' This R.S.A. impugns a decree dated 20-6-1967 of the learned District Judge, Rawalpindi, whereby he dismissed the pre-emptor/ appellant's first appeal on the ground that he had failed to make the deposit of 1/5th Zar-i-Panjum within the time originally specified by the trial Court and that the extension therein allowed on an application made on his behalf by the counsel without disclosing any sufficient reason, was arbitrary.
2. The trial Court had directed that the 1/5th pre-emption amount be deposited before 3-3-1964.
Admittedly, the appellant did not make the deposit and his counsel in his absence presented an application on that date itself, and not earlier, praying for extension on the ground that it was not known to him if the deposit had in fact been made as he had no instructions. The trial Court allowed the extension uptil 6-3-1964, of course, without notice to the opposite party. However, his suit was dismissed by it on the ground that he did not enjoy any better right of pre-emption against the vendee. In appeal though the findings on the point of pre-emption were reversed by the learned District Judge, yet he took note of the fact that the extension allowed for the deposit of 1/5th amount was capricious and arbitrary. He accordingly dismissed the appeal on that score.
3. Malik Muhammad Ja'afar for the appellant stressed that the record did not show if at all the deposit of 1/5th had not been made before the date originally fixed i.e. 3-3-1964. He was of the view that there was possibility of having made the deposit before the terminal date. He pointed out that the proceedings did disclose that a receipt was shown to the trial Court on 7-3-1964 and concluded therefrom that presumably the deposit was made within the time originally fixed.
4. I am afraid if this were so, the learned District Judge or at least the trial Court wherever the said receipt was produced, would have taken note of the date of the deposit. If indeed it had been made in time, the appellant, or for that matter his counsel, would have agitated the same before the learned District Judge rather than to have suffered an order for this omission against him. To all appearances, the deposit was not made within the time originally fixed.
5. Speaking of the extension, learned counsel submitted that it could have been allowed even suo motu as well without notice to the opposite side because the idea was to secure this deposit against any possible costs to be determined later. According to him, there was enough power available to the Court under section 22 of the Punjab Pre-emption Act as also the Civil Procedure Code. That may be true but the extension could not be claimed as of right. Some plausible reason had to be shown. The application made by the counsel in the absence of the appellant was rather imprecise if not loose. There were no instructions given to the counsel as to why after all the appellant did not appear or did not make the deposit, or that he should seek extension stating some tangible reason. The application was, therefore, made just to grope in the dark and so was the order made by the trial Court without applying mind in an objective manner. Although one may differ with the view that the right was predatory as the trend has now changed, yet the statutory requirement of making the deposit was not observed meticulously and no indulgence could be shown to the pre emptor in that context.
6. I fully agree with the learned District Judge and dismiss this appeal leaving the parties to bear their own costs.