1. MUZAFFAR ALI, J.---This revision petition is directed against the order/judgment dated 18-11-2004, passed by the learned District Judge, Gilgit, wherein the learned District Judge disagreed with the order, dated 4-7-1996 passed by the Learned Civil Judge, Gilgit and set aside the same. 'The petitioners being aggrieved from the impugned order/judgment passed by the learned District Judge, filed this revision petition.
2. The facts leading to the case are that, the present respondents/plaintiffs pre-empted purchase of the disputed land through Civil Suit No.40 of 1995 filed on 18-6-1995, against the present petitioners/ defendants, before the Court of Civil Judge, Gilgit, and the learned trial Court vide his order-sheet, dated 13-9-1995, directed the parties to submit proposed issues and the respondents are ordered to deposit 1/5th of sale price on or before adjourned date, which was 29-10-1995, and on the above fixed date, plaintiffs except the plaintiff No.3, were absent from the Court and the order of the Court to deposit 1/5th of the sale price, was not complied by them, and the learned Court extended the time for compliance of its order in respect of deposit of 1/5th of the sale price, "suo motu", but positively and the date for this purpose was fixed 14-11-1995.
3. The parties along with their counsel attended the Court on the above date and respondents tried to escape compliance of order of the learned Court for deposit of "Zar-e-Punjum" by submitting an application to furnish security, instead of depositing 1/5th of the sale price with the reason that some of the plaintiffs had gone to pasture with their cattles, as such, they could not arrange the 1/5th sale price amounting to Rs.34,000, it is pertinent to note here, that the plaintiffs are 9 (nine) in number. The learned trial Court handed over the copy of the application to the defendants and adjourned the date for replication and arguments on the application.
4. The parties argued the application pro and contra and the Court after hearing them passed the order on 4-7-1996, and rejected the plaint by refusing the application. The order passed by the learned trial Court, was assailed before the learned District Judge, Gilgit, he set aside the same and plaintiffs were allowed to deposit "Zar-e-Panjum", before the learned trial Court. Hence this revision.
5. I heard learned counsel for the parties and perused the record carefully and also have gone through the case-law cited by both the learned counsel with their assistance, but on 7-7-2005, when the case was fixed for orders, Mr. Mirza Ali, Advocate, appeared before the Court and filed an application under section 151, C.P.C. To re-hear the case as he had been engaged just on the above date by respondents/ plaintiffs to reargue the case. Since respondents/plaintiffs had been represented properly by an experienced enough counsel Mr. Javed Iqbal, Advocate, and their contention was properly presented by him, as such I turned down the application under section 151, C.P.C. In limine.
6. The learned counsel for the petitioners with the help of case-law. (1) PLD 1966 (W.D.) Bagdad-ul- Jadid page 8 (2) 1981 CLC 1989 (Lahore) (3) Tahir Jan and others v. Muhammad Afzal N.As. Chief Court dated 10-4-2002, contended that:
(i) The right of pre-emption is although recognized by law, but it is predatory and piratical in nature, as such the law givers have very consciously introduced section 21(1) and (4) in "Gilgit Baltistan Sub-Division Right of Prior Purchase Regulation 1938" (hereinafter referred Regulation) with intention to guard vexatious and mala fide litigation. In this case respondents! Plaintiffs had shown their mala fide intention by non-compliance of order of the learned trial Court, to. Deposit the Zar- e-Punjum even after extension of time for it by the learned trial Court "Suo motu", while 1/5th of the sale price was too small amount to deposit in the Court, that it was not burden on the plaintiffs, as they are eight in number, it shows their mala fide intention, therefore, the learned trial Judge has very rightly rejected their plaint by exercising his powers under section 21 subsection(4) of the said Regulation.
(ii) That it is discretion of the Court under section 21(1) of the said Regulation to direct the plaintiffs either to deposit 1/5th of the sale price or to furnish security and plaintiffs are bound to obey the direction of the Court and it is not option of plaintiffs to select one of the above modes, as such, the application moved by plaintiffs after exercising discretion by the Court, and after expiry of time, was unwarranted in law, therefore, the learned trial Court has not committed material irregularity.
7. While the learned District Judge has erred in law by holding, that, it was discretion of plaintiffs either to deposit Zar-e-Punjum or security.
8. (i.e) That the learned District Judge has misconceived the case as the case is not of extension of time for deposit of 1/5th of the sale price, but it was a case of mala fide disobedience of orders of the Court. Hence, the impugned order passed by the learned District Judge is liable to be set aside.
(1) PLD 1984 SC 289; (2) PLD 1972 SC page 69; (3) 1984 CLC 2699; (4) 1990 CLC 1915; (5) PLD 1978 Lah.
9. 453.
(i) That, to deprive a plaintiff or appellant of any relief simply because that happened to be a pre- emption matter not lawful.
(ii) That, the trial Court had powers to extend time and also could alter original order of deposit into furnishing of security, but the learned trial Court failed to exercise the jurisdiction vested in it, while respondents/appellants had shown sufficient grounds in their application, therefore, the first appellate Court has rightly set aside the impugned order.
10. (i.e) That, the learned trial Court had to reject the application in limine, if the Court was not intending to grant alternate remedy as prayed for in the application.
11. All most all of the above rulings cited at Bar by the learned counsel for respondents/plaintiffs are on the point, that a discretion do vest in trial Court in case of suit or in appellate Court in case of appeal to extend time or to alter original order of deposit whether in cash or security if sufficient cause is shown and if justice, so demands. The meaning otherwise of above observation of the learned Higher Courts is that, if a party fails to show sufficient cause in a particular case or justice demands, refusal, because of conduct of the party then the Court is well within jurisdiction to refuse extension of time or alteration of original "order" passed by it and once the Court refuses to exercise its discretion, there remains no option for the Court, but to reject the plaint, because subsection (4) of section 21 of the Regulation is mandatory in nature.
12. Keeping in view the above legal discussion, if I come to the merits of the case in hand I found that the learned Court directed respondents/plaintiffs to deposit Zar-e-Punjum Rs.34,000 on or before 29-10-1995, plaintiffs did not comply the above order on or before the appointed date and notwithstanding, no request (oral or written) was made by respondents/plaintiffs, the learned trial Court extended the time and last date for depositing Zar-e-Punjum was fixed on 14-11-1995 and respondents/plaintiffs instead of complying the order of the Court filed an application to furnish security, with the reason, that, they could not comply the same because some of the plaintiffs had gone to their pasture with cattles. So the case in hand is not of extension of time, but of alteration of original order and in my opinion alteration of original order, although within the discretion of the Court, but needs serious consideration of Court and the Courts should alter their original orders in very appropriate cases, after watching the conduct of plaintiff and facts of the case minutely. In the present case, respondents/plaintiffs have failed to show sufficient cause for altering the original order and their conduct also seems to be irresponsible and mala fide as such, the order, dated 4-7-1996, passed by the learned trial Court requires no interference, but, the learned first appellate Court has misconceived section 21 of the Regulation by holding that, the respondents/plaintiffs have discretion either to deposit Zar-e-Panjum or to furnish security, secondly that, the learned 1st appellate Court, has considered the case that of "extension of time" while the case is that of a "alteration of original order", because of above two misconceptions, the learned District Judge has granted a prayer which was not requested by the respondents/ plaintiffs.
13. What follows from the above discussion is that, there is nothing wrong with the order of the learned trial Court by which the plaint has been rejected, therefore, impugned order, dated 18-11-2004, is set aside by accepting the revisions petition and order dated 4-7-1996, passed by the learned trial Court is maintained. No orders as to costs.