Malik Alamgir and others, plaintiffs/petitioners herein filed the present suit for possession through pre-emption of the suit land, fully described in the heading of the plaint, against Salam Gul and others, defendants/respondents herein, on 2-11-1986, before the Senior Civil Judge, Dera Ismail Khan who entrusted the same to the Civil Judge. The latter on receipt of the file, ordered service on the defendants and directed the plaintiffs/petitioners to deposit Rs.4,40,000 before 18-12-1986, the date fixed in the case. On the said date an application for the extension of time was submitted by the plaintiffs/petitioners which was granted and the plaintiffs/petitioners were allowed to make the deposit before 29-1-1987. The plaintiffs/petitioners did not comply with the same order and on 28- 1-1987 submitted yet another application for the extension of time which again found favour wit the learned Civil Judge and he extended the time upto 22-1-1987 vide his brief order recorded on the application on 28-1-1987. When the file came up in routine before him on 29-1-1987, the date fixed in the case, the learned Civil Judge referred to his earlier order passed on the application for extension of time and at the same time forwarded the case to the learned District Judge for transfer of the case to any other competent Court, as Alamgir plaintiff was serving as a Moharrir in his Court. The case was accordingly transferred by the learned District Judge to Mr. Pir Bakhsh Shah, the then Civil Judge, Dera Ismail Khan. On 11-2-1987 the plaintiffs/petitioners again moved an application to the learned Civil Judge to whom the case had been transferred, praying therein that the amount mentioned in the deeds was excessive and that the plaintiffs/petitioners were not in a position to manage the deposit of amount ordered by the Court as they had incurred much expenditure on the sowing and manuring of the wheat crop and that they may be permitted to deposit Rs. One lac in cash and for the rest allowed to produce security bonds. The Court ordered this application to be produced alongwith the file of the case on the following day. A detailed order was passed by the Court on 12-2-1987, and by accentina the annfeation modified the earlier order of deposit and directed the plaintiffs/petitioners to deposit Rs.1,80,000, in cash which was complied with. The defendants/respondents, in spite of the issue of summonses against them remained absent throughout the proceedings of the case and they ultimately put in appearance on 16-4- 1987 after a proclamation had been published against them in the `Daily Mashriq'. They submitted an application on the same day and prayed that since the plaintiffs/petitioners had failed to comply with the order dated 4-11-1986, the plaint may be rejected. This application was resisted and the learned trial Judge after hearing the parties and their counsel, dismissed the suit vide his judgment and decree dated 16-7-1987. Dissatisfied with the same the plaintiffs/petitioners preferred appeal before the learned District Judge who vide his judgment and decree dated 10-3- 1988 dismissed the appeal with the modification that the order of dismissal passed by the learned trial Judge may be read as order of rejection of plaint. Hence the instant revision petition.
2.I have heard learned counsel for the parties and have carefully perused the record of the case with their assistance.
3. The learned counsel for the plaintiffs/petitioners vehemently contended that the learned trial Court had the jurisdiction to extend time on 18-12-1986 without notice to the opposite side, particularly, when they had not attended the Court in compliance to the summonses issued to them earlier. He also contended that the impugned order of the leaned trial Judge regarding the dismissal of the suit was patently illegal in view of the mandatory provisions of section 23, subsection (4) of the then N.W.F.P. Pre-emption Act. 1950 whereby rejection of plaint could only be ordered and not the dismissal of the suit. He next submitted that the order dated 18-12-1986 was an order passed by the Civil Judge in the due performance of his duties within his jurisdiction and it had legally attained finality. According to him so long as this order was not properly set aside in appeal, revision or the exercise of powers of review, the learned trial Judge had no jurisdiction to bypass the same and resort to the provisions of section 23, subsection (4) of the Pre-emption Act ibid. He argued that the proper remedy available to the defendants/respondents was not availed of within the time allowed by law and that the learned trial Judge had no jurisdiction to dismiss the suit of the plaintiffs/petitioners on the miscellaneous application dated 16-4-1987. He further submitted that even if the said application is treated as application for review, even then the Court could not pass the impugned order because it was not the same Court which had passed the order dated 18-12-1986 and in view of the mandatory provisions of Order 47 rule 2 of the Civil Procedure Code, it was debarred to entertain the application for review of the order passed by its predecessor-in-office.
