' The petition is addressed against an order of the learned Additional Sub-Judge, Muzaffarabad, passed on April 26, 1986, whereby, despite failure of plaintiff/pre-empor to furnish security to the tune of ostensible value of the suit property, the trial Court suo motu extended the period for furnishing the same till May 14, 1986.
2. Ali Gohar pre-empted the alienation of the suit land measuring 1 Kanal 1 Marla, transferred by Punnu in favour of Noor Hussain, petitioner, through a sale-deed registered on September 14, 1985 for a sum of Rs, 22,000. The suit was instituted on February 15, 1986. On March 25 last when the written statement was furnished by vendee, the Trial Court directed the pre-emptor to furnish security to the tune of value of the suit property on or before the next date i. e. 26th April. Plaintiff failed to furnish the security in compliance with the direction of the Court by the next date of hearing for reasons unknown and the Trial Court, suo mow, extended the period up to May 14. This was done despite an application in the shape of objections filed by the vendee on the same day.
3. The main objection raised by Mr. Ghulam Mustafa Mughal is that the impugned order was not passed by the Presiding Officer as it was recorded by the Clerk of Court in his office and the same was signed mechanically by the learned Additional Sub-Judge. Moreover, despite the objections raised in the shape of application by the vendee, the period was extended without a request of the pre-emptor, as well as without any sufficient cause. He sited various authorities in support of his contention. Mr. Bashir Ahmed Mughal representing the respondents, contended that under law the Trial Court was vested with jurisdiction to extend period even suo moto. According to the learned counsel, unless it was shown that the discretion vested in the Court was not exercised properly, the impugned order could not be reversed.
4. Section 21(4) of the Right of Prior Purchase Act which is in para meteria in section 22(4) of the Punjab Pre-emption Act, postulates that if the plaintiff fails within the time fixed by the Court or within such further time as the Court may allow to make deposit or furnish security mentioned in subsection (1) or (2), his plaint shall be rejected or his appeal dismissed, as the case may be.
Subsection (1) of section 21 provides that in every suit of pre-emption, the Court shall at, or at any time before the settlement of issues, require the plaintiff to deposit in Court such sum as does not, in the opinion of Court, exceed one-fifth of the probable value of the property or require the plaintiff to give security to the satisfaction of the Court for the payment, if required, of -a sum not exceeding such probable value within such time as the Court may fix in such order. In present case, in compliance with the aforesaid provisions, the plaintiff-pre-emptor was ordered to furnish security to the extent of the ostensible value of the suit property and the security was to be provided on or before April 26. The plaintiff-pre-emptor failed to abide by the order of the Court and on April 26, the last date for furnishing the security, the Court suo moto extended the period till May 14.
5. Subsection (4) of section 21, undoubtedly, empowers the Court to extend period for the deposit of requisite amount or furnishing the security. The law does not provide specific procedure relating to extension of period. The consensus is that the period can be extended either on the application of pre-emptor or suo mow. One of the views is that the period can be extended suo mow provided the Court is satisfied that its direction was not complied with for reasons beyond the control of pre- emptor or on account of an act of the Court itself. The other view is that ordinarily the period may be extended at the request of the pre-emptor on the satisfaction that the pre-emptor was unable to comply with the order of the Court on account of definite reasons. Such reasons when in the opinion of the Court were sufficient in the eye of law, the Court was free to extend period in that case. In Malik Hadayat Ullah's case (1), the proposition was examined by the Supreme Court in the following manner "The Punjab Pre-emption Act does not -prescribe any procedure for obtaining such extension of time but upon general principle a Court has normally to be moved by an application of some kind, either oral or written. This does not, however, mean that the Court has no jurisdiction, in the absence of any such application, to grant a
(1) PLD 1972$ C 69 discretionary relief where the justice of the case so tequires. In the absence of any provision is the statute or in the rules made under the statute expressly providing that the Court shall act on the application of a party it cannot be said that such an application is a condition precedent to the exercise of the power. The power does not become nugatory, if no application is made for invoking that power. If the Court could we are clearly of opinion that it could under subsection (4) of section 22 extend time, then it could do so either on the application, written or oral, of a party or even suo mow where the justice of the cause so demanded."
6. In present case, it is noticed that the pre-emptor neither complied with the direction of the Court nor he made a request for the extension of period nor furnished any explanation for his such failure.
Moreover, the order of extension of period was not recorded by the Presiding Officer in his own hand as the same was written by the Clerk of Court in his office. The learned counsel for the pre- emptor conceded that no instructions were passed by the Presiding Officer to the Clerk in his presence for recording the impugned order. On the other hand, Mr. Ghulam Mustafa who represented the vendee, alleged that the impugned order was written by the Clerk in absence of any instructions of the Presiding Officer. Be as it may, the fact remains that the impugned order was passed without applying mind to the facts of the case. In the circumstances, it is safe to hold that the discretion vested in the Court was not exercised in a judicial fashion. The impugned order is, therefore, not likely to sustain.
7. At this stage, it was disclosed by the learned counsel for the pre-emptor that the pre-emptor being out of the country, was unable to furnish the security bond. This fact may be otherwise correct but unless this cause is first brought to the notice of the trial Court and it is sufficiently established, this Court is not in a position to uphold the explanation. The only reasonable and just solution to the proposition is that the case may be remanded for fresh decision. Parties shall be free to furnish their view-points before tie trial Court who after having all the facts shall apply his mind to the proposition for final decision. The petition is, therefore, disposed of accordingly.