' Brief facts of the case are that the sale of suit land made on 20th November, 1982 was sought to be pre-empted by the present petitioner through suit filed against two vendees, namely Jeewan and Bahadur (respondents No, 2 and 3) in the civil Court, District Jhang. After the suit was registered, learned Civil Judge ordered issuance of summons to the defendants. On 17th November, 1983, learned trial Judge directed the plaintiff to deposit 1/5th of probable sale money (Zar-e-panjam) i. e. Rs, 10,000 upto 11th January, 1984. The amount was not deposited. Instead, an application seeking extension for time was moved on 9th January, 1984. The grounds taken in support for extension of time were that the plaintiff had to obtain Rs, 16,000 from Jeewan, defendant No, 1 who had failed to pay the amount within time. Muhammad Bakhsh, brother of Jeewan defendant No, 1, instead, made a false petition to the Local Police and got "plaintiff summoned there. It was further stated in para. 5 of the petition that the local dealers who were to pay an amount to the plaintiff, had not paid the required amount. Consequently, Zar-e-panjam could not be deposited within time. In para. 7 of the petition, the plaintiff prayed that either he be permitted to file security or week's time be given to deposit cash amount. On 11th January, 1984, learned Civil Judge granted extension. Copy of the order is reproduced below :- {{URDU TEXT}} ' Again deposit was not made and an application for extension of time was moved on 20th January, 1984 stating that Malik Muhammad Ramzan, District and Sessions Judge, Sialkot, a real cousin of the plaintiff had expired on the night intervening 16th and 17th of October, 1983. The plaintiff remained busy till 28th January, 1984 in relation to his funeral etc. And consequently deposit could not be made within time. On 29-1-84 learned trial Judge again extended time and ordered that the file be put up for proof of deposit on 31st January, 1984. Order passed on 29th January, 1984 is reproduced below :- {{URDU TEXT}} ' On 31st January, 1984 the necessary deposit was made. Defendant objected to the deposit on the ground that only extension for one day was granted whereas the deposit had been made late.
Consequently the plaint was liable to rejection under section 22 (4) of the Punjab Pre-emption Act.
The case was posted for hearing arguments on 23rd February, 1984. On 22nd March, 1984, after hearing the parties, learned Civil Judge observed that the Zar-epanjam had been deposited within the extended time and consequently objections raised by the defendants-vendees were turned down. Order, dated 22nd March, 1984 was assailed in revision by the defendants in the Court of learned District Judge, Jhang. Vide order, dated 21st May, 1984, learned Additional District Judge accepted revision and rejected the plaint under provisions of Section 22 (4) of the Punjab Pre- emption Act. Learned Additional District Judge observed in his order that no sufficient grounds were shown to exist for granting repeated extensions to the plaintiff and that even that the necessary deposit was not made within the extended time.
2. Aggrieved, the correctness of the order, dated 21st May, 1984 has been assailed in constitutional jurisdiction by the petitioner.
3. I have heard learned counsel for the petitioner and examined the available record. Learned counsel for the petitioner has contended that the trial Court, after having been satisfied about sufficiency of cause granted extension of time under section 22 of the Punjab Pre-emption Act, 1930. The Court had full jurisdiction to grant extension and the matter lay squarely within its discretion. It has been emphasized by learned counsel that a discretionary order passed by the trial Court cannot be interfered in revision under section 115, C. P. C. Facts stated in the petitions seeking extensions were duly weighed by the learned trial Court and thereafter in exercise of jurisdiction vested in the Court, it proceeded to grant time to the plaintiff. The defendants/vendees, therefore, had no right to question the impugned order in revision. It was vehemently asserted that learned Additional District Judge acted in violation of the law and without jurisdiction in interfering with the orders passed by the learned Trial Court in his discretionary jurisdiction. Plaintiff was seriously handicapped and was not able to deposit the amount within time. Sufficient grounds existed in law to extend the time. Learned Additional District Judge without looking into the grounds which formed the basis for extension of time had proceeded to reject the plaint on erroneous consideration of law and facts. To support his contention that an order granting extension of time to deposit Zar-epanjam cannot be interfered in revisional jurisdiction, learned counsel has placed reliance on the case of Malik Hidayat Ullah and others v. Mured Ali Khan (1) and Umar Hayat v. Aziz Ullah Khan (2).
4. Perusal of the record reveals that the plaintiff was granted about two months time to deposit a sum of Rs, 10,000 as Zar-e-panjum in the first instance. The amount was not deposited within time and an application, as stated above was submitted stating grounds that the plaintiff had not succeeded in collecting funds from Jeewan defendant No, I (vendee) and that Muhammad Bakhsh a brother of vendee had kept him in dispute for about 8 days with local police. Further plea was raised that local dealers who had to pay him sonic amount for his sale of produce to them had not paid the amount on account of influence of defendant No, 1 prayer for personal security or extension for a week's time was made. Learned
(1) PLD 1972 SC 69 (2) P D 1956 Lah. 297 ' Civil Judge, however, vide his order, dated 1 1 th January, 1984 has observed :- {{URDU TEXT}} ' Perusal of the order shows that ten days time was granted and the case was adjourned to 29th January, 1984 for submitting proof of Zar-e-punfam. Deposit even then was not made within the extended period of ten days or maximum upto 29th January, 1984. Again a petition was made for extension of time stating that the plaintiff's cousin had expired and as such being busy with his funeral etc. Deposit could not be made. Order passed on 29th January, 1984 states that extension for one day only was granted and the case was posted for proof of deposit on 31st January, 1984.
