Malik EJAZ NABI vs GHULAM HUSSAIN AND 15 Other
This matter concerns a petition for special leave to appeal against the dismissal of a pre-emption suit. The petitioner filed a pre-emption suit where the trial court ordered a deposit of one-fifth of the pre-emption money by a specific date. After failing to deposit the amount, the petitioner obtained an extension but subsequently failed to appear, leading to the dismissal of the suit for default. Upon restoration of the suit, the petitioner applied for a further extension of time for the deposit, citing illness. The trial court considered and dismissed this application, subsequently rejecting the plaint under the Pre-emption Act. The appellate courts affirmed this rejection. The core legal question was whether the trial court acted without jurisdiction by rejecting the plaint without providing the petitioner an opportunity to show cause. The Supreme Court held that the rejection was valid because the trial court had actively considered and dismissed the petitioner's application for an extension of time, meaning the rejection was not an automatic consequence of default but a judicial decision. The petition was dismissed as meritless.
- Is a trial court required to issue a show-cause notice before rejecting a plaint for failure to deposit pre-emption money when an application for extension of time has already been considered and dismissed?
- Does the rejection of a plaint under the Pre-emption Act constitute an automatic order if the court has previously applied its mind to an extension application?
- Order IX Rule 9, Code of Civil Procedure 1908
- Section 4(4), Punjab Pre-emption Act 1913
ORDER
1. HAMOODUR RAHMAN, C. J.-In a suit for pre-emption, filed by the present petitioner, the, trial Court had, on the 9th November 1964, passed an order for the deposit of Rs. 800, being the 1/5th of the pre-emption money by the 8th of January 1965. The petitioner could not make the deposit within the said period, but on the 8th January 1965, obtained an order from the trial Court extending the period up to 15th February 1965. On this date, however, the petitioner failed to appear and his suit was dismissed for default under Order IX, rule 9 of the Civil Pro--cedure Code.
2. The suit was ultimately restored to the file on, the 22nd September 1966 and on the same day the petitioner filed another application for the extension of time for making the deposit on the ground that he had failed to make the deposit during the time allowed due to illness. This application was heard and dismissed and then the plaint was rejected on the 23rd September 1966, under section 4 subsection (4) of the Pre-emption Act.
3. This order was affirmed on First Appeal by the Additional District Judge, Muzaffargarh and a second appeal there from has been dismissed in limine by a Division Bench of the High Court of West Pakistan.
4. The petitioner now seeks Special Leave to Appeal and it is contended on his behalf, as it was contended in the High Court, that the trial Court had no jurisdiction to reject the plaint without first asking the petitioner, who was the plaintiff in the suit, to show cause for his omission. In support of this contention reliance is also placed on a decision of a learned Single Judge of the Lahore Bench in the case of Umar Hayat v. Azizullah Khan and others (PLD 1956 Lah. 297). The main reason which prevailed with the learned Judge in that case was that the Court had not, in the facts of that case, applied its mind to the question whether time should or should not be extended. The learned Judge had there observed with regard to the order of the trial Court that "it appears to be an order which automatically followed the failure to deposit the amount".
5. The facts of the present case are totally different. In this case an application for extension of time was made, it was con--sidered and dismissed and only after its dismissal was the plaint rejected.
6. It cannot, therefore, be said that in the present case the order rejecting the plaint was automatic or that the Court had not applied its mind to the question of extending the time.
7. This petition is without any merits and is, accordingly, dismissed.
Cited by 4 cases
- IMTIAZ ALI SHAH vs MUHAMMAD ALI and 6 others 2001 YLR 679
- Syed IMTIAZ ALI SHAH vs MUHAMMAD ALI And Other K.L.R. 2002 Revenue Cases 90
- Mst. ANWAR MAI vs GHULAM QADIR SHAH And 2 OTHER 1986 CLC 1457
- BASHIR AHMAD And Others vs MUHAMMAD ASLAM And Another 1986 SCMR 315