' CHAUDHARY MUHAMMAD TAJ, J.--- This appeal, by leave, is directed against the judgment and order passed by the High Court on 16-10-2003 whereby a revision petition filed against the order of the Civil Judge, Mirpur was dismissed.
2. The facts are that the appellant herein filed a suit for declaration-cum-perpetual injunction in the Court of Civil Judge, Mirpur. Alternatively, a decree on the basis of right of prior purchase was also claimed. The trial Court received the written statement from defendant-respondent No,1 and passed an order for deposit of 1/5th of the price of the suit-land. Failing to comply with the order the suit was dismissed. A revision petition filed with the High Court was also dismissed. Hence, this appeal.
3. Mr. Muhammad Ayub Sabir, the learned counsel for the appellant, contended that the orders passed by the trial Court as well as by the High Court are illegal as such those are liable to be set aside. It was argued that the order by the trial Court for deposit of 1/5th of the price was passed before filing of the written statement on behalf of defendants-respondents Nos.2 and 3 for which an application was also moved. It was further argued that though the application was accepted and the aforesaid defendants were summoned but before filing their written statement the order was passed. The appellant also requested for extension of time for deposit of 1/5th of the price. The learned counsel referred to a case reported as Hidayat Ullah and 2 others v. Murad Ali Khan PLD 1972 SC 69 in support of his assertions.
4. Ch. Muhammad Afzal, Advocate, who represented the respondents, argued that the trial Court after receiving the written statement on behalf of vendee-respondent, ordered the pre-emptor- appellant to deposit 1/5th of the price which he failed to comply as such the suit was dismissed to that extent. The learned counsel also argued that defendant-respondents Nos.2 and 3 were not necessary parties who were also deleted from the proceedings. Even otherwise, the filing Of written statement on behalf of the vendor defendants was not a precondition for such order. The learned counsel submitted that no application for extension of time was ever made by the appellant. The learned counsel referred to the following authorities in support of his assertions:--
(1) Faqir Muhammad v. Mutwali PLD 1982 SC (AJ&K) 55 and
(2) Mst. Zulaikha Khatoon v. Ch. Muhammad Yasin and 5 others 2004 CLC 1443.
5. We have heard the learned counsel for the parties and also gone through the record. The plaintiff-appellant filed a suit for declaration-cum-perpetual injunction and alternatively sought a decree on the basis of right of prior purchase in the Court of Civil Judge, Mirpur. Vendee- respondent No,1 filed his written statement on 3-5-2003 when the appellant was directed to deposit 1/5th of the ostensible price of the suit-land till next date of hearing which was fixed as 4- 6-2003. An application on behalf of the appellant for summoning defendants-respondents Nos.2 and 3, the vendors, was also moved which was accepted and a notice was issued to them. The trial Court, on the next date of hearing, dismissed the suit for noncompliance of the order of the Court when the appellant had failed to deposit the requisite amount. The order was challenged through a revision petition before the High Court which was dismissed through a detailed order.
6. The precise claim of the appellant is that before filing of the written statements' on behalf of respondents Nos.2 and 3 the order could not be passed by the trial Court for 'deposit of 1/5th of the ostensible price of the suit-land. Alternatively, it was- also argued that an oral request was also made by the appellant for extension of the time which was justified in law particularly in- the circumstances when application for summoning the other defendants was accepted.
7. So far as the contention of the learned counsel for the appellant that before filing of the written statement on behalf of the vendee-defendants the order to deposit 1/5th of the price could not be made, is concerned, has no merit. The relevant law is provided in section 21 of the Right of Prior Purchase Act which is as follows:- "21. Plaintiff may be called upon to make deposit or file security.--- (1) In every such suit the Court shall at or at any time before, the time of settlement of issues, require the plaintiff to deposit in the Court such sum as is in the opinion of the Court equal to one-fifth of the probable value of the land or property or require the plaintiff to give security to the satisfaction of the Court for the payment of a sum not exceeding such probable value within such time as the Court may fix in such order.
