' This writ petition involves a short law point inasmuch as the trial Court allowed extension of time for deposit of Zar-e-Panjam to the petitioner-pre-emptor without hearing the respondent vendee.
The learned District Judge instead of looking into the grievance of the respondent on account of non-hearing purported to interfer in revision on the ground that the application for extension in time itself was not based on good grounds and held that the discretion had not been properly exercised.
2. The proposition in hand admits of little doubt that the decision of the Supreme Court in Malik Hadayat Ullah and 2 others v. Murad All Khan PLD 1972 SC 69 stands elucidated and further clarified by the subsequent decision of the same learned Court in Niaz Muhammad Khan v. Mian Fazal Raqib PLD 1974 SC 134 wherein it has been held that the extension in time for the deposit of Zar-e-Panjam cannot be made once the period originally allowed by the Court has expired without hearing the opposite side which has a vested right to have the by virtue of subsection (4) of section 22 of the Punjab Pre-emption Act. The later decision no doubt arises out of the N.-W.F.P.
Pre-emption. Act but in so far as the relevant provisions in the two statutes are concerned, they are pari materia. Therefore, the ratio of the case of Niaz Muhammad Khan would fully apply even to cases arising under the Punjab Pre-emption Act. This matter has already been noticed by various Benches of this Court and the consistent view so far is that extension in time for deposit of Zar-e- Panjam ought to be allowed only after hearing the opposite side. Reference may be made to the case of Atta Muhammad and another v. Malik Noor Muhammad and 6 others PLD 1978 Lah.
453.
3. The question which now arises for consideration is whether the order of the learned District Judge ought to be set aside in exercise of the constitutional jurisdiction. It is not disputed that the revisional jurisdiction of the learned District Judge was not available to him for the purpose of interference in discretionary powers exercised by the lower Court and that it could only be invoked wherever the case fell within the three clauses of section 115, C.P.C. Instead of addressing himself to the grievance made before him, he purported to substitute his own discretion for that of the trial Court. He does not appear even to be conscious of the question of hearing or non-hearing or of vitiative infirmity in the order of the trial Court arising in the case. The constitutional jurisdiction of this Court is not akin to appellate jurisdiction nor this Court is in a position to substitute its own opinion for that of the Court or tribunal below. In this view of the matter, I have to examine the order on the face of it as it appears and if I find that it suffers from a legal infirmity, I can only quash it. I cannot uphold it in part or sustain it for reasons other than those which weighed with) the learned District Judge.
4. The next question which arises for consideration is as to what is the proper order to be passed in this case. I think, adherence to law is the bounden duty of the Courts below. The order of extension in time in the matter of deposit of Zar-e-Panjam having been made without hearing the respondent is not a lawful order and thus in violation of the mandate of the law and runs contrary to the enunciation made by the Supreme Court of Pakistan. In the circumstances of the case, I would accept this writ petition, declare the impugned order of the learned District Judge to be without lawful authority and of no legal effect and send the case back to the trial Court to dispose of the application of the present petitioner for extension in time for deposit of Zar-e-Panjam after hearing the respondent/defendant/vendee. Needless to add that the trial Court will not be influenced by extraneous considerations or observations made by the learned District Judge or by this Court and the application shall be disposed of on its own merits. In the circumstances of the case, there shall be no order as to costs. The parties are directed to appear before the trial Court on the 29th April, 1984.
Writ issued.