NIAZ ALI Versus IBRAHIM

The facts of the case are that the respondent Ibrahim filed a suit for pre‑emption against the appellant. The plaint was presented for necessary orders before the learned Administrative Civil Judge, Gujranwala on 5‑11‑1970 when he directed the respondent to deposit 1/5th of the pre‑emption money in the Court before the next date of hearing fixed as 9‑12‑1970. This order was admittedly passed in the presence of the learned counsel for the respondent. Thereafter an application was made by the respondent on 8‑12‑1970 for extension of time for the purpose of deposit of the 1/5th amount. This application was rejected by the learned trial Court the same day holding that there was no reasonable cause shown by the respondent for extension of time. Neither the plaintiff=respondent nor his counsel appeared on the next day i.e. 9‑12‑1970, by which date the respondent was obliged to deposit the amount in question. Since the respondent as well, as his counsel absented themselves from the Court and the 1/5th of the pre‑emption money was not deposited, therefore, the suit was dismissed under Order IX, rule 8, C. t'. C. and the plaint was rejected under section 22 of the Pre‑emption Act.

2. The plaintiff‑respondent challenged the said order in appeal before le learned District Judge on q1‑1‑1971, which was accepted by the impugned order holding that sufficient cause had been shown for extension )f time for deposit of the 1/5th of the pre‑emption money and the case vas remanded to the trial Court for fresh decision in accordance with law.

The defendant‑appellant has now come up to the High Court and has challenged the validity of the impugned order passed by the learned District Judge.

3. The learned counsel for the respondent has argued that since the time limit for depositing 1/5th of the pre‑emption money has been extended by the learned District Judge in exercise of his discretionary power, therefore, the power exercised in this behalf should not be interfered with. He in this regard has relied upon Mahk Hidayat Ullah v. Urad Ali Khan ( PLD1972SC69 ). The learned counsel has also contended that since the Court can extend time in exercise of suo motu jurisdiction, therefore, the same having been exercised by the learned lower appellate Court no interference is called for.

I am afraid, the facts of the case relied upon by the learned counsel do not help the respondent. In that case the pre‑emptor was called upon under section 22 of the Pre‑emption Act to deposit 1/5th of the pre‑emption money on 6‑1‑1968. He, however, before the said date of hearing made an application to the Court for grant of permission to furnish security instead of depositing the amount in cash. The Court instead of disposing of the application earlier directed it to be heard on 6‑1‑1968, date of hearing already fixed by the Court. This application was rejected on the said date but the Court, however, extended time for making the deposit till 6‑2‑1968. It was held by the High Court that since no application had been filed for extension of time, therefore, the Court suo mote had no jurisdiction to pass any such order. It was held by the Supreme Court that the lower Court was fully competent suo motu to extend time when it by its own act made it impossible for the party concerned to comply with its original order by adjourning the application for furnishing security to the date by which 1/5th of the pre‑emption money was to be deposited. It was held that in view of the relevant provision of law as contained in subsections (4) and (5) (b) of section 22 of the Pre‑emption Act, the Court has the power to extend time, but such discretionary power has to be exercised upon sound judicial principles. It was further held that in such matters the Court has normally to be moved by an application or some kind either oral or written, but that does not mean that the Court has no jurisdiction in the absence of any such application to grant a discretionary relief where the justice of the case so requires. In view of the circumstances as mentioned above the Supreme Court found the order of the trial Court in extending the time justified.

4. In the present case, application for extension of time was filed by the plaintiff‑respondent on the ground that since on account of elections to the National Assembly he could not deposit the amount in question within time, therefore, time for that purpose might be extended. It was nowhere mentioned as to how he was involved in the said elections ; whether he was a candidate himself or was involved in that matter so much that he could not find time to do the needful in this regard. According to law any acts; mistaken or otherwise, of the litigant, or matters affecting his condition, such as poverty or physical inability, can hardly be adduced as sufficient cause in pre‑emption cases. The statutory law of pre‑emption constitutes a drawback on the freedom of contract and "security of title and as such its provisions must be construed and applied strictly against the claims of pre‑emptors. The discretionary power given to the Court by section 149, C. P. C. is in effect a power to extend limitation and it should be exercised with the greatest care. Since the right of pre‑emption is a predatory right, therefore, unless good cause is shown in a pre‑emption case for extending time, whether in respect of deposit of 1/5th of the pre‑emption money or making up deficiency in the court‑fee, the discretion vested in the trial Court under the said provision should not be exercised. Reliance in this respect can be placed upon Saeed Ahmad v. Karam Singh ( P L D 1949 Lah. 380 ). In that case the learned trial Court had allowed time to the Pre‑emptor to make up deficiency in the payment of court‑fee on certain flimsy grounds which were not found to be valid and reasonable by the High Court.