(2) ........................................................................................................................
(3) .....................................................................................
(4) If the plaintiff fails within the time fixed by the Court or within such further time as the Court may fix to make the deposit or furnish the security under subsection ( 1) or (2) his plaint shall be rejected or his as the case may be."
8. The provisions of law clearly provide that the aforesaid order can be made at any time before or at the time of settlement of issues, therefore, there was no compulsion that the order could only be made after filing of the written statement of vendor-defendants who were not even necessary parties and they were also deleted from the proceedings. The learned Judge in the High Court has elaborately discussed the matter and passed a lawful order. We also do not find any application or request by the appellant for extension of time. The argument was vehemently opposed by the opposite side. It is significant that even the application made for summoning the defendant- respondents Nos.2 and 3 did not contain any request made for the purpose. The necessity of extension of the time could only be judged if such request was placed on record. Proposition finds support from a case reported as Mst. Zulaikha Khatoon v. Ch. Muhammad Yasin and 5 others 2004 CLC 1443 where the following observations were made:-- "(8) So far as the provisions of section 21 of the. Right of Prior Purchase Act are concerned, it has been held time and again that these provisions arise out of a special statute which are mandatory in nature and the same are to be construed strictly. It has been observed in various authorities that the right of pre-emption is a piratical right which deprives lawful owners of their right to purchase certain property on the basis of their right of prior purchase. In these circumstances, the High Court committed no error in accepting the revision petition filed by respondent No, 1."
9. The learned counsel for the appellant relied upon a case reported as Hidayat Ullah and 2 others v. Murad Ali Khan PLD 1972 SC 69. We have no quarrel with the position resolved therein but the same does not apply to the case in hand with its distinct facts which is usefully reproduced:-- "A pre-emptor was called upon under section 22 of the Punjab Pre-emption Act, 1913 to deposit 1/5th of the pre-emption money on 6-1-1968. Prior to this date he put in an application for grant of permission to furnish security instead of depositing the amount in cash. The Court instead of disposing of the application, directed it to be heard on 6-1-1968, i,e,, the last date fixed for depositing the pre-emption amount. On 6-1-1968 the Court rejected the application but suo motu extended the time for making the deposit from 6-1-1968 to 6-2-1968. The High Court, in revision, held that in the absence of any application for extension of time, the Court had no jurisdiction to extend time.
' Held: The Court was fully competent suo motu to extend the time when it had by its own act made it practically impossible for the appellants to comply with its original order by adjourning the application for furnishing security to the 6th of January, 1968. From the language of subsections (4) and (5)(b) of section 22 it is apparent that the rejection of the plaint or the dismissal of the suit will be ordered if the plaintiff fails to make the deposit within the 'time fixed by the Court' or 'within such further time as the Court may allow to make the deposit or furnish the security'. This clearly contemplates that the. Court has the power to extend the time. This is no doubt a discretionary power, .Which like all other judicial discretions, must be exercised upon sound judicial principles, but it can by no stretch of imagination, be said that the Court has no jurisdiction to extend the time at all. The Punjab Pre-emption Act does not prescribe any procedure for obtaining such extension of time but upon general principles a Court has normally to be moved by an application of some kind, either oral or written. This does not, however, mean that the Court has no jurisdiction, in the absence of any such application, to grant a discretionary relief where the justice of the case so requires. In the absence of any provision in the Statute or in the rules made under the Statute expressly providing that the Court shall act on the application of a party it cannot be said that such an application is a condition precedent to the exercise of the power. The power does not become nugatory, if no application is made for invoking that power. If the Court could under subsection (4) of section 22 extend time, then it could do so either on the application, written or oral, of a party or even suo motu where the justice of the cause so demanded."
10. In view of above discussion, the appeal is found to have no substance in it and we have no reason to differ with the findings recorded by the High Court as such the appeal is dismissed with costs.