' SYED AFSAR SHAH, J.---The brief facts out of which the instant writ petition arises are that land measuring 24 marlas bearing Khasra Nos.82 and 99, situated in the local limits of Moza. Nar Sultan Muqarab, Sarai. Naurang, was purchased by Gul Naib petitioner/ defendant on the basis of oral sale for a sum of Rs,5000 per marla. The sale was pre-empted by Naeem Khan respondent/pre- emptor claiming his superior right of pre-emption on all the three grounds allowed by law.
2. When put on notice by the learned lower court, vendee/defendant contested the suit, inter alia, on the grounds that he is co-sharer in the land in dispute that no construction, whatsoever, has been made in the suit premises, rather after its purchase from defendants Nos.2 to 5, which was already in the knowledge of pre-emptor, he started construction over the suit-land. He also disputed the performance of Talbs on the part of the pre-emptor in accordance with section 13 of the N.-W.F.P. Pre-emption Act, as according to him he has made the same at belated stage.
3. During the proceedings conducted in the learned lower Court, the petitioner/defendant filed an application for dismissal of the suit on the ground that since the pre-emptor has failed -to deposit one-third of the sale price of the land in dispute, therefore4 the suit is liable to be dismissed. In the alternative, he also made a prayer that directions be given to the pre-emptor to make deposit of Zar-e-Soam, keeping in view the consideration mentioned in the mutation Nos.2287 and 2288, as according to him in the mutations, referred to, above, the sale consideration of the land in dispute is shown as sum of Rs,11,00,000/- and Rs,6,00,000/- respectively. He has vehemently, disputed the deposit of sum of Rs,40,000/- by the pre-emptor as Zar-e-Soam. The petitioner in his application has further asserted that probable value of the suit land has been determined in vacuum and that the order of the learned trial Court was not in line with the mandatory provisions of section 24 of the N.-W.F.P. Pre-emption Act. The application thus given was vehemently resisted by the respondent/ pre-emptor on various grounds both legal and factual. According to him he has deposited the Zar-e-Soam, as per direction of the Court and again the petitioner in his written statement has not stated even a single word neither about the sale consideration nor has raised any objection on the deposit of pre-emption amount (Zar-e-soam) by pre-emptor; that application for re-fixation of the probable value/Zar-e-Soam in view of the law on the subject is absolutely not maintainable.
4. The learned lower Court vide its order dated 20-10-2009 by allowing the application directed the pre-emptor to deposit one-third as. Zar-e-Soam of the sum of Rs,11,00,000/- sans Rs,40000/- which he has already deposited on the direction of the trial Court and aggrieved from the same, the pre-emptor filed a revision petition in the Court of learned Additional District Judge-I, Lakki Marwat. The learned revisional Court vide its order dated 2-3-2010 by allowing the petition set aside the order of the lower court mainly on the ground that no such objection was raised by the petitioner/defendant in his written statement. Moreover, in view of the expiry of statutory period which is thirty days, the impugned order is not tenable in the eyes of law.
' Aggrieved from the order of learned revisional Court dated 2-3-2010 Gul Naib Khan, the petitioner/defendant has filed the instant writ petition, mainly on the ground that the assessment made by the learned trial Court regarding probable value of the land in dispute is in vacuum; that the learned lower Court ought to have ascertained the probable value of the suit property and by not doing so it has committed gross illegality.
5. We have heard arguments of learned counsel for the parties, gone through the record of the case and perused the relevant law on the subject as well.
6. Before adhering to other aspects of the case, it will be more appropriate to refer to section 24 of the N.-W.F.P. Pre-emption Act, according to which: "Plaintiff to deposit sale price to the property. -(1) In every suit for pre-emption the Court shall require the plaintiff to deposit in such Court one-third of the sale price of the property in cash and for the remaining two-third furnish bank guarantee to the satisfaction of the Court within such period as the court may fix: ' Provided that such period shall not extend beyond thirty days of the filing of the suit: ' Provided further that if no sale price is mentioned in the sale-deed or in the mutation, the Court shall require the deposit of one-third of the probable value of the property, and bank guarantee for the remaining two-third of such probable value: 'Provided also that the plaintiff may, in lieu of bank guarantee, deposit the required amount in cash.
