1. ' BASHARAT AHMAD SHAIKH, J.---Respondent Ali Gohar instituted a pre-emption suit to pre-empt the sale of land in dispute made by pro forma-respondent Punoo in favour of appellant Noor Hussain. On 25th of March, 1986 plaintiff Ali Gohar was directed to file security bond equal to the sale price on or uptil the next date of hearing which was set down for 26th of April, 1986. When the case was called on for hearing on 26th April no security bond was shown to have been filed. The learned Additional Sub-Judge Muzaffarabad passed the order that it may be done within one week otherwise proper order would be passed. The time of moving the application is not known but on the same day defendant Noor Hussain moved an application that since the Court order had not been complied with the suit may be dismissed. This application was placed on the file but no order was passed. The security bond was thereafter filed on 30th of April, 1986, within the extended time allowed by the Court.
2. ' The order passed on 26th of April, 1986 by which further time was allowed for filing of the bond was challenged by defendant Noor Hussain through a revision petition filed in the High Court. He complained that the order granting extension in time was not passed by the Presiding Officer himself as it was recorded in the hand of a clerk and was subsequently signed mechanically by the learned Additional Sub-Judge. His other and more formidable objection was that period was extended without a request by the pre-emptor and that also without any cause. The order was worded as follows:- {{URDU TEXT}} ' A learned Judge in the High Court took note of the aforementioned objections and came to the conclusion that the discretion vested in the Court had not been exercised in "judicial fashion" as the order of 26th April, had been passed without applying mind to the facts of the case. The learned Judge also took note of a submission made by the learned counsel for the pre-emptor that his client was out of the country and it was due to this reason that he could not furnish the security bond within the time fixed by the Court and observed that this fact should have been brought to the notice of the trial Court and if sufficiently established the trial Court could have been in a position to uphold the explanation. The learned Judge, therefore, thought that the only reasonable and just solution was to remand the case for fresh decision which was accordingly ordered.
3. ' After receiving the file from the High Court the trial Court did not ask the parties to lead evidence and proceeded to decide the matter after hearing arguments of the two sides. When arguments were heard on 22nd of November 1986 an application was moved on behalf of Ali Gohar plaintiff which was accompanied by an affidavit sworn by Ali Gohar himself. This application does not find mention in the interlocutory order recorded on 22-11-1986 and it appears that it was filed after the conclusion of arguments. In this application as well as the affidavit it is stated that the security bond could not be filed because the plaintiff had gone out of the country. The learned Additional Sub-Judge Muzaffarabad by his order passed on 29-11-1986 held that there was no sufficient cause for granting extension for filing of the security bond. He observed that the mere statement that the plaintiff had gone out of the country did not constitute a valid reason for granting extension unless it was established that from 25th of March, the date on which order for furnishing of security was recorded, to 22nd of November, the date on which application for extension was made, the plaintiff had been out of the country. Consequently the suit was dismissed for non-filing of the security bond within time.
4. ' Ali Gohar filed an appeal before the learned District Judge Muzaffarabad who accepted the appeal and held that the plaintiff had not been guilty of any negligence for which he could be penalised. The learned District Judge also observed that verbal prayer for extension had been made and accepted on 26th of April and the security bond had been furnished within the extended time. It may at once be noted here that the observation made by the learned District Judge that prayer had been made for extension of time is not borne out from the record as no such event is incorporated in the order of 26th of April.
5. ' Noor Hussain, the vendee, filed appeal in the High Court of Azad Jammu and Kashmir wherein it was submitted that there was neither an oral nor a written prayer for extension of time and in fact there was no valid reason for which extension could be granted in the case. He raised the plea that the failure of the plaintiff to file security bond within time had created a valuable right in the defendant which should not have been taken away as the provisions of Right of the Prior Purchase Act have to be strictly complied with. The appeal was heard by a learned Single Judge who dismissed the appeal by a detailed order recorded on 30th of October, and upheld the order of the learned District Judge. The learned Judge formed the view that from the plain reading of the order passed on 25th of March it became clear that the plaintiff-pre-emptor had the whole of 26th day of April available to him for filing the requisite bond. Therefore, according to the learned Judge, the trial Court could not have dismissed the suit as no failure had taken place and the course open for the trial Court was to fix the case on the following day or to any other date without extending the period and then on that day the case could have been dismissed. The trial Court instead extended the date for filing of the security bond and fixed the case for hearing on 11th of May. The learned Judge in the High Court was of the view that an irregularity had been committed by the trial Court by not allowing the plaintff-pre-emptor the full time which had been fixed earlier and the plaintiff could not therefore, be penalised for the act of the Court or any of its staff members. It was also noted that under subsection (4) of section 21 of the Right of Prior Purchase Act the Court is vested with the jurisdiction to extend the period even without a prayer from the plaintiff. Seen in light of the facts of the case the learned Judge in the High Court held that the refusal to condone the delay of 3/4 days was not a proper exercise of discretion vested in the trial Court. Subsection (4) mentioned above runs as follows:- "If the plaintiff fails within the time fixed by the Court or within such further time as the Court may fix to make the deposit or furnish the security under subsection (1) or (2) his plaint shall be rejected or his as the case may be."