4. The learned counsel for the defendants/respondents, on the other hand, cited several authorities and submitted that after the expiry of time fixed by the Court for the deposit of pre-emption money under section 23 of the Pre-emption Act ibid, the Court had become functus officio and could not modify the order or extend period therefor without notice to the opposite side and giving the chance of hearing to them. He dwelt at length over the conduct of the plaintiffs/petitioners in their repeated requests for the extension of time and for the reduction in the cash deposit and tried to create an impression that the plaintiffs/pre-emptors had no means to acquire the property and that the sole purpose for pre-empting the transaction was to extract money from the defendants/respondents.
5. I have given my anxious consideration to the learned arguments advanced from either side and have gone through the authorities cited at the Bar. There is no cavil with the proposition that the trial Courts have the powers to extend the time or alter the original order of deposit whether in cash or security or converting the one into the other partly or wholly, if a prayer to that effect is made before it, prior to the expiry of the time fixed for the deposit. In this respect the judgment of the august Supreme Court in case "Ch. Zulfiqar Ali v. Mian Akhtar Islam and another" reported as (PLD 1967 Supreme Court 418) is a sufficient guide. It has also been held in several cases including "Noor Mohammad v. Ghulam Siddique" (PLD 1985 Peshawar 127), "Niaz Muhammad Khan v. Mian Fazal Raqib" (PLD 1974 Supreme Court 134), "Riaz Ahmad Khan. v. Faiz Muhammad Khan" (PLD 1978 Baghdadul Jadid 85), "Ghulam Sarwar. v. Mst. Kalsoom Bibi" (1985 CLC 280)7 and "Havaldar Abdul Shakur v. Shama Begum alias Shama" (CLC 1986 Lahore 2162), that non-deposit of the pre- emption money within the stipulated time confers valuable rights on the vendees-defendants and that they cannot be deprived of it by extending the period fixed therefor or modifying the quantum of the cash deposit, without giving them an opportunity of being heard, in reply to the application for such purpose, submitted after the expiry of the original period for deposit fixed. The case in hand, however, stands on a different footing than those culminating in the judgments of the cited cases. The trial Court did pass the orders enumerated above in the purported exercise of its discretion and jurisdiction and so long as they are not set aside through invoking the Appellate/Revisional or Review jurisdiction, they remain in the field and cannot be ignored while resorting to the provisions of section 23, sub-section (4) of the then N.-W.F.P. Pre-emption Act, 1950.
Admittedly the impugned order was passed by a Judge who had not passed the original order of deposit and consequently he could not review the order passed by his predecessor-in-office in view of the mandatory provisions of Order 47 rule 2 of the Civil Procedure Code. Additionally under Article 173 of the Limitation Act an application for review of decrees and orders can only be filed C within ninety days and the application dated 16-4-1987 filed by the defendants/respondents beyond ninety days of the passing of the order dated 18--12-1986 extending the time for the deposit, being beyond the statutory period of limitation could not be considered by the trial Court without proper application for condonation of delay. Needless to mention that the trial Court had no power to review its own orders suo motu much less those of its predecessor. There is no indication in the impugned order that the trial Court acted in the purported exercise of its powers of Review. Otherwise, too, the trial Judge could not set at naught the order passed by his predecessor-in-office and without clearance of the said hurdle resort could not be had to the provisions of section 23, subsection (4) of the Pre-emption Act ibid.
6. There is yet another important legal aspect of the case which has escaped the notice of the learned lower two forums. The pre-empted sale transaction effected through registered deed was finalised on 1-2-1986 and, therefore, a suit for pre-emption could legally be filed on or before 1-2- 1987. As held by this Court in case "Sharifullah v. Mumtaz and another" reported as (PLD 1980 Peshawar 87), the rejection of plaint under section 23, subsection (4) of the Pre-emption Act ibid does not debar the plaintiff (pre-emptor) from filing fresh suit on the same cause of action before the expiry of the period of limitation prescribed under the law and as such the rejection of plaint in the instant case on 18-12-1986 could not confer any right on the defendant-vendee, rather it would have ipso facto resulted in the extension of time to the plaintiff, if he had desired to institute a fresh suit. These factors may have influenced the learned trial Judge to grant extension on 18-12-1986 without notice to the opposite side. I am of the considered opinion that the notice to the vendees/defendants for the extension of time for the deposit is not mandatory if the limitation for filing fresh suit has not yet expired.
7. The upshot of the above discussion is that I accept the instant revision petition, set aside the judgments and decrees dated 16-7-1987 and 10-3-1988 respectively passed by the learned lower two forums and reject the application dated 16-4-1987 filed by the defendants/respondents for the rejection of the plaint with the result that the case stands remitted to the trial Court for proceeding with the same on merits according to law. The parties are directed to appear before the learned Civil Judge, Dera Ismail Khan on 14-4-1990 and the, office is directed to send the case to the trial Court immediately.