' This is a revision petition under section 115 of the Code of Civil Procedure for setting aside the order of the trial Judge (Civil Judge Nowshera) dated 20-2-1980 whereby plaint of the plaintiff-petitioner was rejected on the ground of non-deposit of pre-emption amount within the stipulated period, and also for setting aside the judgment of the learned Additional District Judge Charsadda, dated 18-2-1981 whereby appeal of the plaintiff-petitioner against the above-said order of the trial Judge was dismissed.
2. This revision arises out of the following facts :- ' Awal Din, plaintiff-petitioner, filed a suit for possession by pre-emption against Awal Said etc. Regarding the property measuring 5 marlas situated in village Sardar Garhi, Tehsil Charsadda, as detailed in the heading of the plaint. He instituted this suit on 16-2-1979 and vide Order Sheet No, 2 dated 24-2-1979, it transpires, that the learned trial Judge directed him to deposit a sum of Rs, 100 as pre-emption money before 24-3-1979, the date fixed for further proceedings. A perusal of the record shows that the plaintiff-petitioner did not deposit the said amount of Rs, 100 before 24-3- 1979 and instead made an application on the said date for permission to deposit the amount and for extension of time for doing so. And ulti-. Mately, it appears, that he deposited the amount on 28- 3-1979. The defendant-respondents submitted an application on 30-6-1979 to the effect that the plaintiffs petitioner had not deposited the pre-emption money within the stipulated time, therefore the plaint may be rejected on this score alone. This application was contested by the plaintiff- petitioner and vide order dated 20-2-1980 the learned trial Judge rejected the plaint of the plaintiff-petitioner. Dissatisfied with the above order, the plaintiff-petitioner filed an appeal which was heard by the learned Additional District Judge, Charsadda, who concurred with the order of the trial Judge and dismissed the appeal, as already indicated above.
3. Learned counsel for the petitioner contended that the orders of the lower Courts are manifestly illegal and contrary to facts of the case, as such, are liable to be set aside ; that the petitioner was directed initially to deposit a sum of Rs, 100 as pre-emption money before 24-3-1979, but 23rd being closed holiday, he . Applied on 24-3-1979 for extension of time to deposit the pre-emption amount, which he ultimately deposited on 28-3-1979; that even if no deposit had been made by the petitioner before 24th of March, 1979, it will not give any right to the defendant-respondents in view of the fact that in the connected pre-emption suit the petitioner had deposited a bigger amount quite in time and in the instant case the non-deposit was due to sheer misunderstanding.
He also argued that at any rate the Court was competent in law to extend the time for the deposit of the pre-emption money ; and that the application for extension of time was made by the petitioner within the period fixed by the Court, which aspect was not properly appreciated by the two Courts below.
4. Learned counsel for the respondents heard and record perused. No doubt, the petitioner was ordered to deposit the sum of Rs, 100 in Court before 24-3s1979 and he failed to do so in time, but a look at the application of the petitioner for the extension of time shows that he could not deposit the said amount of Rs, 100 due to misunderstanding, though he had deposited the pre-emption amount as well as security, as ordered by the Court, in the connected case. On this application, the learned trial Judge asked for the report from office which was submitted to the Court but after that, there is no specific order passed by the Court. Although there is an endorsement of the office that a sum of Rs, 100 has been deposited on 28-3-1979. This shows, that the trial Judge has himself failed to pass a specific order for extension of time or otherwise on the application of the petitioner.
Even in his order dated 20-2-190 the trial Judge has failed to make any clear order with regard to the application for extension of time filed by the petitioner. On the other band, he has passed the order dated 20-2-1980 on the application of the defendant-respondents, pointing delay in the deposit of pre-emption money. 1, therefore, hold that in the absence of any specific order refusing extension of time for the deposit of the pre-emption amount and in presence of an application for the extension of time for doing so, the trial Judge was not legally correct in burdening the petitioner by rejecting his plaint. The facts of the case reported in the authority of the Supreme Court Niaz Muhammad. Khan v. Mian Fazal Ragib and relied upon by the two Courts below are distinguishable from the facts of the present case. On the other hand, the authority reported as Mehdi Khan v. Faqir Muhammad and others can be quoted with advantage in support of the contentions of the learned counsel for the petitioner. In this authority it has been held by their Lordships as under.
"Zar-e-Panjurm and deficiency in sour-fee payment of same late by one day and no application for extension of time filed-purpose of law and administration of justice being to determine controversies on merits and not to use rules of procedure for thwarting rights of citizens- Contention that no application for extension having been made lime could not be extended by one day, held, amounts to making' a fetish of technicalities-Slight delay of one day, likely to be caused by bona fide mistake, condoned:"
In the case in hand, admittedly the application for extension of time was made to the Court within the period for the deposit of pre-emption money, and it was the fault of the learned trial Judge to have not passed a specific order on the same but instead he rejected the plaint on a technical ground. So, keeping in view the above-noted authority of the Lahore High Court (PLD 1980 Lab. 110) ibid hold that the plaint of the petitioner has wrongly been rejected by the trial Judge and the lower appellate Court has also failed to take into consideration the case in its true perspective. Therefore, a party to a suit cannot be punished for a wrong act done by a Court.1 2
5. In the result, I would accept this revision, set aside the judgment/ orders of the lower Courts and remand the case to the trial Judge, with the direction to proceed with the case further in accordance with the law. No order as to costs. The parties should appear before the lower Court on 16-4-1983. PLD 1974 SC 134 PLD 1980 Lah. 110