1. ' This Revision Petition arises out of a pre-emption suit brought by the respondents, Haji Samundar Khan and Mst. Banu Bibi, residents of Chowk Nasir Khan Peshawar City against the present petitioners, Khawaja Mohd. Samina Jan and Mst. Naseem Akhtar residents of Sardar Garhi, Peshawar, vendees of land measuring 3 kanals, 4 marlas out of 27 kanals and 17 marlas comprised in Khasra No, 357 in Khata No, 11/40 situate in Mahal Sardar Garhi, Tehsil and District Peshawar with one house and 13 constructed garages as well as 13 garages under construction on payment of Rs, 2,50,000 or any market price which the Court was to fix. This suit was instituted on 17-6-1978. On 21- 6-1978 the Court was pleased to pass an order for the deposit of pre-emption money amounting to Rs, 2,50,000 before 12-7-1978, under subsection (1) of section 23 of the N.-W. F. P. Pre-emption Act, 1951, for which date the notice was also ordered to be issued to the defendants. On 12-7-1978 the plaintiff's counsel was present but the Presiding Officer had been transferred, the suit, therefore, could not proceed further and the Reader of the Court fixed the case for the appearance of the parties for 30-7-1978. The Presiding Officer having not been appointed till 30-7-1978, the case was again adjourned to 28-9.1978 by a note of the Reader. On 28-9-1978 the case had to be adjourned once again under the note of the Reader for 23-10-1978 for the same reason. On 23-10-1978 Raza Ali Khan, attorney of the plaintiffs was present before the Court. The defendants having not been served, were not present. Fresh notices were ordered to be issued to the respondents for appearance on 11-11-1978. As 11th of November, 1978 was declared a closed holiday by the High Court, the file came up before the Court on 7th of November, 1978, when the Presiding Officer fixed the case for 23-11-1978, Prior to 23-11-1978 the case was transferred to the file of Mr. Attaullah Khan, Civil Judge, before whom the case came up on 23-11-1978. The learned counsel for the plaintiffs was present and the case was adjourned to 13-12-1978. On 13-12-1978 Mr Raza All Khan, the attorney of the plaintiffs was present and so was Mr Mohammad Ismail Qureshi, Advocate, who placed on the file his `Waqalat Nama' on behalf of the defendants. The case was adjourned to 6-i-1979 for filing of the written statement. On this date the defendants were allowed a further period upto 22-1- 1979 for doing the needful on payment of Rs, 20 as costs. In the meanwhile the suit was once again transferred from the file of Mr. Attaullah Khan, Civil Judge, to that of Mr. Saifullah Khan Bangash and on 5-3-1979 the parties appeared before him. An application on behalf of the petitioner-plaintiffs for the issuance of ad interim injunction against the defendants was moved before the Court and the case was adjourned to 29-3-1979 for filing of the written statements on behalf of the defendants in the application as well as in the suit. On 29-3-1979, instead of filing the written statement an application was moved on behalf of the defendants for the rejection of the plaint on the ground that the plaintiffs have failed to deposit pre-emption money within the time fixed by the Court. But the case was again transferred from the Court of Mr. Saifullah Khan to that of Mr. Ziauddin Khan Khattak before whom the hearing of the application of the defendants proceeded on different dates and finally, on 6-12-1979, the learned Civil. Judge held that the plaintiffs had deposited the pre-emption amount in accordance with the orders of the learned Senior Civil Judge, Peshawar. In this view of the matter, the Court held the application for the dismissal of the plaintiffs' suit devoid of merits and rejected the same and the case was adjourned to 5-3-1980 for filing of the written statement by the plaintiff's. ' While the suit proceeded in the manner stated above, admittedly, preemption money was not deposited by the plaintiffs before 12-7-1978 as was ordered by the Court. On 30-7-1978 an application was moved by the learned counsel on behalf of the plaintiffs alleging that on an earlier application to