MUHAMMAD JAHANGIR vs MUHAMMAD ABBAS and 2 others

' The facts giving rise to the present revision petition are to the effect that plaintiff/petitioner had instituted a suit for possession through pre-emption, on a sale of land measuring 24 Kanals situated in Mauza Khan Bahadur, Tehsil Depalpur transferred through mutation of sale dated 27-4- 2002 in favour of the defendants/respondents. On 21-8-2002 the trial Court directed the plaintiff/petitioner, herein, to deposit 1/3rd amount of sale i.e, Zar-i-Soim Rs,1,16,000 within thirty days. The petitioner deposited the said 1/3rd amount as directed by the trial Court on 20-9-2002, one day beyond the period of 30 days and for this fault of the plaintiff/petitioner, his suit was dismissed under section 24 of the Punjab Pre-emption Act, 1991, vide judgment, dated 22-11-2002 by the trial Court. Feeling aggrieved the petitioner preferred an appeal which came up for hearing before the Additional District Judge, Depalpur, District Okara which also met with failure vide, order, dated 25-4-2003.

2. Learned counsel for the petitioner has contended that the petitioner had deposited the amount within 30 days i.e, on 20-9-2002. Further contended that in accordance with the provisions of section 9 of the General Clauses Act, the date of order is excluded from the prescribed period. Also contended that due to misinterpretation of law the petitioner should not be non-suited and the Court is empowered to extend the time for the ends of justice. He has placed reliance on the case of Ch. Muhammad Yaqoob v. Nazim Hussain and others 1995 CLC 1271.

3. On the other hand, learned counsel for the defendants/ respondents vehemently opposed the arguments of learned counsel for the petitioner contending that the Court is not empowered to extend the period of deposit of amount beyond 30 days. He placed reliance to the case of Awal Noor v. District Judge, Karak and 8 others 1992 SCM R 746; Ijaz Ahmad Khan v. Muhammad Asif 2000 CLC 808 and Jamshed Ali and 2 others v. Ghulam Hassan 1995 CLC 957.

4. I have heard the arguments of the learned counsel for the parties and perused the record.

5. Once a trial Court has passed an order under section 24 of the Punjab Pre-emption Act, 1991, for the deposit of 1/3rd pre-emption amount which was duly complied with, it could not pass any other order after 30 days of the institution of the suit. Section 24 reads as under:-- "Section 24 Plaintiff to deposit sale price of the property.--- (1) In every suit for pre-emption, the Court shall require the plaintiff to deposit in such Court one-third of the sale price of the property in cash and for the remaining two-third furnish bank guarantee to the satisfaction of the Court within such period as the Court may fix: ' Provided that such period shall not extend beyond thirty days of the filing of the suit: ' Provided that if no sale price is mentioned in the sale-deed or in the mutation, the Court shall require the deposit of one-third of the probable value of the property, and a bank guarantee for the remaining two-third of such probable value: ' Provided also that the plaintiff may, in lieu of bank guarantee, deposit the required amount in cash.

(2) Where the plaintiff fails to deposit one-third of the sale price or the probable value of the property and the required bank guarantee under subsection (1) within the period fixed by the Court, his suit shall be dismissed.

(3) Where the plaintiff withdraws the sum deposited by him or the bank guarantee furnished by him under subsection (1), his suit shall be dismissed.

(4) Every sum deposited under subsection (1) shall be available for the discharge of costs.

(5) The probable value fixed under subsection (1) shall not affect the final determination of the price payable by the pre-emptor."

6. The point agitated by learned counsel for the petitioner boils down for determination in this case is whether the deposited amount by the petitioner on 20-9-2003 was within time or it was beyond 30 days and the Court was competent to extend that period suo motu, on the application of the petitioner. The Legislature has imposed restriction on the power of the Court restricting it that time for deposit of 1/3rd of the sale price shall not extend beyond 30 days of the filing of the suit. From bare reading of the provisions of section 24 it is manifestly clear that 30 days shall be counted on filing of the suit. It would mean that it was the duty of, the plaintiff/pre-emptor to deposit one-third of sale amount as soon as he institutes the suit in the Court and the 30 days would start from the day of filing of the suit. In the instant case, pre-emption suit had been filed on 21-8-2002 and on the said date the Court had directed the plaintiff to deposit the amount of Zar-i-Soim within thirty days. The time of 30 days expired on 19-9-2002. The day of filing of the suit (21-8-2002) shall be calculated 30 days would be as under:-- 21-8-2002 to 31-8-2003 1-9-2002 to 19-9-2002 11 days] 19 days] equal to 30 days total days of August and September, 2002, 30 days ending on 19-9-2002.

7. The pre-emptor is under legal obligation to deposit the one-third amount within 30 days of filing of the suit and not from the date of passing the order. Had the order not been passed by the Court even then the plaintiff was duty bound to deposit the amount within 30 days of filing of the suit.

Though the plaintiff/petitioner had deposited the amount in compliance with the order of the trial Court but one day after the expiry of 30 days. Since the power of extension of time for deposit of one-third (Zar-i-Soim) has been restricted to 30 days and the Court cannot extend the same. The first proviso to section 24 bars the discretion of the Court to extend the time beyond 30 days by a positive command in the negative. Therefore, if the period expired on one day earlier than the deposit made by the petitioner, it cannot be extended or no benefit can be given to the petitioner.

In this context reference can be made to the case of Awal Noor (supra) and Ijaz Ahmad Khan v.

Muhammad Asif 2000 CLC 808. Further where the law requires a particular thing to be done in a given manner, it has to be done in that manner, (the party is not excused from performance of an order/obligation, if the same is not strictly done in accordance with law). The requirement of deposit of 1/3rd was a mandatory in nature and not directory and the plaintiff was required to deposit the same within thirty days. Reference can be made to the case of Jamshed Ali (supra).

8. In view of the principle laid down by the superior Court in the cases referred to above, the Courts below have passed valid orders and this Court in exercise of its revisional jurisdiction would not interfere with the same.

9. For the foregoing reasons, this petition being devoid of force is dismissed.

Revision .