A suit for possession through pre-emption filed by Noor Ilahi, petitioner, was dismissed by the trial Court, but was decreed by the First Appellate Court in appeal vide judgment dated 13.11.1983 with a direction to the petitioner to deposit the decretal amount by 8.12.1983 less already paid and in case of his failure the suit was to be dismissed. On the said date, i,e, 8.12.1983 when the petitioner-decree holder went to deposit the amount, the successor of the trial Judge was on leave, so an application was moved to the Duty Judge to allow the decree-holder to deposit the pre-emption money. The case of the petitioner was that he alongwith Ch. Ghulam Mustafa Chohan, Advocate, After obtaining permission to deposit the amount, with challan went to the Bank to deposit the money but the banking hours were off. The learned Duty Judge also refused to get the money. The learned Additional District Judge was on tour to Narowal. On 9th December, 1983 it was Friday and the Courts were closed due to holiday. The petitioner moved an application to the appellate Court for extension of time. This application for grant of extension of time was dismissed by the learned Additional District Judge vide his order dated 14.1.1984. Civil Revision filed there-against bearing C.R.
No, 872 of 1984 was allowed by this Court vide order dated 24.6.1992 and the application allowing the deposit of pre-emption money was remanded with the following observation:-- "He was therefore, entitled to lead evidence to show that he was ready with the money , had approached the Cashier but he had declined to receive it because it was Thursday and that bank had already closed its banking business and that then the petitioner had approached the learned Duty Civil Judge then gone to Sialkot and then again approached the learned Civil Judge at Pasrur."
It was further observed that question before the learned Additional District Judge was not whether the time fixed in the decree should or should not be extended, it was 'whether or not the petitioner did all that lay in his power to do to deposit the money on 8.12.1983 and the decree dated 13.11.1983 was, therefore, complied with'.
2. The Civil Appeal No, 452 of 1992 filed by Muhammad Ismail, respondent, and others in the Hon'ble Supreme Court was dismissed on 27.4.1994. In the pursuance of the order dated 24.6.1992 passed by the High Court, referred to above, the learned Additional District Judge recorded the evidence of the parties. The learned Additional District Judge by referring the statement of Muhammad Nazir, Clerk of Ch. Ihsanullah Advocate Pasroor PW-1 and Ch. Ghulam Mustafa Chohan, Advocate, PW-2, rejected the application vide the impugned order dated 31.7.1996, hence this civil revision.
3. The learned counsel for the petitioner contends that the remand order dated 24.6.1992 passed by the High Court has not been complied with by the learned Additional District Judge while passing the impugned order. He states that the evidence on the record, particularly the application Exh. P.1 for permission to deposit the money and the challan Exh. P-1/B, Exh.P.1/C and Exh.P.1/D signed by the learned Duty Judge on the same day, i.e9 8.12.1983, would show that the petitioner made genuine efforts to pay the amount on the stipulated date but the deposit could not be made in the Bank owing to expiry of Banking hours and the Court itself was on leave on the day which was the last one for depositing the purchase money, and further the next day was holiday, the petitioner obtained permission and deposited the purchase money in compliance with the decree.
4. Conversely, the learned counsel for the respondent submits that the petitioner did not deposit the money within the stipulated time therefore there was no decree in favour of the petitioner.
Further contends that the evidence has been appreciated by the Court in pursuance of the remand order by the High Court.
5. I have considered the arguments of the learned counsel for the parties and perused their record with their assistance. In compliance with the provisions of Order XX Rule 14(1)(a), CPC, the Court directed the petitioner decree-holder to pay the purchase money by 8.12.1983. Modes of paying money under a decree have been described in Order XXI Rule 1 CPC. A The requirements of this rule are satisfied if proper tender of money is made in time Under Section 10 of the General Clauses Act if a Court or office is closed on the day when an act is to be performed therein, the act can be performed on the next opening day of the Court or the office. In case reported as Nijabat Khan vs. Nur Ahmad and 7 others (PLD 1957 (W.P.) Lahore 92) it has been ruled:- "The section would be applicable even if the Court or office is closed for a part of the day, for it was the party's right to perform the act in that part of the day for which the Court or office was closed, and therefore even when the Court or office is closed for some part of the usual working hours, the party concerned would get the benefit of Section 10. When a treasury or the bank refuses to accept a deposit on the ground that it transacts business only up to a certain time then the treasury or the bank should be deemed to be closed for that part of the day in which it refuses to transact such business and the party concerned should have the right to make the deposit on the next day." In the Nijabat Khan's case, mentioned above, B.Z. Kaikaus, J., as Mylord then was, differed with the view of the case of Mahbub Ali and another (AIR 1944 Lah. 740) by observing:-- "I must state that I find some difficulty in regarding the offer of the decretal amount as tender in the strict legal sense. If it were to be so regarded, the result would be that it would be tentamount to payment and after having once offered the money. to, the Imperial Bank, the person concerned would not be under any obligation to make any further effort for the payment of the money." His. Lordship proceeded to express his own view in the following Words:-- "My own view of the effect of refusal of treasury or the bank to accept a deposit at any time within Courts hours is that we should regard the treaty or the bank as being closed on that day and should give the party concerned the same benefit as he would have if the treasury or the bank was closed. Under Section 10 of the General Clauses Act if a Court or office is closed on the day when an act is to be performed therein, the act can be performed on the next opening day of the Court or office."
