. And another PLD 1959 Dacca 454, Muhammad Ramjan Sawdagar v. A.H.M. Fazlul Haq PLD 1963 Dacca 987, Holy Trinity Church Trust, Lahore v. Ansari Brothers PLD 1963 (W.P.) Lah. 489, Muhammad Hayat v. Ahmed Yar PLD 1986 Lah 270, Allah Ditta and another v. Saeed Ahmad 1991 MLD 581 and Ghulam Muhammad v. Ghulam Hussain 2001 YLR 2343.

3. Respective contention, material on the record and the precedents cited by the learned counsel for the parties have been considered. Section 24 of the Act casts a duty upon the Court when a suit is brought before it, "to 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." Proviso to subsection (1) restricts the said period by laying down that "such period shall not extend beyond thirty days of the filing of suit." The language of the statutory provision undoubtedly is quite clear. Failure to make such a deposit contemplated by it results in dismissal of the suit as per subsection (2) thereof. However, what happened in the present case was that no order was passed by the Court on the first day of presentation of the plaint on 20-3-1999 and the order was passed on 22-3-1999 directing the plaintiff/pre-emptor to make deposit of Zar-eSoim within one month. If the Court failed to adhere to and keep in view strictly the relevant provision of law and the party concerned was misled by its order he is not to be made to suffer for such an act or omission on the part of the Court. Reference in this context may be made to Jamshaid Ali and 2 others v. Ghulam Hassan 1995 CLC 957, Riaz Ahmad v. Additional District Judge, Sargodha and another 1999 YLR 336 and a judgment of the Full Bench of this Court in Mian Muhammad Lutfi v. Mian Muhammad Talha Adil NLR 2000 Civil 422, wherein on considering extensively the case-law on the subject it was held that a plaintiff/pre- emptor could not be penalized or made to suffer for any wrong order passed by the Court. In that case instead of making deposit of the Zar-e-Soim, the plaintiff/pre-emptor had on the last date, purchased the Defence Saving Certificates in the name of the Court, it was considered as compliance of the Court's order. In Abdul Wahid and others v. Sardar Ali and others 2000 SCMR 650, time for deposit of Zare-Soim was extended by their lordships in view of the assertion that the order of the Court could not be complied with due to closure of the Court during the month of August. It shows that in an appropriate case for valid reasons and justification shown the Court could relieve the party concerned, from oppression or unforeseen eventuality or circumstances beyond control. In the present case, as per tenor of the order of the Court, time was available for compliance of order, dated 22-3-1999 up to the full day of 21-4-1999. The plea of the plaintiff/pre- emptor taken in his review petition, (time whereof was also stated therein) and reiterated in the memo. Of appeal was believed by the learned Appellate Court and dismissal of the suit on 21-4- 1999 was found as patent illegality committed by the trial Court. The view taken by the trial Court to the contrary in its order, dated 8-5-2000 that Zar-e-Soim was to be deposited till 18-4-1999 was erroneous inasmuch as order dated 22-3-1999 did not say so rather the direction was to make deposit of Zar-e-Soim within one month, which was to be computed thenceforth onward. In case the intention of the Court was to direct the computation of the period from the date of filing of the suit the order should have been clear and unambiguous. It was, however, not so. The Appellate Court thus in accepting the appeal did not commit any illegality rather it cured manifest injustice. It is stated by the learned counsel for the respondent that Zare-Soim has since been deposited in compliance of Court's order and suit is pending before the trial Court but for the stay order granted by this Court no progress has been made therein.

' In view of the above, this petition is dismissed. No order as to costs.