Deposit, however, was made on 31st January, 1984. Late deposit was seriously objected to by the vendees contending that no reasonable and sufficient grounds had been shown to grant extension of time to the plaintiff preemptor and the plaint was liable to rejection. Learned Civil Judge, however, as stated above turned down the objection and held the deposit to be within time.
Learned Additional District Judge, however, interfered in revision and proceeded to reject the plaint holding that no sufficient grounds were made out for granting extensions to the plaintiff and the discretion exercised in this behalf did not proceed on sound judicial principles.
5. Under section 22 of the Punjab Pre-emption Act, the Court is required to make a direction for deposit of Zar-e-panjam at, or at any time, before settlement of issues. If the plaintiff fails within the time fixed by the Court or within such further time it as the Court may allow to make deposit he renders his plaint liable to rejection. Though the Court has jurisdiction to grant extension yet the grant of extension is not to be made mechanically without looking into the grounds/reasons stated in support of the plea seeking extension of time. It is only when sufficient grounds are A shown to exist that the extension can be granted. Discretion does vest in the Court to extend time but it is subject to existence of them sufficient cause. The answer to the question whether in a particular case, the time should or should not be extended would obviously depend on the peculiar circumstances of each case, keeping in view, of course, the consideration that right of pre-emption is predatory in its nature and constituted a drawback on the freedom of contract and for this reason the provisions of the Preemption Act have to be construed and applied strictly against the preemptor. In the instant case, initially the plaintiff was granted about two months time to make the necessary deposit. He failed to comply with the direction. In ability to arrange the funds, so as to deposit Zar-e-parjam within time, does not constitute a valid ground in law for extension of time.. It was for him to arrange money well within time to deposit Zar-e-panjam and protect his plaint from being rejected. Despite this failure, plaintiff was granted another extension and during this extended period also the amount could not be deposited. A third extension was granted for one day only but within that period also, the deposit was not made and instead deposit was made on 31st January, 1984. Extension of time under section 22 (4) for making deposit in Court may be granted to the plaintiff but for a good cause C shown. Extension cannot and should not be granted in routine and as a matter of course to cover an obvious negligent act and willful default of plaintiff.
Anyhow, in cases brought for the exercise of pre-emption rights. Which have been judicially recognized as infringing on the freedom of contract and security of title by way of a pre-datory inroad, provisions of section 22 (4) have to be very strictly construed. Right of pre-emption being an artificial right should not be protected from defeat on technical and legal defects, especially when such defect is result of pre-emptor's own negligence. Time was being given to the plaintiff again and again, or indulgently' without giving any cogent reasons and even without ascertaining as to whether the cause shown was true and constituted a valid ground for extension. Extensions in this case almost amounted to putting a premium on plaintiff's negligence. The discretion exercised in favour of the plaintiff by the trial Court did not conform to the judicial standards laid down for exercise of discretion in such matters requiring a careful examination of the reasons for the default and the basis for request of time. It is evident that orders through which extension was being granted to the plaintiff-pre-emptor were obviously passed in the absence of the vendees without any notice to them or hearing them. Plaintiffs lapse in not depositing the amount in time created a valuable right in favour of the v endees, for it lapse rendered the plaint liable to rejection. No extension could have been granted to the plaintiff in the absence of the defendants who were vitally interested in F controverting the allegations made in the application for extension. It has not been shown that the defendants were granted such opportunity. A valuable right had accrued to them by the plaintiff's negligent act, in not depositing the required amount within time. They had a right to controvert the allegations made in the petitions seeking extension for time. This right has been denied to them. No judicial order adversely affecting the rights of the other party can be passed without giving him a right of hearing refer PLD 1978 B. J.
85. In the instant case, record reveals that no such, opportunity was afforded to the defendants.
Case of Malik Hidayat Ullah and others v. Mured All Khan (1) however proceeds on distinguishable facts. As stated above, discretion vested in the Court had to be exercised in accordance with law and sound judicial principles. Exercise of discretion is capable of correction in the higher hierarchy of Courts if the same has been exercised in an arbitrary and capricious manner. When a Court purports to exercise a discretion which the law only gives it in certain specified circumstances which are not shown to exist in a particular case, the Court does no act without jurisdiction but rather with jurisdiction though with material. Irregularity. In the instant case, the Court while exercising its discretionar powers under section 22 of the Punjab Pre-emption Act had not proceeded to exercise its discretion in accordance with the law laid down for it guidance by the superior Courts of this country. It has also acted contrary to the principles of natural justice when granting extensions without affording an opportunity of hearing to the defendants who as stated above were vitally interested in controverting the grant of extension. It was a clear case of negligence on the part of the plaintiff and the repeated indulgence shown to the plaintiff by the Court to say the least was contrary to law laid down by superior Courts in this behalf. Plaintiff/pre- emptor in a pre-emption suit which constitutes a drawback on the freedom of contract has to show extreme vigilance in prosecution of his case. Any lapse on his part to fulfil the requirements of law may be sufficient to non-suit him. In the case under discussion, the plaintiff has not shown required vigilance. No good grounds existed for granting repeated extensions to him. If the plaintiff had cared
(1) PLD 1972 SC 69 ' to deposit the amount initial period of two months, was more than sufficient for it. Plaintiff's conduct as exhibited on record is extremely' negligent. Learned Additional District Judge, therefore, has rightly interfered in revision to set aside the order and consequently resultant order rejecting plaint under section 22 (4) of the Punjab Pre-emption Act, 1913 does not suffer from legal infirmity.
On a review of the entire circumstances of this case I do not think that a case for interference in constitutional jurisdiction has been made out. Writ petition therefore fails in limine.