SHEIKH MUHAMMAD Versus Haji NAZIR AHMAD

ORDER

The petitioner purchased the suit land vide Mutation No.3492 attested on 22-12-2004. On 21-4-2005 the respondent filed a suit for possession of the suit land by pre-emption. For the purposes of this civil revision, it will be sufficient to state that according to him the land had, in fact, been sold for Rs.2,00,000 but a sum of Rs.2,50,000 was ostensibly mentioned as the sale price. This suit came up before the learned trial Court on 21-4-2005. The petitioner/defendant was summoned for 11-5-2005 and a direction was issued to the respondent to deposit a sum Rs.83,334 being 1/3rd of the price. On 11-5-2005 the respondent presented an application for extension of time. This application was rejected and the suit was dismissed by the learned trial Court by recording the following order:--

The respondent filed a first appeal against the said order on 14-5-2005. On the same date, he filed an application before the learned Court of first appeal praying that he be permitted to deposit the said amount. The application was allowed at the risk of the respondent on the same date. The deposit was, in fact, made on 16-5-2005. Vide judgment and decree dated 4-7-2005 the learned ADJ, Lodhran, allowed the first appeal of the respondent and has sent back the case for trial on merits.

2. Learned counsel for the petitioner contends that there is no provision in the Punjab Pre-emption Act, 1913, authorizing the trial Court to extend the time for deposit once fixed. The precise contention is that once having passed the order for deposit the jurisdiction vesting in the Court stood exercised and exhausted and the Court had no power to extend the time notwithstanding the fact that the 30 days period had not yet elapsed. He relies on the cases of Muhammad Aziz v. Akhtarian Begum (2004 SCMR 1709), Noor Ahmed v. Additional District Judge, Pattoki, District Kasur and 6 others (2004 MLD 417) and Ijaz Ahmad Khan v. Muhammad Asif (2000 CLC 808).

3. I have examined the copies of the available records. I have already noted above the entire proceedings that took place before the learned trial Court. Now section 24(1) of the Punjab Pre-emption Act, 1991, mandates a Court to require the plaintiff to deposit 1/3 rd of the sale price of, the property in cash within such period as the Court may fix. Proviso to subsection (1) is to the effect that such period shall not extend beyond 30 days of filing of the suit. Now subsection (2) of the said section 24 lays down that where a plaintiff fails to make a deposit under subsection (1) within the period fixed by the Court, or withdraws the sum that was deposited by him, his suit shall be dismissed.

4. Now the suit was filed on 21-4-2005. On the same date the learned trial Court directed the respondent to make the deposit till 11-5-2005. This makes a period of 20 days. On 11-5-2005 while there were still 10 mere days to the expiry of the said statutory period of 30 days, the application was filed by the respondent for extension of time. I have already reproduced the order passed by the learned. trial Court to the effect that there is no provision in the Punjab Pre-emption Act, 1991, for extension of time.

5. Now in the said case of Muhammad Aziz, the initial direction issued on the date of the institution of the suit was too the deposit to be made within one month. In the said case of Noon Ahmad, the initial direction made on 2-1-2003 by the learned trial Court was for deposit of the amount within 30 days. Similarly, in the said case of Ijaz Ahmad Khan, the initial direction was for making of deposit within a period of one month. The said judgments, of course, where passed in the said factual background on the premises that the statute itself having fixed the maximum period and the same having been granted, the Court would not be having jurisdiction to extend the same.

6. In the present case, the said maximum period had not expired when the learned trial Court proceeded to dismiss the suit while refusing to extend the time on the assumption that it had no jurisdiction to extend the same. To my mind the said provision of law has to be read as a whole and interpreted accordingly. Now going by the words of the said section 24(1) and proviso to it, it can be safely interpreted to mean that within the outer parameter of 30 days fixed by law, the learned Court has the jurisdiction to extend the time once granted. Now the learned counsel is right when he says that there is no express provision in the Punjab Pre-emption Act, 1991, authorizing a Court to extend the time once fixed. However, it is equally true that there is no prohibition expressed in the said law upon a Court to exercise jurisdiction in the C matter within the outer parameter of 30 days fixed by the said law. It is by now well-settled that unless there is an express prohibition in law, it is to be assumed that the Court has the power to do the act not expressly prohibited. Now the prohibition expressly laid down in law is that the Court is not to extend the time beyond 30 days. Applying the said rule, it can be said that the Court has the power to extend the time up to 30 days commencing from the date of institution of the suit. In the present case, 20 days time was given for the deposit. The time of 30 days prescribed by law was to expire on 21-5-2005. The appeal was filed on 14-5-2005. On the same day, permission was sought for making the deposit which was granted and the deposit, in fact, was made on 16-5-2005.Thus, from whatever angle seen the deposit had been made, within the time prescribed by law. The learned Court of appeal was vested with the same powers as the learned trial Court in terms of section 107 C.P.C. and it cannot be said that it had acted without jurisdiction permitting the deposit within the period prescribed by law. Reference be made to the cases of Ch. Muhammad Yaqoob v. Nazim Hussain and others (1995 CLC 1271) and Mst. Wafajan v. Mahram Zad (1995 CLC 2002). In the said judgments, a somewhat similar view has been taken by observing that an extension can be made by the Court within 30 days of the institution of the suit. The civil revision accordingly is dismissed in limine.

H.B.T./S-433/L Revision dismissed.