(2) Where the plaintiff fails to deposit one-third of the, sale price or the probable value of the property and the required bank guarantee under subsection (1) within the period fixed by the Court, his suit shall be dismissed.
(3) Where the plaintiff withdraws the sum deposited by him or the bank guarantee furnished by him under subsection (1), his suit shall be dismissed.
(4) Every sum deposited under subsection (1) shall be available for the discharge of cost.
(5) The probable value fixed under subsection (1) shall not effect the final determination of the price payable by the pre-emptor".
7. It appears from the record available on file that in this case the suit has been filed on 25-4-2009 and as per version of the pre-emptor, the suit transaction has been effected orally, but at the same time, he has alleged that the property in dispute, which is measuring 24 marlas has been purchased @ Rs,5000/- per marla and in this view of the matter, the sale consideration of the suit land comes to Rs,1,20,000/-. Keeping in view the sale consideration of the land in dispute, which the pre-emptor has mentioned in his plaint, the learned lower court directed him to deposit one-third of the above amount within thirty days. Order sheet No,2 recorded by the learned Civil Judge, further speaks about the same fact.
8. While going through the record of the case one could reach to the safe conclusion that the pre- emptor in compliance of the order of the learned trial Court .Has made deposit of sum of Rs,40,000/- within the period as directed by the Court. Later on i,e, on 23-5-2009 the petitioner/defendant moved an application with the prayer that the suit of the pre-emptor is liable to be dismissed for want of deposit of preemption amount with alternative prayer of giving direction to the preemptor to make deposit of the amount in light of the consideration mentioned in the mutation Nos.2287 and 2288. Here it is pertinent to note that the petitioner/defendant has filed his written statement on 16-5-2009 and as against that the application under consideration, as stated earlier, has been filed on 23-5-2009. So far as the Mutation Nos.2287 and 2288 are concerned, perusal of the record would show that these have been attested on 13-6-2009.
Needless to say that mere entry of mutation is not sufficient to close the proceedings of sale, which requires the attestation by the Revenue Officer and that too is in the form of an order.
9. In case titled "Hasnain Nawaz Khan v. Ghulam Akbar and another" (PLD 2013 Supreme Court 489), it was held by his lordship that: "Limitation period fixed by a statute-- Power of courts to extend such period--- Scope---Where the time (period) had been fixed by a statute, the court had no power and discretion at all to enlarge/ extend such time (Period), unless it was provided otherwise and it was permissible by or under the law---Court could, however, extend the time (Period) in appropriate cases, where it had been fixed by the Court in its discretionary power".
It may, however, be pertinent to mention here that in ordinary course the Court should provide adequate time (within 30 clays) to the plaintiff to make the deposit. But the Court under no circumstances has any discretion to allow the plaintiff or require/direct him to make the deposit beyond the period of 30 days from the-filing of the suit, as a clog in this behalf has been placed by the first proviso to the section, and thirty days time, for all intents and purposes, is the upper and the maximum limit. It is settled law that where the time has been fixed by the statute, the Courts have no empowerment and the discretion at all, to enlarge/extend such time, unless otherwise provided and it is so permissible by or under the law, however there can be no bar on the Courts, in appropriate cases, to extend the time which has been fixed by it in its discretionary power i,e, within 30 days. It may further be relevant to mention here, that as the deposit within thirty days is the clear command of the law, therefore, even where the Court, on account of omission or the lapse, has failed to specify the time in this behalf, it shall be deemed that full 30 days period has been allowed by the Court to the plaintiff to make the payment and notwithstanding such omissions (lapse), it shall be the duty of the pre-emptor himself to make the deposit within a period of 30 days from the institution of the suit, otherwise he shall have to face the consequences of section 24(2) ibid. This is the true purport and the spirit of subsection (1) when read with first proviso thereto.
