NIAZ MUHAMMAD KHAN vs Mian FAZAL RAQIB

1. ANWARUL HAQ, J.-The short question arising in this- appeal, by special leave, is whether the Court must be deemed to have extended the time fixed by it for furnishing security under section 23 (1) of the North-West Frontier Province Pre-emption Act, 1950 (hereinafter called the Act) if it accepts the security after the specified period.

2. The relevant facts are that on 6-4-66, the appellant Niaz Muhammad Khan filed a suit for pre- empting the sale of 77 kanals of agricultural land situate in village Razar in Tehsil Charsadda of the Peshawar District which had been effected by means of a registered sale-deed dated the 10 th of April 1965, by Syed Zahurul Hassan in favour of the respondent Miar Fazal Raqib for Rs. 29,000. The appellant asserted that the true sale price was only Rs. 22,000, whereas a sum of Rs. 7,000 retained by the vendee fog paying off a previous mortgage was fictitious. On 9-4-66 the trial Court acting under subsection (1) of section 23 of the Act, passed an order directing that the pre-emptor should deposit in cash Rs. 15,000 in Court before 6-5-66 and furnish security for the. Remaining Rs. 14,000 within three days. The cash amount was deposited by the appellant on 4-5-66, but the security was not furnished within 3 days as directed. Instead the necessary security was furnished on 5-5- 1966. It was attested and accepted by the Court on that very day.

3. On 25-7-66, the vendee-defendant made an application to the trial Court praying for the rejection of the plaint under subsection (4) of section 23 of the Act, on the ground that the plaintiff had failed to comply with the order of the Court, dated the 9th of April 1966 regarding the furnishing of security for Rs. 14,000 within three days. This application was, however, rejected by the trial Court, by its order dated the 5th of October 1966, on the ground that the failure of the plaintiff was due to some misunderstanding of the order made by the Court on 9-4-66 and that in any case the time must be deemed to have been extended by attesting the bond on 5-5-66.

4. Aggrieved by this order of the trial Court, the vendee-respondent went up in revision to the High Court of West Pakistan, Peshawar Bench. This revision petition was accepted by a learned Single Judge on the 2nd of May 1967 on the ground that the mere fact that the Court had received, attested and placed on record the security bond filed after the date fixed, did not imply that the Court had also extended the time. The Court observed that the plaintiff himself had never made any application for extension of time, and accordingly there was no escape from the conclusion that default had taken place with the consequence that the plaint had necessarily to be rejected in accordance with the mandatory provisions of subsection (4) of section 23 of the Act.

5. Section 23 of the Act is in the following terms " 23.-(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 the probable value of the land or property, or require the plaintiff to give security to the satisfaction of the Court for the payment, if 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 sub--section (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 Courts may allow to make the deposit or furnish the security mentioned in subsection (1) or (2) his plaint shall be rejected and his appeal dismissed as the case may be.

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

(b) If any security so furnished for any cause becomes void or insufficient the Court shall order the plaintiff to furnish or to increase the 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 sub--section (1) shall not affect any decision subsequently come to as to. What is the market value of the land or property."

7. As observed by this Court in Zulfiqar A.I v. Akhtar Islam (PLD 1967 SC 418) with reference to similar provisions contained in section 22 of the Punjab Pre--emption Act of 1913, the requirement of a cash deposit or security contained in subsection (1) is intended to guard against vexatious and mala fide litigation, and thus to guarantee a vendee against frivolous proceed--ings on the part of possible pre-emptors. If the order made under sub--section (1) is not complied with, then the consequence of such non--compliance, according to subsection (4), is that the plaint shall be rejected. It would thus be seen that once failure to comply with the order has occurred on the part of the pre-emptor, a right accrues in favour of the vendee to have the plaint rejected. In these circumstances it is difficult to hold that by the unilateral process of attesting and accepting a deposit or security, after the expiry of the specified period, the Court could by implication extend time and take away a valuable right which had accrued to the vend under the relevant statute.

