' CHAUDHRY RAHIM DAD KIIAN C. J.-This appeal by leave, arise out of a pre-emption suit filed by Mohammad Said Khan appellant in the Court of Sub-Judge, Pallandri, Camp Hajira, which was dismissed on 28-11-1974 for plaintiff's failure to furnish a security bond as required by the Court. The appellant was directed on 27.6-1974 to furnish security bond to the satisfaction of the Court on 27- 8-1974. On 27-8-1974 the date for furnishing the security bond was extended to 27-10-74. On that date the Presiding Officer was on leave though the office at Camp Hajira was open. The office adjourned the case to 25-11-74 on which date the plaintiff-appellant submitted a security bond duly executed with a petition for extension of the time on the ground that the failure to furnish the security bond was due to no fault on the part of the plaintiff but because of the absence of the Presiding Officer on leave. Nevertheless without Considering the security bond the Presiding Officer rejected the application for extension on the ground that the petitioner was negligent in furnishing 4 the security bond in spite of extension being granted. The pre-emptor's first appeal before the District Judge, Rawlakot, was dismissed on 16-6-1975 and the second appeal preferred before the High Court met with the same fate on 4-12-75. It was urged before the Court of 1st instance as well as both the appellate Courts that the omission to furnish security bond on 27-10-1974 was due to absence on leave of the Presiding Officer. The learned District Judge, Rawlakot, relying on PLD 1959 Azad J & K 8, refused to interfere with the order of the trial Court as, in his opinion, the trial Court had exercised properly the powers vested in it under the provisions of Pre-emption Act. The High Court also dismissed the appeal for those very reasons and refused to interfere with the discretion exercised by the trial Court as, in its view, the pre-emptor was negligent in furnishing the security as required by the Court.
2. It was submitted by the learned Advocate for the appellant that failure of the appellant to furnish security bond on 25-10-1974 was not because of any fault on his part but it was due to the absence on leave of the Presiding Officer. The office that was open on that date at Hajira-a place of circuit sitting of the Court of Sub-Judge, Pallandri-was not competent to receive or attest security bond.
On the next date, that was fixed by the office, the plaintiff pre-emptor submitted a duly executed security bond with a request for extension of time but the suit was, according to the Advocate for the appellant, arbitrarily dismissed by the trial Court. Basing his arguments on PLD 1967 SC (Pak.)
418 he submitted that the requirements of 'cash deposit or security' contained in subsection (1) of section 21 of the Right of Prior Purchase Act which is identical to subsection (1) of section 22, Punjab Pre-emption Act, is to prevent vexatious and mala fide proceedings on the part of possible preemptor. When the pre-emptor, in the instant case, according to him, submitted in the Court a security bond duly executed, he (pre-emptor) in fact made a practical demonstration of his goodwill. Neither written statement was submitted in the instant case by then nor issues framed.
Consequently the discretion exercised by the Courts in refusing to extend the time according to his submission is contrary to the requirements of well recognised rules.
3. It was also submitted that Hajira where the case was to be heard is admittedly not a permanent Headquarter of the Court of Sub-Judge, Pallandri, but is a place where the trial Court holds its circuit sittings only now and then. No office of the trial Court functions in Hajira permanently and there is nothing on the record to show that the Presiding Officer, who was on leave on the previous date, did join back his duty at Hajira on the following day. In view of what has been submitted by the Advocate for the plaintiff it is necessary to examine whether in the circumstances of the case the Presiding Officer exercised his discretion with a view to achieve the ends and object for which such a discretion is conferred. AIR 1924 Lah. 68 and PLD 1967 SC (Pak.) 418 provide assistance for clarification of the purpose for which the Court demands deposit or security. AIR 1924 Lah. 68 says that the object of an order under section 22(1) is to guarantee vendees against frivolous proceedings on the part of possible pre-emptors. The deposit is a token of good faith', In PLD 1967 SC (Pak.) 418 while deciding the question whether the trial Court was competent to vary its original order requiring the security and to replace it by an order of deposit of 1/5th of the purchase price, it was held at page 419 : "It is well-known that the requirement of a cash deposit or security contained in the sub-section is intended to guard against vexatious and mala fide litigation, and thus to guarantee a vendee against frivolous proceedings on the part of possible pre-emptors. The deposit is a token of good faith, and equally the security for the full amount of the purchase price constitutes a guarantee that plaintiff will meet whatever demand is made for money in case his suit succeeds."