10. In the present case as stated earlier the suit was filed on 25-4-2009 and on the same date direction was given to the pre-emptor to deposit one-third of the consideration, which he has mentioned in the plaint. The petitioner/defendant has filed his written statement on 16-5-2009 and on perusal of the same one could reach to an irresistible conclusion that there he has not stated even a single word about the amount/ consideration for which he made purchase of the suit property. What to talk of mentioning of sale consideration in the written statement, no objection, whatsoever, has been raised by the petitioner/defendant on the deposit of the pre-emption amount, which the pre-emptor has made on the direction of the Court. On his first appearance the defendant ought to have raised objection over the Zar-e-Soam deposited by the preemptor: 11 . So far as the determination of the probable value of the land in dispute is concerned, no doubt, the courts are not obliged to hold a detail trial within the trial and to hear the vendee after a notice, by giving subsequent direction to the pre-emptor to make deposit of one-third as additional price amount. However, in appropriate case the Court can re-fix the probable value and can extend the time/ period, but so far as the case under consideration is concerned here, the position, as stated earlier, is altogether different.
12. In case titled "Haji Bahadar Hilal v. Engineer Muhammad Ayub" (2004 CLC 1259 Peshawar) it is observed that: "Suit for pre-emption---Deposit of one third of sale price---Trial Court directed plaintiff to deposit one third of sale consideration which was Rs,36 lacs and was deposited by the plaintiff- Subsequently on application of defendants that sale transaction was that of Rs,76 lacs, Trial Court directed plaintiff to deposit one third according to said sale transaction which order had been challenged by plaintiff-Validity-Fixation of one third amount under S.24 of North-West Frontier Province Pre-emption Act, 1987, was tentative in nature and the very purpose of section 24 was to keep a check on frivolous suits and the Court would proceed with the case only when a suitable security was furnished by the pre-emptor by the deposit of cash---Actual price of suit property was yet to be determined by the Trial Court after recording of evidence and same would be payable by pre-emptor if he succeeded to establish his superior right of pre-emption before Trial Court---Impugned order of Trial' Court in absence of any authentic document and the fact that same had been passed at a time when defendant was yet to appear and file his written statement, was not in consonance with spirit of S.24 of North-West Frontier Province Pre-emption Act, 1987 and was liable to be set aside---High Court setting aside order of trial Court directed Trial Court to proceed further in the matter in accordance with law."
Similar view has been reiterated in case titled "Mst. Parveen Akhter and another v. Muhammad Sattar" (PLD 2006 Lahore 410)
"Zar-e-Soem, deposit of---Thirty days from the filing of the suit-Application for re fixation of probable value and Zar-eSoem---Maintainability---Court had no jurisdiction or discretion to extend the time on revision of the earlier order or even to direct deposit of an additional amount thereto to make up the deficiency or otherwise--- Statutory period of 30 days having elapsed, Court had no jurisdiction or discretion to order further deposit of Zar-e-Soem by revising of its , earlier order-Application for refixation of the probable value and Zare-Soem was not maintainable,"
13. Moreover, according to the proviso of section 24 of the Act, referred to ibid, if no sale price is mentioned in the sale deed or in the mutation the court shall require to deposit one-third of the probable value of the property. Admittedly fixation of one-third amount of the sale price as envisaged in section 24 of the N.-W.F.P. Pre-emption Act, is tentative in nature and the very purpose of the same is to keep a check on frivolous litigation. So far as the actual sale consideration of the suit property is concerned, the same is yet to be determined by the learned trial Court after recording the evidence, which would be payable to the pre-emptor, in case, he succeeds in proving his case. Needless to say that there is difference between probable value and market price/value.
14. While deriving wisdom from the above case-laws coupled with the facts discussed earlier and above all when the impugned order does G not suffer from arbitrariness, mis-exercise, excess of jurisdiction or material irregularity, the writ petition being without any substance stands dismissed.