FATEH KHAN vs BOZE MIR

' ABDUL QADEER CHAUDHRY, J.---This appeal by leave of the Court is directed against the judgment of the Peshawar High Court dated 24-2-1986.

2. The facts, in brief, are that the appellant challenged the sale through a pre-emption suit. The suit was decreed ex parte on payment of Rs,5,000 by means of judgment dated 26-2-1983. A sum of Rs,2,500 was deposited. The trial Court directed the appellant to deposit the remaining amount of Rs,2,500 before 20-4-1983. The appellant deposited the amount on 20-4-1983. The appellant then applied for execution of the decree on 21-5-1983. During the execution proceedings, an application was moved by the judgment-debtor that the amount was deposited beyond time. The objection was entertained and the execution application was rejected. The appellant's appeal succeeded on the ground that although the decree-sheet indicated as if the payment was to be made before 20th, but by a correction in the judgment, it was stated that the payment was to be made on or before 20th. The High Court accepted the revision petition of the respondent and the order of the executing Court was restored reversing the finding of the appellate Court. After perusing the record and the comments furnished by the trial Judge, it is clear that a direction was made for the deposit of the amount before 20th April, 1983. According to the trial Judge, no correction was made in the order for deposit of the amount on 20-4-1983. In view of such statement of facts, it is clear that the Court had directed that the amount should be deposited before 20-4-1983.

3. The precise point for consideration is whether under Order XX, Rule 14(1), C.P.C. The Court has the option to make a direction for the deposit of purchase money either on or before a specified date.

If the word 'on' or 'before' are used disjunctively then the Court has been empowered to pass an order in either of the two ways. The word 'on' in relation to 'time' generally means 'exactly at', 'contemporaneously with' and the word 'before' means, 'ahead of, 'earlier than'. The use of these words separately would give a discretion to Court and it has the choice of performing its functions in two kinds. It may direct payment before a specified day or on a specified day. It is entirely within the sole discretion of the Court to pass any of the two orders. But no guideline has been provided to the Court for the exercise of such discretion. There will be no parameter to measure the discretion used by the Court which in law is always exercised dispassionately, equitably and fairly and not arbitrarily. If these words are used separately then the one who has to pay the amount before a specified date would be treated differently than the one who has to pay the amount on a specified date.

4. In our view, the expression 'on or before' in Order XX, Rule 14(1), C.P.C. Is a composite phrase and has to be read as an integrated unit. These words are to be used jointly and not separately. Where law provides for performing an act in a specified way then it must be done in that way. In Tysoe v.

The Company (1911) 2 Ch. 279 it has been stated as follows:-- "A covenant to pay on or before a certain day creates a liability to pay on the day named with an option of earlier payment."

5. In Daggar v. Shephered (1946) KB 215, it has been observed 'The use of the phrase 'on or before' some fixed date is today by no means uncommon, particularly in covenants or demands for payment of money, and in such a context it cannot, in our judgment, be open to serious doubt that it means, and would be understood to mean, that the covenanter or debtor is under obligation to pay the debt on (but not earlier than) the date fixed but has the option of discharging it at any earlier time selected by him."

6. To our knowledge, there is no judgment interpreting the words 'on or before' in relation to Order XX, Rule 14(1), C.P.C. And none has been cited before us. We have, therefore, made an endeavour to construe this provision. Order XX, Rule 14(1) , C.P.C. Reads as under:-- "14(1). Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase money has not been paid into Court, the decree shall--

(a) specify a day on or before which the purchase-money shall be so- paid, and

(b) direct that on payment into Court of such purchase-money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with costs.

(2) ....................................

(a)

7. The provision of Order XX, Rule 14(1) is a penal provision in its nature and has to be construed strictly. The word 'shall' has been used in the main provision making a command and taking away discretion of the Court. If a Court be allowed to exercise discretion in either of the two ways, the result would be that a successful pre-emptor on merits would lose his right and the safeguard provided by law for non-compliance of the order. His failure to deposit the amount before a specified date would result in dismissal of his suit. On the other hand, a pre-emptor who is directed to deposit the amount on a specified date would get beneficial treatment from the Court. On account of the act of the Court, one would be in less favourable position as compared to the other.

A pre-emptor has an obligation to pay the amount, therefore, the order must be certain and definite and made in accordance with the rule. It would be right to put more reasonable interpretation upon his rule. Where the Legislature has intended that an amount should be paid before a specified date, it has specifically stated in the law. A reference may be made to section 13(6) of West Pakistan Urban Rent Restriction Ordinance wherein it is provided 'a Court shall direct the tenant to deposit all the rent due from him and also to deposit regularly till the final decision of the case before the 15th of each month the monthly rent due from him'. In our view, the Court has no option under Order XX, Rule 14(1)(a) to direct the pre-emptor but to deposit the amount 'on or before' a day specified by the Court. A direction for payment of money in a pre-emption suit under Order XX, Rule 14(1)(a) is mandatory and the order should specify a date as contemplated in this rule. In case of failure of the Court, a successful pre-emptor cannot be penalized as no party has to suffer on account of an act of the Court.

8. In the present case, as the Court has not directed the deposit of amount within the terms of Order XX, Rule 14(1)(a), the suit could not be dismissed. In fact, the appellant had deposited the amount on 20-4-1983. We, therefore, allow this appeal, set aside the order of the High Court and restore that of the District Judge for the aforesaid reasons. We may point out that this judgment will have no effect on the past and closed matters.