1. ' This revision petition arises out of an order of Additional Sub-Judge, Kotli, dated 9-5-1979 whereby despite failure of plaintiff pre-emptor to furnish security of Rs, 4,000, ostensible price of land, within specified time as envisaged under section 21(4) of the Right of Prior Purchase Act extension was allowed.
2. ' The facts of the case are that Muhammad Sadiq father of plaintiff-respondent, alienated land measuring two kanals and for marks, in Survey No, 1189, situate in village Darkote, Tehsil Kotli, for a sum of Rs, 4,000 vide sale-deed dated 17-4-1977. The plaintiff averred that the price of land entered in the sale-deed was fictitious one as actual price paid was Rs, 3,000. The plaintiff's right was admitted by the defendant vendees. However, dispute on real price continued. On 204.1979, the plaintiff-pre-emptor was directed to furnish security for a sum of Rs, 4,000 on or before 20-3-1979.
3. The plaintiff failed to comply with the direction of the Court. On this date, the Presiding Officer was on leave. The case was adjourned to 27-3-1979, when defendant-vendees applied for rejection of plaint as envisaged under section 21(4) of Jammu & Kashmir Right of Prior Purchase Act (corresponding to section 22(4) of the Punjab Pre-emption Act). The case was adjourned for arguments to 4-4-1979. On the request of the counsel for the plaintiff, further date was fixed for arguments as 9-4-1979. On 9-4-1979, an application for extension of period for submitting security bond was presented. It was stated that on account of illness, the plaintiff could not comply with the direction of the Court. The case was further adjourned for arguments to 14-4-1979, 18-4-1979 and 26-4-1979. Ultimately, further extension] was granted to the plaintiff for furnishing security on or before 25.5-1979. The extension was allowed on the consideration that on the date i,e, 20-3-1979 fixed for furnishing security, the Judge was on leave and exceeding dates were fixed for arguments on the question of consequences for plaintiff's failure to comply with the order of the Court.
4. ' Mr. Shahid Rathore, the learned counsel for the petitioner argued that the impugned order being based on the ground other than one alleged by plaintiff Was arbitrary and without jurisdiction. He cited PLD 1965 Lab. 394, PLD 1967 Pesh. 319, Mr. Muhammad Akram Khan, the learned counsel for the respondents urged that the plaintiff-pre-emptor being minor, was ward of the Court. Therefore, the lower Court rightly protected the rights of the minor by granting extension to produce security.
5. In support of his contention, he relied on PLD 1972 SC 69, PLD 1971 Azad J& K 17, PLD 1970 Azad j & K 109.
6. ' It is important to state that the plaintiff expressly alleged in his application that he was sick and consequently failed to comply with the direction of the Court in providing security within fixed time.
7. The learned Judge did not discuss the cause alleged by the plaintiff. He was persuaded by the reason that on the date, security was to be given, he was on leave. Mr. Muhammad Akram, the learned counsel for the respondents introduced a new ground in his argument and pressed that the pre-emptor, being minor, was entitled to extension despite there being no other sufficient cause for failure in compliance. Thus three-pronged grounds are advanced in support of impugned order.
8. ' Before reaching any conclusion, it is deemed advisable to examine age-old law on the point, under section 21(4) of the Act.
9. ' In Niaz Muhammad Khan v. Mian Fazal Raqib (1), the pre-emptor was ordered on 9-4-1966 to deposit in cash Rs, 15,000 by the next date and to furnish security flit the remaining Rs, 14,000, within three days. The cash was deposited within specified time but the security was furnished beyond the fixed period i,e, on 5-5-1966. It was attested and accepted by the Court on that very day. No application for extension was made. The defendant-vendee made an application for rejection of plaint on the objection that the plaintiff failed to comply with the direction of the Court. This application was rejected on the ground that failure of the plaintiff was due to some misunderstanding of the order of Court and that in any case the time must te.; deemed to have been extended by attesting the bond on 5-5-1966. On revision, the High Court disagreed with the finding of the {{FOOT NOTE}}
(1) PLD 1974 SC 134 {{FOOT NOTE}} ' trial Court and consequently rejected the plaint. On appeal against the decision of the High Court, it was held as under :- "The requirement of a cash deposit or security contained in subsection (1) of section 23 of the N.-W.