the Court the time for deposit of pre-emption money was extended upto 31-7-1978. A further extension of time was sought vide this application on the ground that the capital of the plaintiffs having been invested in another business venture, the amount of Rs, 2,50,000 could not be arranged by them. This application was moved before the learned Senior Civil Judge,. Peshawar, as the Court to whom the case was entrusted, was, due to the transfer of the Presiding Officer, not available. The learned Senior Civil Judge on 30-7-1978, extended the period for the deposit of the pre-emption money till the date fixed in the case. From the record it transpired that no pre- emption money was deposited even during August, 1978. The file contains yet another application on behalf of the plaintiffs again moved by their learned counsel on 10-9-1978, wherein it was contended that the time fixed for the deposit of the pre-emption money was extended upto 29-9- 1978 by the Court and that Rs, 2,50,000 being a huge amount, the plaintiffs were not in a position to deposit the whole in cash, as their money was invested in the business. It was, therefore, requested that they should be allowed to deposit a sum of Rs, 1,00,000 in cash and for the rest they may be allowed to furnish security. On 12-9-1978, the learned Senior Civil Judge allowed the request. On 20- 9-1978 the plaintiffs deposited the sum of Rs, 1,00,000 in cash and furnished Security bond against the remaining amount. It may be noted that the two applications on the file were moved in the absence of the defendants who had no knowledge of the extensions.
2. ' The vendees have now assailed the order of the learned lower Court, dated 6-12-1979, dismissing their application for the rejection of the plaint on the ground of non-deposit of pre-emption money by the plaintiffs within the time fixed by the Court.
3. ' Mr. Muhammad Ismail Qureshi, Advocate has pleaded the case of the petitioners and Mr. Z.
4. Mahfuz Khan, Advocate appeared on behalf of the defendants. They have been heard at length.
5. The record has also been perused.
6. ' The file does not contain the application of the plaintiffs allegedly having been moved to the Court for the extension of the time for deposit of the pre-emption money after 12-7-1978. Also there does not exist any application having been moved after 31-7-1978 till 10-9-1978, when yet another application was moved on behalf of the plaintiffs requesting for permission to deposit the pre- emption money partly in cash and partly by furnishing security bond. The Order sheet also does not contain any order of the Court extending time for the deposit of the pre-emption money from 12-7-1978 to 31-7-1978. There is also no indication of any order on the order sheet by any Court having extended the period for the deposit from 31-7-1978 to 28-9-1978 as alleged by the plaintiffs in their two applications which are available on the file excepting the endorsements of the Senior Civil Judge on the application dated 30-7-1978 to the effect that money may be deposited till the date fixed in the suit. The application itself contains the averment that case is fixed for tomorrow.
7. As against these allegations a clear stand was taken by the vendee defendants in their application for the rejection of the plaint that the period of deposit of money was not extended beyond 12-7- 1978 by any valid order. The vendees (now petitioners) also rebutted the claim of the plaintiffs of having moved any application before 30th of July, 1978 to any Court. It was contended by the vendee petitioners that there was no order of the Court according a further extension upto 29-9- 1978. This application for rejection of plaint was moved before the Court, as earlier stated, on 29-3- 1979. From this date to 6-12-1979, when the impugned order was passed, the plaintiffs had a period of almost 9 months available to them for substantiating their claim and for proving before the Court the factum of having obtained the extension of time through earlier applications. The plaintiffs did not make any attempt in any manner whatsoever to substantiate their claim.