5. In another case, Malik Ejaz Nabi v. Ghulam Hussain and 15 others (1970 S C M R 169) the pre‑emptor had sought extension of time for ‑depositing 1 /5th of the pre‑emption money due to his illness. This application was heard and rejected and ultimately the plaint was rejected for non‑deposit of the pre‑emption money. Their Lordships of the Supreme Court held the ground not to be sound for extension of time under the relevant provision of law and affirmed the findings of the learned trial Court made in this behalf.

It has been held in Muhammad Azam Khan v. Ditta and others ( P L D 1967 Lah. 1068 ) that it is only for a sufficient cause that time for making the deposit under section 22 of the Pre‑emption Act can be extended, because the object of an order under section 22 (1) is to provide guarantee to the vendees against frivolous proceedings on the part of the possible pre‑emptors. It has been held that deposit in such cases is a token of good faith and the intention of law is that the pre‑emptor should deposit the amount under clause (1) of the section by the date fixed for the purpose. It has been further held that the Court can extend time but not in a mechanical manner ; it has to consider the circumstances of the case objectively which led to the delay. It has also been held that an appellate Court has also the power to grant pre‑emptor extension of period for payment fixed by the Court of first instance, but it exercises that power in favour of the pre‑emptor whose conduct has been bona fide.

In the said case, the plaintiff‑respondent instituted a suit for pre emption against the appellant before the High Court. The trial Court by its order dated 21‑3‑1963 ore ;red the plaintiff to deposit 1/5th of the pre‑emption money by 17th of January 1963. The plaintiff defaulted to deposit that amount within time which Ts deposited on 19th of Jan uary 1963. It was accepted by the trial Court subject to the condition that it was at the risk of the plaintiff. The said order was objected to by the appellant‑respondent before the High Court on the ground that since the deposit was not made within time, therefore, the suit was liable to be dismissed. The learned trial Court, though holding that the plaintiff: respondent had superior right of re‑emption dismissed the suit on the ground that he had failed to deposit 1/5th of the pre‑emption money within time. The appeal filed by the plaintiff‑respondent before the) lower appellate Court was accepted mainly on the ground that the trial Corm had impliedly extended the time for the deposit of the amount by inviting evidence. The main ground given by the plaintiff in his application filed before the trial Court was that the delay for depositing the amount was caused by the negligence of his counsel. This ground was not accepted to be valid as there was nothing on record to show that such negligence had been shown by the counsel concerned.

6. In the present case a vague type of ground was given by the respondent that on account of elections to the National Assembly he could not deposit the amount. There is nothing on record to show that how, what manner and under what circumstances he was so much involved in B those elections that he was genuinenly prevented by the compelling circums tances from depositing the amount. Unless a valid and reasonable cause is shown for extending time in such cases no concession, whatsoever, can be shown by the Court under the relevant provision of law.

7. The learned lower appellate Court has also observed that since the order for deposit of 1/5th of the pre‑emption money was not clear as to by which definite date it should be deposited, therefore, the respondent being not clear in his mind could not deposit the amount within time. I am afraid, this observation is not warranted being contrary to the facts present on record. The amount was to be deposited by 9‑12‑70, which was fixed as next date of hearing. There does not appear to be any ambiguity so far as the relevant order passed in this regard by the learned trial Court is concerned. Further, observation to the effect that since two orders were passed under two different provisions of law, therefore, the respondent was rightly confused as to which forum he should approach for the redress of his grievance is also unwarranted so far as law and facts of the case are concerned. The plaintiff being absent his suit was dismissed under Order IX, rule 8, C. P. C. and his plaint was rejected for not depositing the 1/5th amount within the stipulated period. So far as the rejection of the suit in default was concerned, the plaintiff could apply to the trial Court under rule 9 of the said order for setting aside the order dismissing the suit. However, since the plaint was rejected mainly on the ground for non‑deposit of the requisite amount, therefore the appeal was rightly filed before the learned District Judge.

8. The above discussion would show that the order of the learned lower appellate Court extending the time for deposit of the 1/5th amount cannot be held to be justified in view of the facts discussed above. In pre‑emption matters the statutory provisions should be construed strictly, pre‑emption right being a sort of encroachment upon the ordinary civil rights of the people. Since the plaintiff‑respondent failed to show his bona fides in seeking extension of time, therefore, there is no judicial basis for exercising discretionary power under the relevant provision.

9. For the aforesaid reasons the impugned order passed by the learned District Judge is set aside and the appeal is accepted with costs.

S, Q. Appeal accepted.