' Abdul Karim son of Allah Rakha had sold out 22 Kanals, 4 Marlas of land, situated in Chak No,45/DNB, District Bahawalpur, to Irfan Ali and Arif Ali, sons of Muhammad Ashiq, defendants through Mutation No,302, sanctioned on 12-8-2003, for ostensible price of Rs,8,00,000 entered in the aforesaid mutation. Mst. Said Bibi, present writ petitioner filed a suit for recovery of possession on the basis of her alleged superior (pre-emptive) right in the Court of learned Civil Judge, Yazman on 17-11-2003. The suit file was presented before the learned Civil Judge III Class, Yazman, as a Duty Judge, because the concerned learned Civil Judge had proceed on medical leave. The above- mentioned Duty Judge directed the plaintiff to deposit 1/3rd of the total amount as Zar-e-Soim i,e, 2,66,667, but he omitted to specify/fix the date for deposit of the above noted amount although the order had directed the summoning of the defendants for 18-12-2003. The plaintiff/writpetitioner could not deposit the above noted amount due to reasons explained by the petitioner in her application. On 27-12-2003 an application was filed by Mst. Said Bibi, for condonation of delay in the matter of deposit of Zar-e-Soim of the sale consideration and for extension of time to deposit the Zar-e-Soim. Ground raised in the application was that on 17-12-2003, the petitioner had moved an application for deposit of Zar-e-Soim and had gone to deposit the amount in the National Bank Branch Mandi Yazman with her husband, but the Manager told the petitioner regarding the closing of bank due to the finishing of time. On the second day i,e, 18-12-2003 again the petitioner had visited the bank but the Manager of the bank refused to accept unless there was a fresh order of the Court permitting the deposit of the amount. The petitioner had already moved an application on 18-12-2003 for initiation of contempt of Court proceedings against the aforesaid Manager, which was fixed on 23-12-2003. It was further entered into the application that no date for deposit of Zar-e-Soim was fixed by the learned Court through its order, dated 17-11-2003. So, there was no bar for the deposit of the amount thereafter. Application for extension of time was allowed by the learned Duty Civil Judge, through his order dated 27-12-2003, and the petitioner had then deposited the amount on 29-12-2003. Aggrieved from the order, dated 27-12-2003, a revision was filed by Irfan Ali and Arif Ali, defendants before the learned Additional District Judge, Bahawalpur, who by accepting the civil revision, declared the order, dated 27-12-2003 to have been passed with illegality and irregularity in the exercise of jurisdiction, set aside the order dated 27-12-2003. This order was passed by the learned Additional District Judge, Bahawalpur on 15-4-2004. Dissatisfied with this order the present writ petition has been filed by the plaintiff-petitioner.
2. Learned counsel appearing on behalf of the writ petitioner has argued that on 17-11-2003 learned Civil Judge had not fixed the date for deposit of the amount of Zar-e-Soim of the sale consideration. Therefore, this omission which was made by the learned Court, was not to prejudice the case of the petitioner and the petitioner had been earnestly striving for deposit of Zar-e-Soim but due to the act and conduct of Manager, the deposit could not be made. It was further submitted by the learned counsel that the order, dated 27-12-2003 was correctly passed and could not be upset by the learned Additional District Judge. To support his contention, learned counsel has referred to Muhammad Ilyas and others v. Munshi Khan 2003 CLC 1815, Ghulam Hassan v.
Jamshaid Ali and others 2001 SCM R 1001 and Jamshaid Ali and 2 others v. Ghulam Hassan 1995 CLC 957.
3. Learned counsel appearing on behalf of the respondents has laid great stress on the fact that according to section 24 of the Punjab preemption Act, 1991, the period for deposit of 1/3rd amount in any case could not be extended beyond 30 days of the filing of the suit. As per learned counsel, the plaintiff should have known this provision and must have complied with the condition laid down in the section by depositing 1/3rd of sale money within one month. According to the learned counsel, time could not be extended beyond a period of 30 days as prescribed by the aforesaid Act. He has referred Haji Muhammad Sharif v. Chaudhry Khan and 2 others 2003 YLR 1471, Mahram Khan v. Fateh Khan and 3 others 2003 CLC 1434 and Habibullah Khan v. Amir Zaman and 9 others 1995 SCM R 135.
4. After consulting the record of the case with valuable assistance of the learned counsel and hearing their arguments, I have come to the conclusion that a defective order cannot be made a plank to deprive a litigant from enforcing his rights. This proposition of law is settled that A no person shall be prejudiced by the act of the Court. Order dated 17-11-2003 had displayed that the learned Duty Judge III Class, Yazman had not fixed the date when the amount of Zar-e-soim was to be deposited by the plaintiff. Section 24 subsection (1) of the Punjab Preemption Act, 1991 has provided that when a suit for pre-emption is filed, the Court shall require the plaintiff to deposit 1/3rd of the sale price of the property in cash within such period as the Court may fix. The words "within such period as the Court may fix" (underline is mine) are material, notable and important, which cannot be lost sight of. The order of deposit of 1/3rd must require the plaintiff to deposit the aforesaid amount within a specified period. If no period is fixed by the aforesaid Court, then the party cannot suffer for the omission committed by the learned Court. The first proviso has only provided the outer limit of 30 days but has not restricted the fixation and provision of a date for deposit of 1/3rd amount earlier to the expiry of 30 days. Non-fixation of date can act as a material omission causing misapprehension to a plaintiff/pre- emptor. As the order had not specified the date, therefore, the penalty of non-compliance of the order cannot be imposed upon the plaintiff in the instant case. If fixation of date is not found in an order, then subsection C. (2) of section 24 of the Punjab Pre-emption Act, 1991 cannot be applied and the suit cannot be dismissed. Subsection
(2) of section 24 of the Punjab, pre-emption Act, 1991 has stipulated that suit of plaintiff shall be dismissed if he had failed to deposit one third amount "Within the period fixed" (line provided under these words is mine) by the Court. If we conceive the words used in this subsection, the proposition of law becomes more explicit. Penalty of dismissal is conditioned with the fixation of the period. The word "fixed" having been used in both subsections (1) and (2) of section 24 of the Punjab Pre- emption Act, 1991, therefore, in fact is supportive of this interpretation. Penalty clause of a law can be used to a situation when there is a clear order of fixation. Keeping in view the rules of interpretation of law, penal provisions are to be strictly applied in a given situation when it comes within its four corner. Therefore, the impugned order is not sustainable in the eye of law.
5. As regards the citations referred to by the learned counsel for the respondents, no doubt extension cannot be granted beyond 30 days but in a case where fixation of date has been made by the learned Court. Therefore, the above-noted and referred to rulings by the respondents are not applicable to the present facts and circumstances of the case.
6. Following the dictum laid down in the rulings presented by the learned counsel for the petitioner the impugned order passed by the learned Revisional Court on 15-4-2004 is declared illegal and unlawful. Consequently, order, dated 27-12-2003 passed by the learned trial Court below is upheld.
The learned trial Court is directed to proceed with the case in accordance with law, on its merits, and the writ petition stands accepted in the above terms with no order as to costs.