' MASOOD AHMED SHEIKH, J.---The tilted appeal with leave of the Court arises out of the judgment of the High Court dated 20.12.2011, whereby the writ petition filed by the appellant, herein, has been dismissed in limine.
2. The facts necessary for disposal of the instant appeal are that Muhammad Rafique, plaintiff- appellant, herein, on 29.5.2010 filed a suit for possession on the .Basis of right of prior purchase in respect of the land Khasara No, 855min, measuring 15 marla, situate at Mozia Pang Peran, Tehsil Kotli against respondents Nos. 3, 4 and 5, herein, in the Court of Senior Civil Judge Kotli. It was averred in the plaint that the plaintiff is owner of the land in village Pang Peran and the land of the plaintiff is adjacent to the land in dispute. Ghulam Shabbir, respondent No,5, herein, had purchased the said land and a general power of attorney was executed in favour of Dawood Khalique, respondent No,4, herein, who, illegally sold the said land in consideration of an amount of Rs,600000/- to the respondent No,3, herein, and got the gift-deed attested and registered on 12.2.2010. In fact, the gift-deed is a sale-deed and just to defeat the right of prior purchase of the plaintiff, the gift-deed was got registered. Muhammad Khalid, respondent No,3 is a resident of Pakistan and according to law, he couldn't purchase the land in the Azad Kashmir. It was further averred in the plaint that the plaintiff is ready to pay the price of land Rs,600000/-. The respondents may be restrained to make any improvement in the land or to sell or transfer the land to anybody. After necessary proceedings, the trial Court on 29.9.2010 ordered the appellant to deposit 1/5th of the ostensible price on or before 28.10.2010 otherwise, the suit shall be deemed to be dismissed. The amount was not deposited till the fixed date. On 29.11.2010, the appellant moved an application for depositing 1/5th of the ostensible price. The trial Court allowed the same. The respondents challenged the said order through a revision petition in the Court of District Judge Kotli. The learned District Judge accepted the revision petition through order dated 7.4.2011 and dismissed the suit. The appellant challenged the said order of the District Judge by way of writ petition in the High Court. A learned single Judge in the High Court, dismissed the writ petition in limine, hence the instant appeal by leave of the Court.
3. Messrs Sardar Shahzad Ahmed Khan and Javed Najam-us-Saqib, Advocates, the learned counsel for the appellant argued that due to strike of non-gazetted staff of the lower judiciary, 1/5th amount ordered by the trial Court could not be deposited. He further argued that 1/5th amount has been deposited after permission of the trial Court on the application of the appellant-plaintiff. It was the authority of the trial Court under sections 151 and 141, C.P.C., which has been duly exercised by the trial Court by granting permission to the appellant-plaintiff for depositing 1/5th amount. It is maintained that the order of the trial Court was quite in accordance with law and the discretion exercised by it was also exercised in a judicious manner, therefore, the order passed by the District Judge as well as the High Court in exercise of writ jurisdiction is not correct, which is required to be recalled and the order of the trial Court is required to be restored.
4. Conversely, Raja Khalid Mehmood Khan, Advocate, the counsel for the respondent while controverting the arguments of the counsel for the appellant stated that the suit of the plaintiff- appellant, herein, was automatically dismissed on 28.10.2010 for non-payment of 1/5th amount in the trial Court. The appellant-plaintiff has filed an application for depositing 1/5th amount on 29.11.2010, which was filed at very much belated stage and no sufficient cause has been shown in it.
The application and the suit of the appellant-plaintiff was liable to be dismissed but the trial Court erred in law by allowing the appellant to deposit 1/5th amount after expiry of the prescribed date.
The learned counsel lastly requested for dismissal of the appeal.
5. We have heard the learned counsel for the parties and also gone through the record made available. It transpires from the perusal of record that Muhammad Rafique, appellant-plaintiff, filed a suit for possession claiming therein the right of prior purchase in the land Kheewat No, 35/36, khata No 1182/1196, survey No, 855min, measuring 15 marla situated at Mozia Pang Peeran, Tehsil Kotli, before the Senior Civil Judge on 29.5.2010. The appellant challenged the gift-deed dated 12.2.2010 through the said suit. The defendant filed written statement on 6.8.2010. The Judge in the trial Court through order dated 7,9.9.2010 ordered the plaintiff-appellant for depositing 1/5th amount ( Li7 ) of total value of the price of the land in dispute till 28.10.2010 in the trial Court. It was further ordered that in case of non-depositing of 1/5th amount within stipulated time, the suit shall be deemed to be dismissed. The appellant-plaintiff has not deposited the said 1/5th amount till 28.10.2010, which means that under the condition laid down by the Senior Civil Judge in his order the suit was automatically dismissed due to non-depositing the required amount. However, on 4.11.2010, the file was placed before the Judge trial Court due to strike of non-gazetted staff of lower judiciary, hence the case was adjourned to 28.11.2010 but due to holiday the file was presented before the Judge trial Court on 29.11.2010. During the period from 28.10.2010 to 28.11.2010, the time for depositing the said 1/5th amount was not extended by the trial Court. On 29.11.2010 the appellant- plaintiff filed an application for seeking permission to deposit 1/5th amount. The Judge in the trial Court allowed the application on the same day despite the fact that the Nazar of the Court had reported on the application of the appellant-plaintiff that 1/5th amount was ordered to be deposited till 28.10.2010, whereas, the strike was continued till 3.11.2010, even then the appellant- plaintiff has not deposited the 1/5th amount. The learned Senior Civil Judge in the trial Court while ignoring the report of Nazar has allowed the application on the sole ground that there was strike of non-gazetted staff of lower judiciary and the cases remained on index for adjournments. It is evident from the application of the appellant-plaintiff dated 29.11.2010 that there was no sufficient cause explained by the appellant-plaintiff for non-depositing the 1/5th amount or sufficient reason for non-filing of the application on or before 28.10.2010 for depositing 1/5th amount. It may also be noted here that the application of the appellant-plaintiff doesn't contain the contents for extension of B time or the reason for filing of application after considerable time. The cause mentioned by the trial Court on the application was also not sufficient. The order is not in line with the legal provisions of section 21 of the Azad Jammu & Kashmir Prior Purchase Act, 1993. It will be useful to reproduce section 21, which is as follows:-- "21. Plaintiff may be called upon to make deposit or file security.- (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 in the opinion of the Court equal to one fifth of the probable value within such time as the Court may fix in order.
