1. ' Sarwar Khan and others sold the land in dispute to Education Town Co-operative Society Limited No, 111, College Road, Lahore, respondent, in consideration of a sum of Rs, 3,42,900 on the 14th of September, 1967. Peer Muhammad appellant filed a suit for possession through preemption against the Society. The Senior Civil Judge, Lahore, by his order dated the 14th of September, 1968 directed the appellant to deposit a sum of Rs, 68,580 as I/5th of the sale price before the 9th of November, 1968. He moved an application on the 31st of October, 1968 praying that he may be allowed to furnish security. Learned Senior Civil Judge on the 9th of November, 1968 passed the following order :- "Proceedings against the defendant are ordered ex parte.
(2) The amount of I/5th has not yet been deposited. The plaintiff has made an application for an order allowing him to furnish security instead of depositing the amount of 1/5th in Court. It is pleaded that the amount being very heavy, he has not been able to arrange for its deposit. I do not think there is any jurisdiction for allowing the plaintiff to furnish security.
(3) It will, however be in the interest of justice to extend the time for the deposit of 1/5th. The time is, therefore, extended uptil 14th December, 1968. Date for evidence shall be fixed only after the deposit of 1/5th.
2. ' The appellant then moved an application on the 22nd of November, 1968 parrying that he may be allowed to furnish bank guarantee, and the learned Senior Civil Judge passed the following order on the 26th of November, 1968 :- "The petitioner may furnish guarantee of any scheduled bank by 14th December, 1968 instead of depositing the amount of one-fifth in Court."
3. ' On the 12th of December, 1968 the appellant again moved an application for the extension of time to furnish bank guarantee. The Court refused to grant extension and consequently dismissed the suit under section 22 (4) of the Pre-emption Act on 14th of December, 1968. He preferred an appeal which was dismissed on the 24th January, 1969 by the learned Additional District Judge, Lahore.
4. This is the second appeal.
2. Learned counsel contended that the time had been extended to the 14th of December, 1968 for furnishing the bank guarantee and that, therefore, the appellant could deposit it till the end of the day and if he had failed to do so the Court could pass the order on the next date and not on the same day.
5. ' Reliance is placed on Holy Trinity Church Trust v. Ansari Bros. wherein it was held : "It is now well- settled that where a day is fixed for the performance of a certain act it can be performed up to the expiry of the last minute of the day" Reliance is also placed on Afajuddin Molla v. Abdur Rehman and Muhammad Ramjan v. Fazlul Haq where the same view was taken. There is no quarrel with the proposition as is being convassed. The position here is different. By the order dated the 14th of September, 1968 the appellant was directed to deposit 1/5th of the sale price before the 9th of November, 1968. He was thus to deposit the amount on or before the 8th of November, 1968. He failed to deposit the money before the said date. The Court could, therefore, reject the plaint under section 22 (4) of the Pre-emption Act on the 9th of November, 1968 as held in Niaz Muhammad v.
6. Fazal Raqib that "the requirement of a cash deposit or security contained in subsection (I) is intended to guard against vexation 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 (I) 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 accrued in favour of the vendee to have the plaint rejected. In these circumstances it is difficult to bold 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 bad accrued to the vendee under the relevant statute". The Court, however, on the 9th of November, 1968, after the expiry of the last date for the deposit of the amount, allowed the petitioner to deposit money uptil the 14th of December, 1968. The Court yet by another order dated the 26th of November, 1968 permitted the appellant to furnish the bank guarantee by the 14th of December, 1968. Both these orders were passed without affording an opportunity to A the vendee to be heard, who, in view of the fact that he had become vested with the right by the failure of the appellant to deposit the money, had under the law right to be so heard. It was held in Niaz Muhammad v. Fazal Raqib that the Court could not by a unilateral process "extend time and take away a valuable right which had accrued to the vendee under the relevant statute." Even under the order of extension the appellant was to furnish the bank guarantee by the 14th of December, 1968 but he asked for extension of time to deposit bank guarantee and stated in paragraph 2 of the application : "The petitioner-plaintiff had approached the Muslim Commercial Bank Limited and United Bank Limited to obtain the bank guarantee and that he had also given the draft of the bank guarantee to them : that the banks had promised to give the bank guarantee and they had sent the bank guarantee to their Head Offices for sanction, and that they were also awaiting the advice of their legal advisers. Some more time is needed for their purpose and it is very difficult to achieve this object by the 14th of December, 1968 which is the next date of hearing." The application was ordered to come up for hearing on the 14th of December, 1968. He did not furnish the bank guarantee and it is also not his case that he told the Court that he would be able to do so at any time on that day. In these circumstances, when he had made an unequivocal statement that he was unable to furnish the bank guarantee the position taken by him subsequently that the Court should have waited till the end of the day is mala fide1 2 3 4 and it belies his own position. The appellant had failed to deposit the bank guarantee and the order rejecting the plaint is unexceptionable. The appeal is accordingly dismissed with costs. PLD 1963 Lab. 489 PLD 1959 Dacca 454 PLD 1963 bacca 987 PLD 1974 SC 134