Malik HADAYAT ULLAH AND 2 Other vs MURAD ALI KHAN

1. HAMOODUR RAHMAN, C. J.----This appeal by special leave arises out of a judgment of a learned Single Judge of the erstwhile High Court of West Pakistan, Lahore Seat, by which he has held that the Court has no jurisdiction to extend the time for the deposit of the initial payment required to be made under section 22 of the Punjab Pre-emption Act, 1913 by a person applying for preemption.

2. The circumstances in which this order came to be made may be briefly stated as follows. On the 9th of July 1967, one Muhammad Anwar and four others executed a Deed of Sale in favour of tile respondent Murad Ali Khan of certain agricultural lands in the District of Sialkot. This Deed was registered on the 9th of October 1967. The three appellants who claimed to be residents of the village in which the property is situated as also co-owners in the estate filed a suit for pre-emption of the sale on the 17th of November 1967, on the ground that the vendee was a stranger. This suit was registered on the same day in the Court of Civil Judge, 1st Class, Narowal, who directed the issuance of process as also passed an order under section 22 of the Punjab Pre-emption Act that the zari panjam, i.e., 1/5th of the pre-emption money, amounting Rs. 1,400, should be deposited by the 6th of January 1968.

3. On the 5th of December 1967, however, the pre-emptors applied to the learned Civil Judge for permission to furnish security instead of depositing the amount in cash, as directed by the Court.

4. On the 6th of December 1--67, the Court, instead of disposing of this application, directed that it should come up for hearing along with the pre-emption suit on the 6th of January 1968. On the latter date, the Court first took up the application and rejected the same. Thereafter, the Court suo motu extended the time for making the deposit from 6-1-68 to 6-2-68. The pre-emptors deposited the zari panjam in cash on the 5th of February 1968, but the vendee, on the 5th of March 1968, applied under subsection (4) of section 22 of the Punjab Pre-emption Act, 1913 for the rejection of the plaint on the ground that the deposit of the zari panjam not having been made by the 6th of January 1968, the suit was no longer maintainable.

5. The learned Civil Judge rejected this application holding that the objection was frivolous. The respondent then went up in revision to the High Court which took the view that in the absence of any prayer or application for extension of time on the part of the plaintiff-respondents, the Court had no jurisdiction to extend the time of its own. Extension of time can be granted when there is a sufficient cause for the purpose-a plea which must first be raised and then put to proof. No such course was adopted in the instant case and the learned Civil Judge of his own extended the time which was beyond his jurisdiction".

6. The learned Judge of the High Court was further of the opinion that, by rejecting the application for conversion of the deposit from cash to security as being without sufficient cause, the trial Court had contradicted itself by allowing extension on the same insufficient grounds. The learned Judge was further of opinion that there were no cogent grounds upon which the Court could have extended the time suo motu or otherwise.

7. Leave was granted in this case to consider whether, in view of the clear provisions of subsection (4) of section 22 of the Punjab Pre-emption Act, 1913, the High Court was right in taking the view that the Court had no jurisdiction to extend the dime.

8. Section 22 of the Punjab Pre-emption Act reads as follows:---- ---Section 22. Plaintiff may be called on to make deposit or to file security.-(1) In every suit for pre- emption the Court shall at or at any time before the settlement of issues require the plaintiff to deposit in Court such sum as does not, in the opinion of the Court, exceed one-fifth of the probable value of the land or property, or require the plaintiff to give security to the satisfaction of the Court for the payment, !f required, of a sum not exceeding such probable value within such time as the Court may fix in such order.

(2) In any appeal the Appellate Court may at any time exercise the powers conferred on a Court under subsection (1).

(3) Every sum deposited or secured under subsection (1) or (2) shall be available for the discharge of costs.

(4) 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.

(5) (a) If any sum so deposited is withdrawn by the plaintiff, the suit or appeal shall be dismissed.