10. F. P. Pre-emption Act. 1950 is intended to guard against vexatious mala fide litigation, and thus to guarantee a vendee against frivolous proceedings on the part of possible preemptors. If the order made under subsection (1) is not complied with, then the consequence of such non-compliance, according to subsection (4), is that the plaint shall be rejected. It would thus be seen that once failure to comply with the order has occurred on the part of the pre-emptor, a right accrues in favour of the vendee to have the plaint rejected. In these circumstances it is difficult to hold that by the unilateral process of attesting and accepting a deposit or security, after the expiry of the specified period, the Court could by implication extend time and take away a valuable right which had accrued to the vendee under the relevant statute. The Court cannot be deemed to have extended the time fixed by it for furnishing security under section 23(1) of the Act merely by accepting the security after the specified period. The time must be extended by an express order made after application of the mind to the circumstances necessitating extension."
11. ' In Malik Hadayat Ullah and others v. Murad Ali Khan (1), the proposition was that the plaintiff-pre- emptors were directed on 17-11-1967 to deposit `Zar-e-Panjam' i,e, 1/5th of the pre-emption money amounting to Rs, 14,000 by the 6th of January 1968. On 5th December, the plaintiff applied for permission to furnish security instead of depositing cash, as directed by the Court. On 6th of December, the Court instead of the disposing of the application for permission to furnish security, adjourned it to 6th of. January, the date fixed for suit. On this date, the application was taken .Up first and was rejected. However, the learned Judge extended period for deposit of cash up to 6-2- 1968, consequently cash was deposited accordingly on 5-2-1968. The defendant-vendee applied on 5-3-1968, for rejection of plaint under section 22(4) of the Pre-emption Act. The application of the vendee was rejected. The defendant-vendee went up in revision to the High Court. The learned Judge of the High Court, on the ground that extension in absence of prayer, or application was without jurisdiction and that extension could be allowed on proof of sufficient cause, rejected the plaint. When matter came up before the Supreme Court, it was observed as under :- "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 {{FOOT NOTE}}
(1) P D 1972 SC 69 {{FOOT NOTE}} ' stretch of imagination, be said that the Court has no jurisdiction to extend the time at all."
12. ' In Niaz Ali v. Ibrahim (1), it was held that discretion for extending time for deposit of 1/5th of the pre-emption money or for making up deficiency in court-fee was not to be exercised unless good cause or otherwise or matters affecting his condition such as poverty or physical inability could hardly be adduced as sufficient cause in pre-emption cases. The ground that the plaintiff on account of elections to the National Assembly could not deposit the amount, was not considered sufficient cause and consequently extension was refused.
13. ' In Ghulam Sarwar Khan v. Muhammad Anwar Khan (2), the pre-emptor instituted a suit in the Court of Civil Judge, Haripur on 18-11-1965 when the trial Court ordered for deposit of Rs, 2,000, pre- emption money before 9-12-1965. On 9-12-1965, the plaintiff' failed to deposit the amount but the counsel for the plaintiff moved an application for extension of time on the ground that the plaintiff was employed at Peshawar and on account of `Icam ilmi', could not deposit the amount. By the same date i,e, 9-12-1965, extension was allowed up to 11-12-1965 ; consequently, deposit was made on.10-12-1965. An objection on the point was taken in the written statement of the defendant- vendee. The suit was dismissed on merits. On appeal before the District Judge, a decree for possession was passed in favour of the plaintiff. On coming of matter to the High Court, the only law-point raised on behalf of vendee pertained to failure of pre-emptors to deposit amount within the time fixed by the trial Court. Mr. Justice Shah Zaman Babar was of the opinion that the trial Judge had not applied his mind to the bona fides of the plaintiffs or their counsel in submitting application for extension on the lame excuse and granted extension without good or sufficient cause. Extension of time, under the circumstances, was held as illegal and as such the plaint was rejected. The opinion is reproduced as under :- "It is well settled proposition of law that the discretion allowed to the Court to extend time is absolute and unqualified. The Court has power to extend the period fixed by it, even after the expiry of that period. But the Court while allowing the extension should apply its mind and the discretion must be exercised judicially and not arbitrarily, for good and sufficient reasons, only in favour of pre-emptor, whose conduct has been bona fide."
14. ' In Muhammad Azam Khan and another v. Ditta and others (3), on institution of a suit, the trial Court ordered the plaintiff under clause (1) of section 22 of the Punjab Pre-emption Act, to deposit 1/5th of the pre-emption money by 17th of January 1963, and deposit was made on 19-1-1963 i,e, two days later to the date fixed. Deposit was accepted conditionally subject to plaintiff's risk. One of vendees raised objection on 6-2-1963. On that very date, the plaintiff submitted an application for condonation of delay on the ground that deposit could not be made in time due to negligence of the plaintiff's counsel. This application was rejected on that very day as delay was not condoned.