(2) ........................................
(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 (1) or (2) his plaint shall be rejected or his as the case may be.
(5)
Section 21 is very much clear that if the plaintiff fails to deposit 1/5th of the consideration amount within time fixed by the Court or within such further time as the Court may fix to make the such deposit, the plaint shall be rejected. In the case in hand the trial Court fixed the time for one month in its order dated 29.9.2010 for depositing of 1/5th of the consideration amount till 28.10.2010 and on failing to do so the case shall be treated as rejected for non-depositing the 1/5th of consideration amount. The time for depositing of the said amount would have been extended if the plaintiff had filed application for extension of time before the trial Court on sufficient cause and the trial Court would have allowed the extension, but the plaintiff had not done so, therefore; the suit was liable to be dismissed. It may also be noted here that there was strike of non-gazetted staff of the lower judiciary but the judges were not on strike. They were working regularly on working days. On the other hand, there was no hurdle for the plaintiff-appellant to file application for extension of time to deposit 1/5th amount if there was sufficient cause or causes, which constrained the appellant- plaintiff to deposit the said amount within stipulated time but he failed to do the needful, hence his suit was purported to be rejected on 28.10.2010.
6. The order of the trial Court dated 29.11.2010 was without jurisdictional competence as being without cogent reasoning, therefore, the District Judge has rightly accepted the revision petition of the respondent and set aside the order of the trial Court. He has also dismissed the suit of the appellant-plaintiff due to non-payment of 1/5th amount of 28.10.2010 and the High Court has dismissed the writ petition of the appellant-plaintiff on 20.12.2013 by following the dictum of this Court in the case reported as Mst. Zulaikha Khatoon v. Ch. Muhammad Yasin and 5 others 2004 CLC 1443 wherein in para 6 it was held as under:-- "6. As a matter of fact, in the application moved by the plaintiffs, there was no request whatsoever for the extension of time. The request made in the application was to the effect that depositing of 1/5th of consideration amount would burden the plaintiffs and a lot of amount is required to be deposited which will remain blocked due to lengthy procedure for disposal of the cases. Thus, totally a new and inconsistent case was put up by the plaintiffs before the trial Court. Looking the case from another angle when the case came up before the trial Court on 21.2.2003, the trial Court ordered for depositing 1/5th of consideration amount till 21.3.2003, failing, which it was ordered that the suit of plaintiffs shall stand dismissed. Although the plaintiffs-pre-emptors moved an application before the trial Court well within time for modification of order that instead of asking for depositing the 1/5th of consideration amount, the personal surety for the said amount may be allowed to be taken from the plaintiffs but the Court on presentation of application dated 3.3.2003 asked for objections from the opposite side. However, on 30.5.2003 the trial Court rejected the application of plaintiffs but at the same time extended the time for depositing 1/5th of consideration amount. When the order was passed by the trial Court on 30.5.2003 for extension of time, the trial Court had become functus officio and had no jurisdictional competence whatsoever to pass an order for the extension of time. On the 'expiry of the date fixed, i,e, 21.3.2003, the suit filed by plaintiffs stood dismissed automatically as the suit was dependent upon the deposit of 1/5th of consideration amount. The trial Court in these circumstances had no option but to dismiss the application, filed by the plaintiffs which was done so vide its order dated 30.5.2003 but it wrongly extended the time for depositing 1/5th of consideration amount as it had become functus officio and moreover there was no prayer for further extension of time supported by some cogent reasons."
7. A perusal of the judgment of the learned District Judge reveals that by setting aside the order of the Senior Civil Judge under which he allowed the deposit of 1/5th amount at belated stage, the District Judge dismissed the suit of the plaintiff-appellant. This finding of the District Judge is erroneous and misconceived. Section 21(4) of the Azad Jammu & Kashmir Right of Prior Purchase Act, 1993, (Bik) postulates that the plaint of the plaintiff shall be rejected if the plaintiff fails to deposit the 1/5th amount of ostensible price within fixed time or extended time. The plaint of the plaintiff should have been rejected instead of dismissal. Hence, the judgment of the District Judge is modified to this extent and the plaint of the plaintiff-appellant is rejected. Our this view is supported by a recent judgment of this Court reported as Abdul Rashid Abbasi v. Jamil Ahmed Malik and 4 others 2015 YLR 1187 wherein it has been held as under:-- "...The plaintiff has to prove his bona-fide by acting an equitable manner. Subsection (3) of section 21 of the Act, 1993 (BK), in clear term provides that the amount deposited under subsection (1) or (2) shall be available for the discharge of costs and penal clause has been provided in subsection (4) that if the plaintiff fails to deposit or furnish the amount of security within time specified by the Court, the plaint shall be rejected or appeal shall be dismissed."
Thus, the appellant has failed to point out any illegality in the impugned judgment, hence the same warrants no interference by this Court.
The nutshell of the above discussion is that finding no force in G this appeal, it is hereby dismissed with no order as to the costs.