AMEERAN BIBI Versus MUHAMMAD ASHRAFF

This is a revision petition against the order, dated 19-2-1994 whereby Mrs. Zarqaish Sana, learned Senior Civil Judge, D.I. Khan refused to dismiss the suit of the pre-emptor on the alleged ground of non-deposit of pre-emption money within the period fixed by the Court.

2. Muhammad Ashraf respondent had brought a pre-emption suit against Mst. Ameeran Bibi etc., the petitioners on 15-7-1993. On the same day the Court ordered the deposit of Rs.4,00,000 (1/3rd of the total amount) as pre -emption money before the date,, fixed as 19-9-1993 and within 30 days. The exact words used by the Court are "Rs.400;000 Bataur-e-Zare Shufa "Naqad Qabal Az Tareekh-e-Muqarrira 19-9-1993 Andar Tees Yom Dakhil Adalat Karai" ....On 25-7-1993 the pre-emptor applied for the extension of time on the ground that the date fixed in the case was beyond 30 days and the date falling within 30 days was in the month of vacations. On 25-7-1993 the Court corrected its order and directed the deposit of pre-emption money before the date fixed i.e. 19-9-1993. The pre-emptor admittedly deposited the amount on 15-9-1993 that aggrieved the defendant who made the present petition on 8-11-1993.

3. The main grievance of the defendant-petitioner was that the order of the Court dated 25-7-1993 modifying its order, dated' 1 5-7-1993 was without notice to the defendant to whom the valuable right had accrued. In support the learned counsel for the petitioner relied upon PLD 1985 Pesh. 127, where it was held that in view of the accrual of valuable right to the opposite-party, no time could be extended for the deposit of pre-emption money without notice to the pre -emptee. The perusal of the above case reveals that the facts thereof are quite distinguishable, in that, the time for the deposit, of pre-emption amount had already expired and the pre-emptor was given extension after the expiry of period whereas in the instant case the pre-emptor had submitted application much, before the expiry of time and that too was in order to get some confusion removed.

4. The instant case has got a peculiar distinction of its own. It is an admitted fact that after the amendment of 1992 in section 24 of the N.-W.F.P. Pre-emption Act, 1987, the period in which the pre-emption money is to be deposited, is left to the discretion of the Court as against the fixed period of 30 days provided in the Original Act. The first order of deposit in the instant case would clearly reveal that the trial Court had itself created a confusion by ordering, on the one hand that the amount be deposited before 19-9-1993 and on the other that it be deposited within 30 days. Both such directions were different from each other and one of them fell within the month of vacations. Even if the plaintiff had deposited the amount before. 19-9-1993 without considering the direction of 30 days, his deposit would have been legal because-it was clearly provided within the order itself. It was rather all the more efficient on part of the plaintiff who got the confusion removed through subsequent order dated 25-7-1993 by which the date 19-9-1993 remained unaltered and the condition of 30 days that created confusion was removed. No party can be condemned on account of the confusion created by the Court itself and in such circumstances the instant confusion created by the Court was rightly removed. Rather, it was incumbent upon the Court to have clarified the matter. The pre -emptor was vigilant enough to have resorted to the Court much before the time fixed.

5. Since the question of accrual of right to the defendant-petitioner is concerned it is altogether unfounded because, as remarked by me earlier, even if the pre-emptor had not got the time corrected and even if he had deposited the amount considering 19-9-1993 to be crucial date, his deposit would have been perfectly within time because this date in particular was even otherwise mentioned in the order itself. No right had accrued because it was the Court by whose act the confusion got created and not the pre-emptor. By the time the Court corrected its own order on 25-7-1993, the defendant was even not served and the very institution of a pre-emption suit was never within his knowledge. The learned counsel for the respondent-pre-emptor relied upon Alamgir v. Salam Gul 1990 CLC 1915 (e), but it is not very helpful for the reasons that it pertained to N.-W.F.P. Pre-emption Act of 1950 and also to a period of limitation with reference to which the plaint used to be rejected for non-deposit of pre-emption money whereas in the present act it is the suit which is dismissed and hence one cannot say that no right to the opposite-party would accrue if the omission to deposit is done within the period of limitation as held in the above ruling.

In the circumstances the trial Court has rightly corrected its own order against which no right had then accrued to the defendant. The revision petition is hereby dismissed.

A.A./1608/P Revision dismissed.