15. However, an issue relating to vendee's objection alongwith issues on merits was framed. On decision on merits, the trial Court held that the plaintiff had superior {{FOOT NOTE}}
(1) PLD 1976 Lab. 1057 (2) PLD 1971 Pesh. 170
(3) PLD 1967 Lab. 1068 {{FOOT NOTE}} ' right to pre-empt, but rejected the plaint on the ground of failure to deposit 1/5th of the value of property within time fixed. On appeal, the District Judge was of the view that by inviting evidence on merits, the trial Court impliedly extended time for deposit of 1/5th of the price and decreed the suit. When matter came up before Mr. Justice Sardar Muhammad Iqbal, in second appeal, he dismissed the reasoning of District Judge and after dealing with all the points, upheld the judgment of the trial Court. The learned Judge observed :- "It is only for a sufficient cause that a time for making the deposit under section 22 of the Punjab Pre-emption Act, 1913 can be extended ; because the object of an order under clause (1) of section 22 is to guarantee vendees against frivolous proceedings on the part of the possible pre-emptor.
16. The deposit is a token of good faith. 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. An 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 laud it exercises that power only in favour of the pre-emptor whose conduct has, been bona fide."
17. ' In Abdul Wahid ,r. Ibrahim (1), the suit was instituted on 23-2-1965. On 24-2-1965, the trial Judge summoned the defendants for 30-3-1965 and directed the plaintiff to deposit 1/5th of pre-emption money before 30-3-1965. On that date, money was not deposited and an application for extension of time for one day was made. It was stated that although money was provided by the plaintiff to his counsel, yet is could not be deposited in time, due to misunderstanding of the pleader to the effect that the money could be deposited on the 30th March. The trial Judge rejected the application on the same day holding that no satisfactory ground had been shown for extension of time ; consequently the plaint was rejected under section 22(4) of the Pre-emption Act. On appeal, while confirming the finding of the trial Court it was held : "We consider that it is not necessary to refer at any length to the cases cited by the learned counsel, for the reason that the law is clear, namely, that a discretion does 'vest in the Court to extend time if sufficient cause is shown, and that if the amount is not deposited within the time originally fixed or within the time so extended, the plaint shall be rejected in terms of subsection (4) of section 22 of the Pre-emption Act. The answer to the question whether in a particular case the time should or should not be extended would obviously depend on the peculiar circumstances of the case, keeping in view, of course, the consideration that the right of pre-emption is predatory in its nature and constitutes a drawletck on the freedom of contract, and for this reason the provisions of the Pre-emption Act have to be constrained and applied strictly against pre- emptors.'"
18. ' In Mian Akhtar Islam v. C h. Zulfiqar Ali and another: (2), in a preemption suit, the trial Court directed the plaintiff to put in under section 241), Punjab Pre-emption Act, 1913 a security bond for one-fifth of the sale money by the 30th of July 1959. On this date, an {{FOOT NOTE}}
(1) PLD 1966 B .1 8 (2) P D 1965 Lah. 394 {{FOOT NOTE}} ' objection having been taken to the sufficiency of the stamp on the security bond filed by the pre- emptors the Court made an order to the effect that the defendant's counsel objects to the stamp on the security bond, and, therefore, the case should come up for arguments on the 11th of September 1959. Immediately below this order, there appeared another order of the same date saying "P. S. The plaintiff wants to put in Zar-i-Panjam. The Zar-i-Panjam in cash should be deposited by the next date fixed". In pursuance of this order, the Zar-i-Panjam was deposited on the 2nd of September 1959 under orders of the Court. Against this order of accepting Zar-i-Panjam in cash after an order having been made to put in security bond at an earlier date, the vendee preferred a revision petition in the High Court which was dismissed in Iimine on the 10th of December 1959. In the trial Court, however an objection was raised by the vendee that the pre- emptor had not complied with the order of the Court in executing security bond on a proper stamp-paper within time and, therefore, the plaint was liable to be rejected under section 22(4) of the Punjab Pre-emption Act, 1913 This objection was resisted by the pre-emptor. The trial Cotter upheld the objection of the vendee and rejected the plaint under section 22(4) of the Punjab Pre- emption Act. The pre-emptor's appeal against this order succeeded and the judgment of the trial Court was set aside and the case was remanded for further proceedings. Against this order the vendee went up in appeal to the High Court. The High Court accepted appeal and held :- "The security bond under section 22 of the Punjab Pre-emption Act is to be stamped both under the provisions of the Stamp Act and the Court Fees Act. The security bond was patently insufficiently stamped. No attempt was made by the respondent to make up the deficiency by the appointed date. There was no compliance of the order of the Court passed on the 14th of May 1959. The subsequent order altering the security bond into cash deposit was erroneous in law as the Court having allowed the plaintiff to furnish security in the first instance, it was left . With no power to direct him to make a deposit of one-fitlh of the sale money, nor could the period fixed for filing security bond be extended under the provisions of the Punjab Pre-emption Act,"
