SAJJAD ALI SHAH, J.---This appeal, with leave of this Court, arises from the order of the Lahore High Court whereby the learned Judge in Chambers while upsetting the order of the Additional District Judge, Ferozewala restored and remanded the suit of the respondent/pre-emptor for trial afresh.
2. The admitted facts presented before us are that the respondent/pre-emptor, on 11.8.2006, filed a suit seeking enforcement of pre-emptory rights against the appellant in respect of land measuring 110 kanals, 7 marlas, situated at Monza Qilla Sattar Shah, Tehsil Ferozewala, District Sheikhupura.
Since the plaint was accompanied with an application under Order XXXIX, C.P.C., therefore, it was placed in Court on the same day and the Court directed issuance of notices for 2.9.2006. On 2.9.2006 the Court, while directing issuance of summons for 11.9.2006, directed the private respondent to deposit the zar-e-soim by the next date of hearing. It appears that the respondent/pre-emptor, on 7.9.2006, moved an application seeking extension of time for depositing the zar-e-soim at his own risk, which application came up before the Court on 11.9.2006, and the Court, in absence of appellant, allowed the respondent to deposit the zar-e-soim by 16.9.2006. This extension in time allowing the respondent to deposit zar-e-soim beyond the period of 30 days led the appellant to file an application under Order VII, Rule 11, C.P.C. read with section 24(1)(2) of the Act, 1991 seeking dismissal of the suit on account of the respondent's failure to deposit the zar-e-soim within the statutory period of 30 days. The application did not find favour with the learned trial Court and was rejected vide order dated 18.6.2007 on the ground that the controversy regarding depositing of zar-e-soim could be settled by framing of an issue in this behalf. The appellant, being aggrieved of the said order, filed civil revision before the Additional District Judge Ferozwala which was accepted vide order dated 23.6.2010, and reluctantly the suit of the respondent was dismissed for not depositing the zar-e-soim in accordance with section 24 of the Act, 1991. This time, the respondent impugned the order of the Additional District Judge before the Lahore High Court by invoking its constitutional jurisdiction under Article 199 of the Constitution by filing a writ petition, which after hearing the parties was accepted through the impugned order dated 11.7.2011 whereby the suit of the respondent was restored and remanded to trial Court for its decision on merit strictly in accordance with law.
3. On 13.9.2012, leave was granted by this Court to examine as to whether the Lahore High Court had failed to appreciate the mandate radiating from the words used in section 24 of the Act, 1991, and has remanded the case back, which is not only against the express provisions of the statute, but also, the dicta of this Court.
4. Learned counsel for the appellant in this background contended that the period of 30 days as provided in section 24 of the Act, 1991 for the deposit of zar-e-soim is to be reckoned from the date of filing the suit which in the instant case was 11.8.2006 and under no circumstances such period of 30 days could be extended by the Court. On the contrary, subsection (2) of section 24 requires the Court to dismiss the suit on failure of such deposit. Per counsel, in the instant case, the suit was filed on 11.8.2006 and the period of 30 days provided under the law for deposit of zar-e-soim expired on 11.9.2006 and, therefore, the Court had no jurisdiction to extend the time for deposit of such amount beyond 11.9.2006 i.e. upto 16th September, 2006. On the contrary, suit of the respondent ought to have been dismissed in terms of subsection (2) of section 24 of the Act, 1991. In support of his contention that the Court, under no circumstances, had the discretion to allow the deposit of zar- e-soim beyond the period of 30 days from the filing of the suit, learned ASC has placed reliance on the judgment of this Court, in the case titled Hasnain Nawaz Khan v. Ghulam Akbar (PLD 2013 SC 489).
5. On the other hand, learned counsel for the respondent, without disputing the fact as pleaded, contended that the period of 30 days as provided under the first proviso of section 24 of the Act, 1991 for deposit of zar-e-soim is to be reckoned from the date the suit is formally registered by the Court and/or when the order of such deposit is made and in the instant case the suit was registered on 2.9.2006 by directing the respondent to deposit zar-e-soim by 11.9.2006 and, therefore, the period of 30 days was to expire on 2.10.2006. The Court, therefore, had exercised its discretion to extend the time for deposit of zar-e-soim within the stipulated time period of 30 days as provided under the law. In support of his contention that the period of 30 days is to be reckoned from the date the Court directs such deposit, reliance has been placed on the order of this Court in the case titled as Raja v. Tanveer Riaz (PLD 2014 SC 466) and to plead that the Court had the discretion to extend the time, reliance has been placed on the judgment of this Court in the case titled Muhammad Ramzan v. Muhammad Bakhsh (PLD 2012 SC 764).
6. We have heard the contentions of learned counsel for the parties and have perused the record.
7. Since the controversy revolves around the interpretation of section 24, of the Act 1991, therefore, in order to reach at a just and fair conclusion, it would be beneficial to reproduce the said section which reads as follows:- "24. Pldintiff to deposit sale price of 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 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, or the price so mentioned appears to be inflated, the Court shall require deposit of one-third of the probable value of the property.
(2)Where the plaintiff fails to make a deposit under subsection (1) within the period fixed by the Court or withdraws the sum so deposited by him, his suit shall be dismissed.
(3)Every sum deposited under subsection (1) shall be available for the discharge of costs.
(4)The probable value fixed under subsection (1) shall not affect the final determination of the price payable by the pre-emptor.