(6) If any security so furnished for any case becomes void or insufficient, the Court shall order the plaintiff to furnish fresh security, as the case may be, within a time to be fixed by the Court, and if the plaintiff fails to comply with such order, the suit or appeal shall be dismissed.

(6) The estimate of the probable value made for the purpose of subsection (1) shall not affect any decision sub--sequently come to as to what is the market value of the land or property."

9. It will be apparent from the language of subsections (4) and (5) (b) of section 22 that the rejection of the plaint or the dismissal of the suit will be ordered if the plaintiff fails to make the deposit within the "time fixed by the Court" or "within such further time as the Court may allow to make the depositor furnish the security." This clearly contemplates that the Court has the power to extend the time. This is no doubt a discretionary power, which like all other judicial discretions, must be exercised upon sound judicial principles, but it can, by no stretch of imagination, be said that the Court has no jurisdiction to extend the time at all.

10. The Punjab Pre-emption Act does not prescribe any proce--dure for obtaining such extension of time but upon general principles a Court has normally to be moved by an application of some kind, either oral or written. This does not, however, 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 the absence of any provision in the Statute or in the rules made under the Statute expressly providing that the Court shall act on the application: of a party it cannot be said that such an application is a condition precedent to the exercise of the power. The power does not become nugatory, if no application is made for invoking that power. If the Court could we-are clearly of opinion that it could under subsection (4) of section 22 extend time, then it could do so either on the application, written or oral, of a party or even suo motu where the justice of the cause so demanded.

11. In the present case, the learned Judge of the High Court thought that there was no ground at all for granting such an extension although it was argued before him that in the present case the Court had made it practically impossible for the appellants, who were plaintiffs in the pre-emption suit, to comply with the order for making the deposit within the time originally fixed by the Court by its own action, namely, the adjournment of the application for furnishing security instead of making the deposit in cash from the 6th of December 1967, to the 6th of January 1968, on which date the pre- emption suit itself was fixed for hearing. If the Court had not done so but had disposed of the application soon after it was filed the present difficulty would not have arisen. The pre-emptors would have had sufficient time to make the deposit in cash.

12. The extension of time in the present case was granted before the time originally fixed for making the deposit had expired and before the disposal of the suit. No objection could, therefore, be taken on this ground either. If the Court had the power to extend time it could do so even after the expiry of the period originally fixed unless the statute prohibited this or unless the order had become final and rendered the Court functus officio. The general principle is that where by an order time is fixed by a Court for doing any act the Court can grant extensions from time to time till it ceases to have jurisdiction over the matter or loses seisin of the matter.

13. In the circumstances, we are clearly of the view that the High Court grievously erred in holding that the Civil Judge had no jurisdiction at all to grant the extension of time. At worst, all that could be said was that perhaps the Civil Judge had not exercised his discretion in a proper manner in granting the extension but then the matter would not have been revisable by the High Court under section 115 of the Civil Procedure Code. Before the High Court could interfere under this latter section, it had to be satisfied that the Court below had acted illegally or with material irregularity in the exercise of its jurisdiction or exercised a jurisdiction not vested in it by law or failed to exercise a jurisdiction so vested.

14. Obviously, the learned Judge in the High Court was conscious of this difficulty and hence it appears to us, unneces--sarily went out of his way to hold that in the present case the Civil Judge had no jurisdiction to extend the time, notwithstand--ing the provisions of subsection (4) of section 22 of the Punjab Pre-emption Act.

15. There was, as we have already pointed out, a very good and substantial reason for the extension of time, because, even assuming that no application was made by the appellants for such extension of time, the Court, in the interest of justice, was fully competent suo motu to extend the time when it had by its own act made it practically impossible for the appellants to comply with its original order by adjourning the application for furnishing security to the 6th of January 1968.

16. We are thus fully satisfied that this appeal must be allowed and we, accordingly, allow the same with costs, set aside the order of the High Court and restore that of the trial Court. The suit should now be taken up for hearing and disposed of as expeditiously as possible. Let the records be sent down immediately.