19. ' In Shamas-uz-Zamen and others v. Abdul Ghajoor (1), on 3-11-1965, the plaintiff-pre-emptor was ordered to deposit Zar-i-K humas i,e, 1/5th of the sale price by the next date i,e, 29-1-1966. By this date no deposit was made. The Judge was on leave and the case was adjourned to 16-4-1966. On 15-4-1966, the plaintiff made an application showing that he had been directed to deposit the `Zar- e-Khumas' and that he had brought the money, as such an order may be math: to deposit the money. The Sub-Judge wrote an order on the same day "allowed". The suit was decreed. The defendant-vendees raised an objection before the District Judge that the plaintiff failed to comply with the order of the trial Court in depositing the amount within the time fixed. There was no prayer for extension of period and in this view, the plaint was liable to be rejected as provided under section 21(4) of the Right of Prior Purchase Act. The District Judge upheld the objection and rejected the plaint accordingly. On appeal before the Single Judge of this Court, the learned Judge observed that on the date fixed for deposit of amount, the trial Judge was on leave and the plaintiff applied for extension of time for depositing the amount which {{FOOT NOTE}}
(1) P D 1971 Azad & K Y6 {{FOOT NOTE}} ' was allowed. When the matter came up before a Division Bench, it was held :- "The plaintiff had been required by order dated 3-11-1965 to deposit the Zar-e-Khumas by the next date, 29-1-1966. On 29-1-1966 the learned Sub-Judge was on leave and the case was adjourned to 16-4-1966. The plaintiff made his application on 15-4-1966 showing that the order had been passed requiring him to deposit the Zar-e-Khumas, and that he had brought with him the Zar-e-Khumas. It is requested that an order be passed to take in the deposit. The application shows that the plaintiff-pre-emptor was making a request for extension of time and the learned Sub-Judge granted extension when he passed the order "allowed". Subsection (4) also requires that the plaintiff shall make the deposit within the time fixed by the Court or such further time as the Court 'may allow'. The case cited by learned counsel for the appellant has no bearing on the case before us because that case deals with subsection (5), clause (b) and not subsection (4). The case before us is covered by subsection (4). We hold that the `Zar-e-Khumas' had been deposited within such further time as the Court bad allowed."
20. ' It may be stated that in this case the point relating to "sufficient cause" was not dealt with expressly as it was discussed in cases referred herein.
21. ' In Ghalib Shah v. As/am Shah and others (1), on 2Ist July 1947, the pre-emptor was directed to deposit Rs, 8,000 on or before the 18th of September 1947. On 19th September, the plaintiff made an application that he was prepared to deposit Rs, 5,800 and as regards rest, he was prepared to put in security bond. The trial Judge ordered that the application should come up on the date fixed I e.
22. Next day. Meanwhile, the Presiding Officer was transferred, the succeeding Judge rejected the plaint on 2nd of October 1947, on the ground that the plaintiff failed to deposit the amount on 18th September. On appeal, the suit was decreed on the opinion that as the plaintiff was prepared to deposit Rs, 5,800 and furnish security for the rest, the suit could not be dismissed. Mr. Justice Muhammad Shafi upheld the view of the trial Court and observed :- `''Under section 22 of the Punjab Pre-emption Act, if the plaintiff fails, within the time fixed by the Court to deposit a certain amount, his plaint is liable to be rejected. The Court, however, has got the power to extend this time, but then it should do it for good and sufficient reasons. The law of pre- emption is a creation of a statute and is an artificial right which has the result of defeating the legitimate and legal contract. There are, therefore, no equities involved in it. If the plaintiff in such suits wishes to the Court to exercise its discretion in his favour, he shall have to show some very strong circumstance to entitle him to this indulgence."
23. ' The Judicial consensus leads to the principles as "(I) It is incumbent on pre-emptor to make deposit cash or furnish security for pre-emption money, as directed by the Court under section 21(1) within the time fixed.
(2) Failure to comply with the direction of the Court shall result in rejection of the plaint. {{FOOT NOTE}}
(1) P L 1) 1952 Pesh. 26 {{FOOT NOTE}}
(3) On failure of plaintiff in compliance with the order, a right accrues to the vendee to get the plaint rejected.
(4) Grant of extension in the time is a discretion of the Court, but this discretion is restricted in the sense that it is to be exercised on proof of good reasons or sufficient cause, like other judicial discretions, and not in arbitrary manner.