8. ' A preliminary objection has been raised on behalf of the respondents by their learned counsel Mr. Z. Mahfuz Khan to the competency of the Revision Petition by relying on "Malik Hadayatullah and 2 others v. Murad Ali Khan (I). No doubt their Lordships of the Supreme 'Court have held in the cited case that it was within the discretion of the Court to grant the extension of time for the deposit of money by virtue of subsection (I) of section 23 of the N.-W. F. P. Pre-emption Act, 1951 and that the order for the extension of time being in exercise of discretion was not amenable to the jurisdiction of the High Court under section 115 of the C. P. C. With due deference to their Lordships. The case relied upon by the respondents is distinguishable on the facts of the present case. In the cited case the extension of time was granted once only by the Court before the expiry of the time originally fixed for the purpose. The Court, therefore, was held to have discretionary power to allow the extension. In the instant case, the existence of the order of the Court extending time for deposit of pre-emption money has been challenged. It is nobody's case that the Court did not possess discretion to extend time for deposit for good and valid reasons. The petitioners in this case have assailed the order of the trial Court dismissing their application for the rejection of the plaint, on the ground that the money in question was not deposited by the plaintiffs within the time fixed by the Court and that the impugned order was not a speaking order as it did not even touch the controversy raised before the Court. The contention therefore, is that the time having once expired, the Court was, on the non-compliance of the order, bound to act under subsection (4) of section 23 of the Act and had no option but to reject the plaint. In other words the impugned order is alleged to have been passed in excess of jurisdiction. Finding much force in the contention of the learned counsel for the petitioners I have no option but to hold that the case cited on behalf of the respondents has no bearing on the facts of the present case. The preliminary objection is, therefore, overruled.
9. ' Now coming to the merits of the case, as has been stated earlier the file does not contain any indication either by way of the orders appended from date to date on the order sheet or from any application that the period for the deposit of pre-emption money was extended before the approach of the last date for the same i. e. 12-7-1979. Similarly, there does not exist any order whereby an extension up to 28-9-1979 was granted before 31-7-1978.
10. ' It has been further contended on behalf of the petitioners, without conceding that there was any order of extension before 12-7-1978 or before 31-7-1978, that the extension of time under section 23 of the N.-W. F. P. Pre-emption Act could only be for some good and sufficient reasons. The plaintiffs, according to their applications on the file, had no reason to advance other than that their money was tied up in the business. Whether it was {{FOOT NOTE}}
(1) PLD 1972 SC 69 {{FOOT NOTE}} ' a good and sufficient reason was for the Court to consider before granting any extension in the period of deposit of money. As the learned Court below has failed to do so, the question will have to be determined now. In Gharib Shah v. Alam Shah and others (1) on reasons for the extension of time, it was held :- "If the plaintiff in such suits wishes the Court to exercise its discretion in his favour, he shall have to show some very strong circumstance to entitle him to this indulgence."
11. ' Again Sardar Ghulam Sar war Khan and 2 others v. Sardar Muhammad Anwar Khan and 2 others
(2) lays down that the Court is bound to examine the bona fide of the plaintiff before extending the time for deposit of preemption money. Incidentally this case is also applicable to the instant case in that the bona fide of the plaintiff was doubted in that case on the ground that application for extension of time was moved by the learned counsel for the plaintiffs and not by the plaintiffs themselves. Here also applications on file are not even signed by the plaintiffs or their attorney, but were moved by the learned counsel. Although certain facts were alleged in these applications, these did not stand supported by affidavits.
12. ' In Sultan Muhammad Khan v. Khuda Bakhsh and another (3), when the Court granted further time for the deposit of pre-emption money without giving any reason therefor it was held that the order could not be sustained and was quashed in the exercise of powers under section 115, C. P. C.
13. A pre-emptor who desires to substitute himself for the vendee is required by 111 canons of equity and justice to be in possession of the means for payment of the sale consideration to the vendee, who has entered into the bargain and whose bargain or contract is required to be defeated by the exercise of the right of pre-emption. A bona fide plaintiff while seeking his substitution for the vendee, could not come forward with the plea that because his capital has been invested elsewhere, therefore, he should be shown leniency by the grant of successive extensions of time for deposit of pre-emption money.
