OBAID UD SALAM And Others vs FAIZ MUHAMMAD KHAN And Other
This matter arises from petitions for leave to appeal against the judgment of the Peshawar High Court, which allowed the respondent pre-emptor's writ petitions concerning the extension of time for depositing pre-emption money. The core legal question involved the validity of extending the time for depositing pre-emption money when the preceding day was a public holiday, and the scope of interference by a revisional court and a constitutional court with a discretionary order. The Supreme Court held that the trial Court's order extending time under section 23(4) of the N.-W.F.P. Pre-emption Act, 1950, was passed in exercise of a discretionary jurisdiction, and the District Judge acted without lawful authority in setting aside that discretionary order in revision under section 115 of the Code of Civil Procedure 1908 without establishing any jurisdictional defect, illegality, or irregularity. Consequently, the High Court's judgment upholding the extension was unexceptionable. The key principle laid down is that a revisional court cannot interfere with a proper exercise of judicial discretion by a trial court under section 23(4) of the N.-W.F.P. Pre-emption Act, 1950, in the absence of jurisdictional error or material irregularity.
- Whether a trial court's order extending time for deposit of pre-emption money under section 23 of the N.-W.F.P. Pre-emption Act, 1950 is a discretionary order?
- Can a revisional court interfere with a discretionary order of the trial court under section 115 of the Code of Civil Procedure 1908 without proof of illegality or jurisdictional defect?
- Does section 9 of the West Pakistan General Clauses Act 1956 permit the deposit of pre-emption money on the next working day when the deadline falls on a public holiday?
- Section 23(1), N.-W.F.P Pre-emption Act, 1950
- Section 9, West Pakistan General Clauses Act 1956
- Section 23(4), N.-W.F.P. Pre-emption Act, 1950
- Section 115, Code of Civil Procedure 1908
ORDER
1. MUHAMMAD AFZAL ZULLAH, J.-- Leave to appeal has been sought in these two petitions from judgment, dated 17-9-1985 of the Peshawar High Court; whereby respondent pre-emptor's writ petitions arising out of order of extension of time for the deposit of pre-emption money, were allowed.
2. The trial Court had directed the respondents under section 23(1) of the N.-W.F.P Pre-emption Act, 1950. To deposit Rs 50,000 as probable sale-price prior to 21st of November, 1981. The respondent pre-emptor made an application on 21-11-1981 for extension of time stating that 20th November, 1981, being Friday deposit could not be made, therefore, the time might be extended. The trial Court allowed the application and permitted the deposit to be made on the same day i.e. 21st November, 1981. The deposit was in fact made on that very day. This order was set aside by the District Court on petitioners' Revision and the case was remanded, for fresh decision after recording the evidence. The learned trial Court after due observance of the remand order maintained the earlier order dated 21st of November, 1981. The petitioners again filed a Revision Petition before the District Court which was allowed and the order of extension of time passed by the trial Court was set aside.
3. The respondent's writ petition against the revisional order of the District Court have been allowed on the main ground that by virtue of section 9 of the West Pakistan General Clauses Act (No. VI) A of 1956, it was permissible that the deposit could be made on the day next after the public holiday.
4. Reliance was placed on Umar Hayat v. Aziz Ullah Khan etc. PLD 1956 Lah. 297 and Rahmatullah Khan and another v. Gul Sher and others PLD 1962 (W.P.) Pesh. 183.
5. Leave to appeal has now been sought by the vendee-defendant.
6. Learned counsel for the petitioners has contended that the decision of the District Court could not have been set aside in writ jurisdiction. He, however, admits that in the order of extension passed by trial Court under subsection (4) of section 23 of the N.-W.F.P. Pre-emption Act was in exercise of a discretionary jurisdiction. He is also unable to point out any ground regarding jurisdiction, illegality or irregularity which might have been made the basis of the revisional order under section 115, C.P.C. We are, therefore, of the view that in the circumstances of this case, the District Judge had acted without lawful authority in setting aside the discretionary order of the trial Court passed under subsection (4) of section 23 of the N.-W.F.P. Pre-emption Act. The High Court judgment is unexceptionable. No justification has been made out for interference as these are not fit cases for grant of leave to appeal.
Cited by 2 cases
- NABI AHMED and others vs MUHAMMAD ARSHAD and others 2008 SCMR 1685
- Mst. MAH JEHAN vs ABDUL MAROOF 2000 MLD 814