(5) An order of allowing extension of time, should be express. An imaginative and implied order is undesirable."
24. It is now a settled principle that on failure of pre-emptor to deposit 1/5th' of the value of the property or to furnish security within time fixed or within further time ordered by the Court, under section 21(1) of the Right of Prior Purchase Act, shall entail rejection of plaint or dismissal of appeal, as the case may be. Grant of extension, undoubtedly, is discretion of the A Court, but discretion is to be exercised in judicial manner. The pre-emptor seeking extension had to show good or sufficient cause for indulgence of the Court.
25. ' In the present case, the plaintiff failed to furnish security within the time fixed i,e, by 20-3-1979. On this date, the learned Judge was on leave and the case was adjourned to 27-3-1979 when the counsel for the parties were present and application for rejection of the plaint was moved by the defendant-petitioner. There was no choice with the trial Court except to reject the plaint. It is evident that by 27th of March, no prayer for extension of the period was made by the plaintiff, nor any extension was allowed suo motu. Hence further proceedings were illegal and without jurisdiction.
26. It is important to state that in the application for extension of period. The plaintiff submitted that security could not be furnished within specified time on account of his illness. This reason was ignored by the trial Court and extension of time was allowed on the ground not relied by the plaintiff, whereas the plaintiff pleaded illness. The Judge held that the order was not complied with, as he was on leave. This is sufficient to show that the trial Court failed to apply its mind to the reason advanced by the party and took on its own to show the cause. It is duty of the (Court to give decision on the basis of grounds alleged or sufficient cause shown by the party and not to import its own grounds.
27. ' Mr. Muhammad Akram Khan, the learned counsel for the plaintiff-respondent, supported the impugned order on, altogether, a new ground, inconsistent with the pleas taken in the application or view held by the lower Court. He argued that the plaintiff being minor, was ward of the Court. His mother failed to give security within fixed time. This negligence on the part of the next friend of the minor may not be allowed to the detriment of the minor. He supported his argument by referring Suleman Khan v. Feroze Khan and others (1). It is correct that the pre-emptor is minor and the suit was instituted through his next friend. No fraud, collusion or mala fides were asserted against the next friend, even at this stage. The mere fact that the plaintiff being minor, failed to furnish security, was not a strong ground for allowing extension in the time. This explanation further loses weight, as it was neither alleged nor relied upon by the lower Court. A similar proposition was settled in Gian Chand v. Hem Raj and another (2). A minor under guardianship, of his mother, sued by pre- emption. It was ordered on 19th August 1924, that he should deposit 1/5th of the purchase money or furnish security on or {{FOOT NOTE}}
(1) P L p 1970 Azad J& K 109 (2) AIR 1927 Lan. 776(2) {{FOOT NOTE}} ' before 13th October. The Judge being ill, could not attend the Court on this date, as it so happened in the case in hand, and the case was adjourned to 17th of October. No deposit was made or security furnished on 17th October and the case was again adjourned to 10th of November as one of the defendants had not been served. Meanwhile, new Judge had arrived who recorded the statement of the Vakil of the plaintiff to the effect that a surety brought two days earlier was sent back by Clerk of the Court and later on, the Judge was transferred. At that very time, Vakil wrote security bond, making himself liable as surety. Under the circumstances, the Judge refused to extend the time and rejected the plaint. In appeal, two grounds for extension of time were alleged, first that the plaintiff was minor ; and secondly, that the mother of the plaintiff through whom he sued, was a `pardanashin' lady and this was a sufficient cause for grant of extension of the time. M.
28. Justice Addison, J., held "The fact that the appellant is a minor, is no reason why the time should have been extended.
29. Similarly, it cannot be said that his guardian was a Pardanashin' lady in the strict sense of that term. There are no other reasons why time should be extended. I am in entire agreement with the findings of the Courts below and consider that they have exercised their discretion properly."
30. ' PLD 1970 Azad J & K 109, was not applicable to the present case as in that case the proposition did not relate to section 21(1) and (4) of the Act. In that case, compromise resulting in withdrawal of suit, instead of retirement of the next friend, was allowed. The order of allowing withdrawal of suit detrimental to the minor, was considered ill conceived and was set aside. It was in that context that it was held that the Courts ought to he on guard and satisfy their conscience that withdrawal was for the benefit of the minor.
31. ' In view of my aforesaid observations, I am persuaded to hold that the lower Court failed to exercise its discretion in a judicial manner. The impugned order being 'perverse to law cannot be maintained. Therefore, the revision petition is accepted, the order of the lower Court allowing extension is set aside and consequently the plaint is rejected. However, in view of special circumstances, the parties are left to bear their own costs.