8. Muhammad Haw v. Raghbar Dial (33I C 487), a Division Bench of the Lahore High Court observed that "the acceptance of the security by the District Judge amounted merely to an attestation of the fact that the security bond had been put in; it did not amount to an extension of the time within which the plaintiff had to furnish security". This view was followed in Bahodur Shah and others v.

9. Ahmad Shah (AIR 1925 Lah. 209). In the case of Ch. Zulfiqar A.I to which reference has been made in the preceding paragraph, it was observed by this Court that the power to extend time must be exercise expressly. Our answer, therefore, to the question formulated in this appeal is that the Court cannot be deemed to have extended the time fixed by it for furnishing security under section 23 (1) of the Act merely by accepting the security after the specified period. The time be extended by an . Express order made after application of the mind to the circumstance necessitating extension. The vendee has clearly a right to be heard before extension is granted.

10. It was submitted by Muhammad Shafi, the learned counsel for the-- appellant, that even though the trial Court had not passed an express order extending the time when accepting the security, yet the order made by it on the 5th of October 1966, rejecting the vendees application under subsection (4) of section 23 of the Act did amount to an order of extension of time, especially when the trial Court had construed its --own previous action as amounting to extension implication. The learned. Counsel submitted that ex post facto extension could be granted by the trial Court in accordance with the provisions contained in section 148 of the Code of Civil Procedure.

11. This argument does not fin any manner advance the case of the' appellant. .We have already held that there could be no extension of time" by implication. Any observation to the contrary in the order of the trial Court dated the 5th of October 1966, is, therefore, of no avail. Even if' this particular order is not regarded as an order consciously extending time, and it is further held that ex post facto extension could be granted by the application of the provisions embodied in section 148, C. P.

12. C., there is yet another difficulty in the way of the appellant. As pointed out by this Court in Ch. Zufiqar A.I's case, any variation in the order made by the Court under subsection (1) should also be made before the settlement --of issues. An extension of time is in the nature of a variation in the order, originally made. In the present case issues had already been framed on the 27th of June 1966, and accordingly, the trial Court was not competent-- to vary the conditions of deposit or furnishing security by an order made subsequently on the 5th of October 1966.

13. Learned counsel for the appellant then submitted that there was justification for extension of time in this case as the trial Court had itself felt that its order of the 9th of April 1966 had been misunderstood by the plaintiff. It was argued that the provisions contained in subsection (4) of - section 23 of the Act regarding the rejection of the plaint were only .Directory in nature, and it was, therefore, not obligatory for the Court to reject the plaint.

14. Viewed in this light, and keeping in mind the -fact that the provisions in question are embodied in a statute dealing with a right which has been .Described as predatory or piratical in nature, it would appear that the requirement enjoined by subsections (1) and (4) of section 23 of -the Act is mandatory in nature as failure to comply with the same is to be visited by the penal consequence of the rejection of the plaint. The High Court was, therefore, right in rejecting the plaint, once it came to the .Conclusion that the directions of the trial Court in regard to the furnishing of security had not been complied with within the period specified.

15. As a last resort, the learned counsel raised a . Completely new point, namely, that the order made by the trial Court on 9-4-66 was in contra--vention of the provisions contained in subsection (1) of section 23 of the --Act, as the section contemplated either deposit in cash or security not .Exceeding the probable value of the land or property in suit, but in the instant case the trial Court had required both a cash deposit as well as security, with the result that the non-compliance of such an illegal and invalid order could not incur the penalty provided in subsection (4) of the ,said section.

16. This point was not raised by the appellant at any stage of the proceedings in the trial Court or in the High Court ; nor was it urged at the time leave was obtained in this case. On the contrary, the appellant endeavoured to comply with the order by making the cash deposit in time, and by furnishing the security, although after the expiry of the specified period. In these circum--stances he cannot be permitted to raise this new defence at this late stage.

17. For the foregoing reasons, the appeal is found to be without substance .And is hereby dismissed.

18. However, in view of the legal questions involved we leave the parties to bear their own costs.