' FAZLUR REHMAN KHAN, J.-By this writ petition, Syed Umar Ayaz Shah, calls into question the order dated 8-4-2002 of the ' learned Civil Judge. First Class, Bannu and as confirmed by the learned District Judge, Bannu vide his order dated 17-5-2002 whereby the learned Civil Judge refused to allow the petitioner to deposit the decretal amount in Court.
2. The brief facts, giving rise to this petition, are that the petitioner, his two brothers and two sisters brought a suit against Syed Qad Anad Shah and six others, respondents herein, for possession through partition to the extent of 57/120th share in house No,,171/A situated in Mohallah Abdullah Khan, Bannu city. The respondents contested this suit. After recording the evidence of the parties, the learned trial Court passed a preliminary decree through partition in favour of the petitioner and other plaintiffs. Feeling aggrieved of the judgment and decree of the learned trial Court, the respondents went in appeal and the learned Additional District Judge, Bannu, by an order dated 18-2-1996, dismissed the appeal of the respondents. The respondents then came in revision to this Court. During the hearing of the revision, the parties entered into compromise and on the basis of the same, this Court, in Civil Revision No,50 of 1996, passed the following orders on 3-5.1999:--- "ABDUR RAUF KHAN LUGHMANI, J.--- In the light of the joint statement of the parties this civil revision petition is disposed of in the terms that follow:---
(1) The plaintiffs-respondents are granted decree for possession of the suit property against all the defendants (including Representatives of deceased-respondent Mst. Rehamzada) on payment of Rs,6,60,000 (rupees six lacs sixty thousand) to be deposited with the trial Court, within two months from today, failing which the defendants-petitioners would have the option of depositing Rs,5,40,000 (rupees five lacs forty thousand) as the price of the share of the plaintiffs-respondents in the suit property, within a period of one month commencing from the date of expiry of two months granted to the plaintiffs-respondents and would consequently become entitled to the possession of the share of the said respondents.
(2) In case the respondents fail to deposit Rs,6,60,000 (rupees six lacs sixty thousand) within the stipulated period they would lose their option of purchase and in case of failure to deposit Rs,5,40,000 (rupees five lacs forty thousand) by the petitioners in the extended period of one month they would have no claim to further settlement.
(3) In the event of both the parties failing to subscribe to the aforesaid terms the civil revision petition shall stand dismissed.
' Parties are left to bear their own costs. ' announced. (Sd.)
' D.I. KHAN Judge."
' Dated 3-5-1999.
3. In pursuance of the foregoing order of this Court, the respondents were required to deposit the decretal amount of Rs,6,60,000 within two months. However, they failed to do so and on their failure, it was the turn of the petitioner to deposit the balance amount of Rs,5,40,000 in Court within a further period of one month. However, this period expired at a time when the learned trial Court was closed for summer vacation and on re-opening of the same, on 1-9-1999, the petitioner filed an application seeking permission to deposit the balance amount of Rs,5,40,000 in Court. This application was marked to the office for report but till 8-4-2002 no order was passed thereon, when on that date, after hearing arguments of the learned counsel for the parties, the application was rejected. Feeling aggrieved, the petitioner went in appeal. However, the learned District Judge, Bannu, by an order dated 17-5-2002, rejected the appeal. Now the petitioner has filed the present writ petition calling in question the foregoing orders of the learned tow Courts below.
4. We have heard the learned counsel for the parties and have also perused the record.
5. The contention of the learned counsel for the petitioner is that the last date for deposit of the balance amount in Court was 3-8-1999 but since from 1-8-1999 till 31-8-1999 the learned trial Court was closed for summer vacations and when on 1-9-1999, it re-opened, the petitioner filed the application the same day and under section 4 of the Limitation Act, 1908, he was entitled to deposit the same, as such, the learned two Courts below have committed a grave error by rejecting his application. In support of his contention, the learned counsel for the petitioner also placed reliance on 2000 SCMR 354.
6. the argument of the learned counsel for the petitioner is not without force. This Court passed the order on 3-5-1999 and as a well-established rule, the day on which the order was passed, is to be excluded from counting and counting the period of two months of the respondents, the last date for deposit of their share fell on 3-7-1999 but as the respondents failed to do so, accordingly, the period of the petitioner started on 4-7-1999 and the dast date fell on 3-8-1999 but as during the month of August, the Court was closed for summer vacation and under section 4 of the Limitation Act, 1908, the petitioner was entitled to get permission on 1-9-1999 to deposit the balance amount when the Court reopened for business. In this respect, the provisions of section 4 of the Limitation Act are not only clear but the observations of their Lordships of the Honourable Supreme Court of Pakistan in the authority cited above, fully support the case of the petitioner. Section 4 of the Limitation Act, 1908 provides that;-- "Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court inclosed, the suit, appeal or application may be instituted, preferred or made on the day when one Court re-opens."
7. In the case reported in 2000 SCMR-354, their Lordships held:-- "Neither, therefore, the case of Fayyaz Ahmad nor that of the Chief Personnel Officer, Pakistan Railways, both from this jurisdiction, can be construed to imply any deviation on the part of this Court from the established dicta in the sub-continent concerning the grace incorporated in section 4 of the Limitation Act. That section enables a suit or, appellant or applicant, in cases where the period of limitation for his suit, appeal or application expires on a day when the Court is closed, to institute, prefer or make such suit, appeal or application, as the case may be, on the day the Court re-opens. Consistent authority on the point is that where the Limitation Act provides an extension in the period of limitation, such as under the bulk of sections 6 to 24, the person concerned may add such period to that in contemplation of the First Schedule to the Limitation Act, and if the combined period so arrived at expires when the Court is closed, including when it is closed for vacation, the relevant suit, appeal or application, taking benefit from section 4 of the Limitation Act, may be instituted, preferred or made on the date the relevant Court reopens. Inter alia the rule has been recognized in Naganna v. Krishnamurthi, AIR 1932 Madras 139, Nur Muhammad v. Sachul, PLD 1957 Karachi 843, Rasul Bkhsh v. Ghulam Qadir, PLD 1960 Karachi 741, Fazal Karim v. Ghulam Jilani, 1975 SCMR 452, Inshallah Begum v. Shamim Akhtar, 1983 CLC 2583, Ikramullah v. Said Jamal, 1980 SCMR 375, Port Muhammad Bin Qasim v. NIC, Karachi, 1983 CLC 3126."
8. In view of the foregoing legal position, it is clear that the learned two Courts below have not properly appreciated the legal position of the case, as such, their orders are wrong, illegal and not maintainable.
9. Accordingly, this writ petition is accepted, the impugned orders of the learned two Courts below are set aside and it is directed that the petitioner shall be allowed to deposit the balance amount of Rs,5,40,000 in Court as per application dated 1-9-1999 within a period of one week from the date of announcement of this order. There will be no order as to costs.