Thus it would appear that the aim and goal of the cash deposit or security required under sub- section (1) of section 21, Right of Prior Purchase Act, is to provide protection against frivolous proceedings This object could be fully attained if the security sought to be furnished on that date was found to be satisfactory ; particularly in view of the fact] that neither written statement by the defendant-vendee was submitted by then nor issues were framed and also because no further adjournment was sought for the purpose. More so because on the previous date the Presiding Officer was on leave. The Clerk, who adjourned the case, does not appear to have been authorised to receive security bonds in such cases or verify them in the absence of the Presiding Officer or extend the time. The delay appears to have been caused not by an act of the pre-emptor alone but also due to the absence of the Presiding Officer on leave. The maxims lex non cogit a disposability's (the law does not compel a man to do that which he cannot possibly perform) and Actus legis (curiae) nominal Grava bit' (an act of the Court shall prejudice no man) are the general principle of law. When the Presiding Officer on the previous date himself was absent, and Hajira, a place of circuit sitting is not the permanent seat of the trial Court and also because people of the area are illiterate the Court could well exercise its powers to extend the time ; rather stifle the prosecution and penalise the pre-emptor for omission to which the Presiding Officer has also contributed partly by remaining absent. This power to extend the time, of course, is discretionary and we think that the discretion in the matter must be exercised bona fide and with the view of achieving ends or object for which it is conferred. The word 'discretion', according to "Words and Phrases Legally Defined", Second Edition by John B. Saunders, means :- "When it is said that something is to be done within the discretion of the authorities that something is to be done according to the ru1es of reason and justice, not according to private opinion : Rooke's case (1598) 5 Co. Rep. 99b ; according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit to which an honest man competent to the discharge of his office ought to confine himself : Wilson v. Rastall (1972), 4 ' Term Rep. 757, Sharp v. Wakefield (1891) A C 173, (H.L.), per Lord Halsbury, L.C. At p.
179."
4. It is well-settled law that the Court can extend the time fixed for furnishing security under the provisions of subsection (1) of section 21 of the Right of Prior Purchase Act. In PLD 1967 Lah. 1068 the order was for making deposit of one/fifth of the probable value of the property, It was held at page 1069 that "The intention of law is that the pre-emptor should deposit the amount under clause (1) of section 22 by the date fixed for the purpose, and the Court can extend the time of deposit, but it is not to act mechanically, and has to objectively consider the circumstances which led to the delay."
' This authority further says that 'appellate Court has also the power to grant a pre-emptor an extension of the period for payment, fixed by the Court of first instance but it will exercise that power only in favour of the pre-emptor whose conduct has been bona fide'. Section 21 of the Right of Prior Purchase Act reads as follows: "21.-(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) In the case of an appeal, the appellate Court may at any time exercise the powers conferred on a Court under subsection (1).
(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 (I) or (2) his plaint shall be rejected or his appeal dismissed as the case may be."
' It is quite clear from the language of subsection (4) of section 21 of the Right of Prior Purchase Act that rejection of the plaint shall be ordered if the plaintiff fails to make the deposit or furnish the security within the time 'fixed by the Court' or 'within such farther time as the Court may allow to make the deposit or furnish security'. This clearly shows that the trial Court has power to extend the time. This view is fortified by PLD 1972 SC (Pak.) 69 wherein at page 72 it is held :- "It will be apparent from the language of subsections (4) and (5)(b) of section 22 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."
5. There is nothing in section 21 which debars a Court from extending the period Axed by it but extension should not be granted unless there are good and sufficient reasons. As discussed above, there was, in view of the absence of the Presiding Officer on leave, justification for extension of the time which power the trial Court failed to exercise without sufficient grounds.
' This power of extension of period originally fixed by the trial Court is also available to the Court of appeal under the general provisions of Civil Procedure Code contained in section 107, under which the appellate Court is vested with all those powers which the original Court possesses and can pass all orders that can be passed by the trial Court. To prevent miscarriage of justice the Supreme Court, by virtue of its plenary powers under section 42-A (1) Interim Constitution Act, 1974, can always pass orders.
After careful examination of all the facts of the case we are of the view that the object of requiring the security, in the circumstances of this case, was well served when pre-emptor, on the date fixed by office in the absence of the Presiding Officer, submitted security, bond duly executed before his suit was rejected by the Presiding Officer. We therefore, accepting the appeal, set aside the order passed by all the Courts below and remand the case with the directions that it shall be restored on its original number and after giving notices to the parties and providing time to pre-emptor for furnishing fresh security bond it shall proceed with the case in accordance with law. Cost shall follow the event.