8. A bare perusal of section ibid leaves no doubt in our mind that the Court is bound to require the pre-emptor to deposit one-third of the sale price (zar-e-soim) of the property sought to be pre- empted within a period left to the discretion of the Court. However, through first proviso of the section ibid such discretion is circumscribed/restricted by a maximum of 30 days from the date of filing of the suit meaning thereby that the Court may require the pre-emptor to deposit the zar-e- soim within a period ranging from one day to thirty days but under no circumstances the Court is left with any power/discretion to allow the pre-emptor to make deposit of the zar-e-soim beyond the period of 30 days. The first proviso places a specific embargo/restriction on the powers of the Court from extending the time for deposit of zar-e-soim beyond the period of 30 days to be reckoned from the date of filing the suit beside subsection (2) provides penal consequence for not depositing the zar-e-soim within a period of 30 days by dismissal of the pre-emptor suit. This is the settled law and has been reiterated time and again by this Court in its number of pronouncements, reference can readily be made to the cases' of Muhammad Ramzan v. Muhammad Bakhsh (PLD 2012 SC 764), Hasnain Nawaz Khan v. Ghulam Akbar (PLD 2013 SC 489) and Raja v. Tanveer Riaz (PLD 2014 SC 466).
9. As to the contention that the time in accordance with the first proviso would commence from the day the suit is formally admitted by the Court and not from the date of presenting/filing the suit and/or the date when a formal order directing the pre-emptor to deposit zar-e-soim is passed. A bare perusal of first proviso reflects that the time for deposit of zar-e-soim shall not extend beyond 30 days of the filing of the suit. The term "filing of the suit" has not been defined in the Act of 1991 itself and to hold that "filing of suit" would be the day when the presiding officer after removal of all office objections directs formal registration of suit by entering it in the institution register would be against the very purposes of the Act 1991. One has to keep in mind that the purpose of section 24 of the Act 1991 is to protect the vendee from frivolous litigation and also to ascertain the capacity of the intending preemptor to purchase the property sought to be pre-empted at the time when the property was being sold. Keeping in mind the purpose of such deposit, to say that period for depositing zar-e-soim would commence from the date of registration of suit would allow the pre- emptor to prolong the foreseeable deposit of zar-e-soim by keeping his suit pending in objection which to our mind would frustrate the very purpose of the first proviso. Even otherwise, the term "file" per black law dictionary means; to deliver a legal document to the Court clerk or record custodian for placement in the official record. Likewise Rule 1(1) of Order IV, C.P.C. provides that "every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf". Additionally the explanation of section 3 of the Limitation Act also provides that "a suit is instituted, in ordinary cases when the plaint is presented to the proper officer" and, therefore, in our opinion once the presentation of plaint is accepted by the Court or the officer so appointed by the Court, it would be the date of filing the suit for the purpose of first proviso and the period of 30 days would be reckoned from that day.
10. As to the second limb of the submission i.e. when the suit after filing is not formally placed in Court for orders or when there is an omission on the part of the Court (like in the instant case) in timely directing the pre-emptor to deposit the zar-e-soim and the pre-emptor takes shelter of subsection (1) which subjects the deposit under the order of the Court, by taking a defence that since there was no order of the Court directing deposit of zar-e-soim, therefore, pre-emptor could not be penalized by invoking the provisions of subsection (2) which provides dismissal of suit on account of non-deposit of zar-e-soim within a maximum period of 30 days. Though a pre-emptor in view of subsection (1) must be ready and have in his pocket the required amount of zar-e-soim at the time of filing of suit and to show his bona fide should ensure that the order for deposit of zar- e-soim is promptly passed so its compliance be effected in terms of the first proviso. However, since the required deposit is subject to the order of the Court, therefore, in cases where Court omits to pass order or the matter is not placed in Court within the time frame as provided in the first proviso then the preemptor cannot be blamed and penalized for such non-deposit as the deposit of zar-e-soim is subject to the order of the Court and this Court in such circumstances by upholding the principle that an act of Court shall prejudice no man, has condoned such default.
Reference can be made to the case of Nabi Ahmed v. Muhammad Arshad (2008 SCM R 1685).
However, in such cases upon realizing its mistake the Court while granting time for payment of zar- e-soim would not be exercising power under the first proviso which empowers the Court to grant any period of time upto 30 days in one go or by extending the period from time to time upto the maximum of 30 days but would remedy its fault under the age old principle "Actus curiae neminem gravabit" i.e. an act of the Court shall prejudice no man, therefore, once a reasonable time is granted for deposit of zar-e-soim to remedy its mistake, the Court shall have no power to extend and grant further time. Even otherwise, time for deposit of zar-e-soim is not granted to the pre- emptor to generate fund from his resources as the pre-emptor must have in his pocket one-third of the sale price of the property sought to be pre-empted while approaching the Court.
11.In the instant case, the plaint was presented on 11.8.2006 and since the pre-emptor was seeking interim relief, therefore, the case on that very day was presented before the presiding officer who directed issuance of notices to the defendant for 2.9.2006, however, somehow the other omitted to pass an order directing the pre-emptor to deposit the zar-e-soim. It appears that the suit was formally registered on 2.9.2006 when it was fixed in Court for hearing. The Court upon realizing its mistake of not passing an order for depositing the zar-e-soim on the first date of hearing directed the deposit of zar-e-soim by 11.9.2006 i.e. exactly within the unexpired period of 30 days from the date of filing of the suit. It appears that the respondent on 7.9.2006 two days before the expiry of statutory period of 30 days moved an application seeking extension in time at his own risk for the deposit of zar-e-soim which application was placed in Court on 11.9.2006 and in the absence of appellant/vendee the Court extended the time for deposit till 16.9.2006. This extension of time for deposit of zar-e-soim after the expiry of statutory period of 30 days in the circumstances could not be sustained.
12.These are the reasons for the short order of even date whereby we, by allowing this appeal, had dismissed the suit.