This is an appeal by defendant-vendees from the judgment of the lower appellate Court, decreeing the plaintiffs' claim for pre-emption of the land in suit.
2. Sardar Muhammad Anwar, Sardar Muhammad Safdar Khan and Sardar Muhammad Akhtar Khan, sons of Sardar Muhammad Akbar Khan of village Kot Najibullah, Tehsil Haripur, District Hazara, sued Sardar Ghulam Sarwar Khan, Sardar Abdul Samad Khan, sons Mst. Shah Jehan, daughter of Sardar Ali Bahadur Khan, of the same village, for possession by pre-emption of the equity of redemption of Khasra No, 2961/621, measuring kanals 7 marlas with share of Shamilat etc. on payment of Rs, 1,000 situate in village Kot Najibullah. From the averments in the pleadings of the parties, the following issues were framed:-- (1)Whether the plaintiffs have got a cause of action?
(2)Whether the plaintiffs are estopped from suing?
(3)Whether the defendants have improved their position, if so, with what effect?
(4)Whether the plaintiffs have got a superior right of pre-emption?
(5)Whether a sum of Rs, 6,000 including the mortgage charge was fixed in good faith or actually paid?
(6)Market value?
(7)Relief?
3. The Civil Judge, Haripur by his judgment dated 5-10-1968 in view of his finding on issues, 1, 3 and 4, dismissed the plaintiffs' suit, leaving the parties to bear their own costs.
4. The plaintiffs took appeal before the District Judge, Hazara. The appellate Court by its judgment dated 8-2-1969, accepted the appeal and granted the plaintiff-appellants decree for possession through' pre-emption on payment of Rs, 6,000 leaving the parties to bear their own costs.
5. The only law point of importance raised by the learned counsel for the defendant-appellants is that the plaintiffs having failed, within the time fixed by the trial Court, to deposit the pre-emption money in Rs, 2,000, as required by section 23(4) of the N.-W. F. P. Pre-emption Act, 1950 (hereinafter to be called as the Act), the Court should have forthwith rejected the plaint. The learned counsel for the plaintiff-respondents urged that the defendants have acquiesced to the order, have not challenged the same order in revision, and as such the order of extension of the period for deposit of the pre-emption money has become final.
6. The facts connected with the point are as follows:-- The plaintiffs instituted the pre-emption suit on 18-11-1965. The plaint filed by the three plaintiffs was by Sardar Muhammad Safdar Khan plaintiff No, 2 in person and Mukhtari-Am of plaintiff No, 1 Muhammad Anwar Khan and plaintiff No, 3 Sardar Muhammad Akhtar Khan through Malik Bashir Ahmad Khan, Advocate, Haripur. On the same day viz. 18-11-1965 the Civil Judge, Haripur entertained the suit through the counsel for the plaintiffs and ordered that pre-emption money in Rs, 2,000 be deposited by the plaintiffs before 9-12-1965. The defendants were also summoned for this date. On 9-12-1965 the counsel for the plaintiffs and defendant No, 1 Sardar Ghulam Sarwar Khan were present. The plaintiffs had not deposited the pre-emption money as ordered. The counsel for the plaintiffs submitted an application for extension of time for deposit on the ground that the plaintiff was employed in Peshawar and that he was informed to deposit the pre-emption money but he on account of "kam " could not deposit the pre-emption money. By order of the same date viz. 9-12-1965 the trial Judge granted the request and extended the time for deposit of the pre-emption money up to 11-12-1965. The counsel for the plaintiffs submitted an application for permission to deposit the pre-emption money in Rs, 2,000. On this application the trial Judge ordered, manifestly, on 10-12-1965 that a sum of Rs, 2,000 be deposited. The challan of cash paid (at page 18 of the file) shows that Sardar Muhammad Anwar Khan through Malik Bashir Ahmad, Advocate tendered the money and it was deposited on 10-12-1965 in the Treasury. The defendants gave their written statement dated 9-12-1965 on 11-12-1965 in Court. One of the preliminary objections was that the pre-emption money had not been deposited on the date fixed. Issues were not framed on 11-12-1965 because defendants had submitted application for stay of the suit under section 29 of the Act, on the ground that the defendants have improved their position. The suit was stayed vide order dated 11-12-1965, and restored vide order dated 2-7-68. Issues were framed on 24-7-68. A note dated 24-7-1968 purporting to be in the hand of the trial Court, on the margin in the written statement by the side of preliminary objection "Jim" about the non-deposit of the preemption money on due date by the Court, shows that this preliminary objection and the preliminary objection "daal" were abandoned. However, there is no application or statement on record in respect of the abandonment of the preliminary objections nor any such application or oral request of the defendants with regard to the abandonment of the two preliminary objections has been mentioned in the order sheet No, 10 dated 24-7-1968. In appeal by the plaintiffs the question was re-agitated. The learned appellate Court in para. 5 of the judgment has observed :-- "The learned counsel for the respondents however, while conceding this proposition of law, has tried to support the decree of the lower Court on the following three grounds :-
(1) The appellant-pre-emptors were directed by the lower Court on 18-11-1965 to desposit the pre- emption money of Rs, 2,000 before the next date of hearing which was 9th of December 1965, and that on that date an application for extension of time was made and extension of time granted which, according to the learned counsel, could not be done, because the period for deposit of pre- emption money had already expired on 8-12-1965. Granting of extension on 9-12-1965 would mean allowing fresh period for the deposit of the pre-emption money which the law does not permit. The argument, on the face of it, is completely misconceived because section 148, C. P. C. clearly states that an extension In time can be granted even if the period already granted had expired."