7. In the case reported as Khan Muhammad and another v. Mir Zaman (PLD 1986 Peshawar 109) while interpreting the provisions of Order . XX Rule 14 CPC it was held:- "In case of inability to deposit pre-emption money due to rush on bank on last day, pre-emptor would have to demonstrate due vigilance by immediately approaching Court to tender pre- emption money In such case benefit of S. 10, General Clauses Act would be available to pre- emptor."
In the above referred case, the pre-emptor was non-suited on the ground that the transaction was not a sale but in fact exchange and that the preemptor did not deposit the amount in compliance with the time fixed by the Court.
8. In Khadim Hussain's case (1973 SCM R 243) delay of one day was deemed to be due to negligence of tenants and striking of their defence was considered to be justified. This case of Khadim Hussain (supra) was brought to the notice of the Hon'ble Supreme Court in the case reported as Malik Shoaib Anwar vs. Bashir Hussain Shami and 2 others (1993 SCM R 535) and delay of one day in deposit of rent in compliance with Section 13(6) of Ordinance No, VI of 1959 was condoned by observing:- "Question whether tenant was guilty of default and had committed violation of Court's order passed under S. 13(6) of the Ordinance No, VI of 1959, could only be answered by an examination of special facts and circumstances of each particular case and no hard and fast rules could be laid down in such matters."
9. On the touchstone of the above referred case law, the question for determination before this Court is whether the petitioner decree-holder has complied with the condition of deposit of purchase money within the stipulated time by 8.12.1983. The following facts are admitted on the record-- (i)the decree as required under Order XX Rule 1(a), CPC, directing the petitioner to deposit the purchase money by 8.12.1983 was granted by the appellate Court on 13.11.1983; (ii)Ch. Ghulam Rasul, Civil Judge, Pasrur was on leave on 8.12.1983; (iii)an order was duly passed by the learned Duty Judge for deposit of the pre-emption money on 8.12.1983 as is evident from the application Exh.P.1 and the challan form Exh.P.1/B, Exh.P.I./C and Exh.P.1/D coupled with the statement of Muhammad Nazir, Clerk of Ch. Ihsanullah, Advocate, PW-1 and Muhammad Khalid PW-4, the then Reader of Mr. Shabbir Hussain Chaudhry, Civil Judge, Pasrur.
10. If it was Thursday and the working hours of the Bank on 8.12.1983 were from 9 a.m. to 12 Noon as stated by Mirza Manzoor Baig, Head Cashier of National Bank of Pakistan, PW-3, the next day, i,e, 9.12.1983 it was holiday due to Friday, the petitioner could have deposited the amount on 10.12.1983, which has not been done. On the contrary, an application Exh. P.2 was moved before the Additional District Judge, Sialkot and the amount was deposited on the next date, which is not in accordance with the mandate of the decree dated 13.11.1983.
11. On the basis of the above stated facts, it is concluded that the petitioner has not done that lay in his power to do to deposit the money on 8.12.1983, and the condition contained in the decree dated 13.11.1983 was therefore not complied with. The petitioner sought extension of time by applying to the Court, which was on the basis of misconceived legal position. As no person can be prejudiced by an act of the Court including an officer or agent of the Court; in this case there was not sufficient tender of the purchase money. Delay of one day in actual payment of the money, in the circumstances of each case, can be condemned by examining the conduct of the pre-emptor to deposit the money on following day, but the facts and circumstances of the case have made the petitioner disentitled to the benefit of the above rule as no executable decree in favour of the petitioner was existing on the day when he deposited the amount. For what has been discussed above, this revision petition fails and the same is dismissed with costs.