14. ' The sale consideration in the documents annexed to the plaint is stated as Rs, 4,00,000. In spite of this plaintiffs were ordered to deposit a sum of Rs, 2,50,000 only which was their own estimate of the market value of the said property. If plaintiffs could not arrange this lesser amount during a period of about 3 months, their bona fides in bringing the pre-emption suit cannot be said to have been established. Mere inability to arrange funds for deposit of pre-emption money would not be a sufficient or good reason for extension of time. It, therefore, follows that even if any order of the Court extending the time was passed on the stated ground, such order cannot be sustained.
15. ' The endorsement on the application of the plaintiffs dated 30-7-1978 of the learned Senior Civil Judge does not extend the time up to 28-9-1978 for deposit, although on 30-7-1978 the case was fixed for this date by the Reader of the Court as per his note appended on the order sheet, because the plaintiffs themselves had stated in the application in question that the case was fixed for tomorrow, i. e. 31-7-1978. The endorsement could, therefore, only mean extension of time till this date and no further. The permission by the learned Senior Civil Judge Peshawar on 12-9-1978 to the plaintiffs to deposit {{FOOT NOTE}}
(1) PLD 1952 Pesh. 26 (2) PLD 1971 Pesh. 170
(3) PLD 1954 Pesh. 64 {{FOOT NOTE}} ' Rs, 1,00,000 in cash and to furnish security for the rest could not operate as condonation of delay or extension of time as has been held by the learned trial Court in its order under revision.
16. ' The Supreme Court of Pakistan in, Niaz Muhammad Khan v. Mian Fazal Raqib (1) on the interpretation of section 23 of the N.-W. F. P. Preemption Act, 1951 has held as under :- "As observed by this Court in Zulfiqar Ali v. Akhtar Islam PLD 1967 SC 418 with reference to similar provisions contained in section 22 of the Punjab Pre-emption Act of 1913, the requirement of a cash deposit or security contained in subsection (1) 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. 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."
17. ' The learned counsel for the respondents has lastly urged that because of the Presiding Officer having been transferred, the Court was deemed to have been closed. Section 4 of the Limitation Act, 1908 would, therefore, according to the learned counsel, come to the aid of the plaintiffs and the time for the deposit of pre-emption money originally allowed will be automatically extended to the date Court re-opened.
18. ' This argument is fallacious because, firstly with the transfer of the Presiding Officer of a particular Civil Court, the Court does not become closed. As a matter of fact the Principal Civil Court of the original jurisdiction for the District is that of the Senior Civil Judge, in whose Court all the suits excepting those specifically ordered to be directly instituted before a particular Civil Judge, are instituted. The Senior Civil Judge, of the Area does possess the concurrent jurisdiction as a Court with the Civil Judge who is seized of the matter. The Senior Civil Judge also acts as an administrative Judge to whom other Civil Judges in the District are subordinate. The litigant is never debarred to approach the Senior Civil Judge for obtaining any such orders as to permit deposits of money or ad interim injunctions, etc. As may be sought during the absence of a Presiding Officer of another Civil Court of original jurisdiction in the area. Nor is the institution of the suits of a particular Court stopped because of the absence of the Judge Presiding the same. As far as the deposits of money are concerned, these are, even in the presence of the Civil Judge concerned, always done in the Court of the Senior Civil Judge. The said Court was, therefore, available to the plaintiffs for the deposit of the pre-emption money. Secondly, the plaintiff respondents are estopped to raise this plea by their own conduct, as they have, on more than one occasion, moved applications and obtained orders thereon from the Senior Civil Judge during the absence of the Presiding Officer of the Court concerned. {{FOOT NOTE}}
(1) PLD 1974 SC 134 {{FOOT NOTE}} ' In view of the above discussion this Revision Petition succeeds. The plaint of the plaintiff respondents is rejected for want of deposit of pre-emption money within the time fixed by the Court.
19. ' In view of the peculiar nature of the case the parties are left to bear their own costs.