7. Reading subsection (1) and subsection (4) to section 23 of the Pre-emption Act together, "in every suit for pre-emption the Court shall at any time before the settlement of issues require the plaintiff to deposit in Court such sum as does not, i n the opinion of the Court, exceed one-fifth of the probable value of the land or property"; if the plaintiff fails within the time fixed by the Court or within such further time as the Court may allow to make the deposit . . . . , his plaint shall be rejected.
It is well settled proposition of law that the discretion' allowed to the Court to extend time is absolute and unqualified. The Court has power to extend the period fixed by it, even after the expiry of that period. -But the Court while allowing the extension should apply its mind a1 the discretion must be exercised judicially and not arbitrarily, for good and sufficient reasons, only in favour of pre-emptor, whose conduct has been bona fide. In the present case the deposit of pre-emption money was ordered on 18-11-1965 to be paid before 9-12-1965. On 9-12-1965 for the reasons in the application by the counsel on behalf of the plaintiffs, the period was extended up to 11-12-1965. This application is not signed by any of the plaintiffs or plaintiff No, 2 as attorney, for himself, or as attorney of plaintiffs Nos, 1 and 3. It is not stated in the application as to which of the three plaintiffs was employed in Peshawar, who could have no knowledge of the time fixed for deposit. Even the application for permission to deposit the pre-emption money has been signed by the counsel for the plaintiffs only. The pre-emption money, as the challan shows, was tendered by the counsel of the plaintiffs Malik Bashir Ahmad Khan. The learned trial Judge has not applied his mind to the bona fides of the plaintiffs or their counsel in submitting application for extension for the lame excuse that the plaintiff is employed in Peshawar, and has granted extension of time without good or sufficient reasons. Such an extension of time amounts to illegality which entails the rejection of the plaint.
8. In Bahadur Shah and others v. Ahmad Shah and another , it has been observed at page 210:-- "It is however, contended by Mr. Ghagat that the case is covered by section 99, Civil Procedure Code, which lays down that no decree shall be reversed or substantially varied on account of any error, defect or irregularity in any proceedings in the suit not affecting the merits of the case or the jurisdiction of the Court. He urges that the lower Court's omission to reject the plaint in accordance with subsection (4) of section 22 was merely an error covered by section 99, Civil Procedure Code.
He even goes so far as to say that there is nothing to prevent a Court from ignoring this provision of the law and, instead of rejecting a plaint, allowing the suit to continue and ultimately granting the plaintiff a decree for pre-emption. In our opinion the provision in subsection (4) that the plaint shall be rejected is a mandatory one and the trial Court's omission to pass an order in accordance therewith was an illegality such as cannot be covered by section 99, Civil Procedure Code."
In Gharib Shah v. Alam Shah and others , it has been observed:-- "The Court, however, should do so for good and sufficient reasons. The law of pre-emption is a creation of a statute and is an artificial right which has the result of defeating a legitimate and legal contract. There are, therefore, no equities involved in it. If the plaintiff in such suits wishes the Court to exercise its discretion in his favour, he shall have to show some very strong circumstance to entitle him to this indulgence. Held : plaintiffs was not entitled to get extension of time." In Sultan Muhammad Khan v. Khuda Bakhsh and another , it was held that under the provisions of section 23(4) of the N.-W. F. Province Pre-emption Act, 1950, "the Court has the jurisdiction to grant further time to the plaintiff to deposit B the required amount, but, then, this jurisdiction the Court must exercise for good and sufficient reasons, and certainly not in favour of a pre-emptor whose conduct has been mala fide." It was further observed :-1 2 3 "In the case before me, the Court extended the time as has already been mentioned not only for not good and sufficient reasons but for no reason at all. The pre-emptor did not deposit the amount because he was under the belief that the order was erroneously passed, and that he should not have been required to deposit Rs, 1,000 at all. The pre-emptor then did not deposit the amount intentionally for the reason which was far from bona fide. In my view, under the circumstances, the Court had absolutely no jurisdiction to extend the time, and its order is, therefore, on the face of it, wrong and illegal."
In Abdul Wahid etc. v. Ibrahim etc. , it has been observed at page 10, para. 3):-- "We consider that it is not necessary to refer at any length to the cases cited by the learned counsel, for the reason that the law is clear, namely, that a discretion does vest in the Court to extend time if sufficient cause is shown, and that if the amount is not deposited within the time originally fixed or within the time so extended, the plaint shall be rejected in terms of subsection (4) of section 22 of the Pre-emption Act. 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 the case, keeping in view, of course, the consideration that the right of pre-emption is predatory in its nature and constitutes a drawback on the freedom of contract, and for this reason the provisions of the Pre-emption Act have to be constrained and applied against pre-emptors."
Coming to a conclusion from the above authorities, I am of the view that under the circumstances of the case, the Court had absolutely no jurisdiction to extend the period and its order is therefore, on the face of it, wrong and illegal.
9. In Yousaf All v. Muhammad Aslam Zia and 2 others , it has been ruled :- "No party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void and non-existent. And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series .of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle or law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded."
Again, in Mansab Ali v. Amir and 3 others , it has been observed at page 127 :- "It is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction."
10.Consequently, I am of the view that the order of the learned trial Court in respect of the extension of the time for deposit is illegal, without good or sufficient reasons, and without jurisdiction. Such an order mandatorily entails the rejection of the plaint. I, therefore, accept the appeal, set aside the judgments and decrees of the two Courts below and reject the plaint of the plaintiffs. Parties to bear their own costs. AIR 1925 Lah. 209 PLD 1952 Pesh. 26 PLD 1954 Pesh. 64 PLD 1966 B J 8 PLD 1958 SC (Pak.) 104 PLD 1971 SC 124 4 5 6 1 2 3 4 5 6