6. ' Leave was granted to Noor Hussain, the vendee-defendant, to examine the correctness of the view taken by the High Court. Appearing for him Mr.Ghulam Mustafa Mughal, Advocate, pleaded with vehemence that even if it is accepted that the whole of 26th day of April was available to the plaintiff default even then stood committed because the security bond was not filed on that date but was filed on 30th of April. His contention was that the plaintiff did not avail of the time made available to him and the order passed on 26th April has to be adjudged by keeping in view the principle that when a discretion is vested in a Court of law it has to be exercised judicially. He submitted that the powers of extension available to a Civil Court could be exercised with or without an application but that did not mean that when the legislature vested this power in the Civil Court it visualised that it would be open for the Court to exercise this power without a cogent reason. He relied on a judgment of this Court reported as `Faqir Muhammad v. Mutwali' PLD 1982 SC (AJ&K 55) to contend that a Court cannot act mechanically while extending time fixed for filing of security bond and time can be extended if strong circumstances are shown to-entitle the plaintiff to such indulgence. He also placed reliance on a case reported as `Niaz Muhammad Khan v. Mian Fazal Raqib' PLD 1974 SC 134 in support of his submission that extension of time has to be made by an express order after application of the mind to the circumstances necessitating extension. The learned counsel also submitted in light of this decision that on failure of the plaintiff to comply with the order for filing of security bond a right accrues in favour of the vendee to have the plaint rejected. The learned counsel submitted that the order of the Court passed on 26th of April was a cryptic order which did not contain any reason for extension. The learned counsel also contended that after the order of 26th April was set aside by the High Court in the previous round no ground was disclosed on the basis of which extension could be granted. The application and the affidavit mentioned elsewhere were filed after hearing of the arguments and therefore could not be made use of because the same were filed behind the back of the defendant. Mr.Ghulam Mustafa Mughal also submitted that in any case the reason that the plaintiff had gone abroad was a bare statement which could not have the effect of proving the fact of absence from Pakistan during the total period under consideration. Mr.Ghulam Mustafa Mughal also relied on illadayat Ullah v. Murad Are PLD 1972 SC 69 in support of his contention that time for filing of security bond can be extended only where justice so demands. It was held in that case that power of extension is a discretionary power but it has to be exercised upon sound judicial principles. The learned counsel also relied on `Mirza Ghulam Hussain v. Muhammad Bashir' 1981 CLC 1689 and `Ram Rattan v.
7. Rajaram' AIR 1923 Lah.
8. 643.
9. ' The learned counsel for the respondent, Kh. Shahad Ahmad submitted that the learned Judge in the High Court has rightly analysed the facts of the case and particularly the fact that the whole of 26th of April being available to the plaintiff, the Court itself was responsible for interrupting this period. The learned counsel contended that the act of the Court itself constituted a valid reason why extension should have been granted. He submitted that although the reasons for granting extension are not recorded in the order of the trial Court but the justification could be gathered from the record, as has been rightly done by the High Court. The learned counsel also contended that recording of reasons was not a requirement of the relevant provision of law. Kh. Shahad Ahmad took the position that no right had accrued to the defendant when the trial Court passed the order on 26th April because the time was extended before original time had expired. According to him a right can only be said to have accrued to the defendant if no extension had been granted by the Court within time. Kh. Shahad Ahmad relied on the following cases:-
(1) 'Muhammad Hayat v. Ahmad Yar' PLD 1986 Lah.
10. 270.
(2) H.Raza Khan v. Awal Khan etc.' 1983 CLC 2163.
(3) `Khuda Bakhsh v. Sultan Muhammad and another' 1985 SCMR 192.
(4) Inayatullah and others v. Mst. Khurshid Akhtar' 1986 SCMR 687.
(5) 'Malik Barkat Ali Dogar v. Muhammad Shafi and others' PLD 1990 SC 60.
11. In our view the learned Judge in the High Court was right in holding that the whole of 26th of April was available to the plaintiff for filing the security bond. The order of the trial Court did not require the plaintiff to file the security bond before the next date of hearing but the order said that he was supposed to do so uptil or on the next date. Although, as held by the learned Judge in the High Court, the order is clear but in our view if there is any vagueness or inexactness in the order the plaintiff cannot be penalised for it. It is the duty of the Courts to record orders in clear terms and in cases of ambiguity it is not proper to penalise a party.
12. ' Since the whole of 26th of April was available to the plaintiff for filing of the security bond the ordinary course for the Court would have been to pass no order and adjourn the case to the next day or any other appropriate date and if on that subsequent date it was found that the plaintiff had not filed the security on 26th April the plaint should have been rejected. But as it is, the Court adopted a different course. The time when the order was recorded on 26th April is not known and the possibility cannot be ruled out that the case might have been called in the morning. In any case there was still time for filing of the security bond on that day. It is therefore, clear that the Court could not have passed order for rejection of the plaint when the case was called on for hearing. Once we reach the conclusion that the Court could not reject the plaint when the case was called on 26th April it follows that the Court had to fix another date when it could be seen whether the requisite bond had been filed on 26th April but the course adopted by the Court was that while fixing another date period was also extended. That it was an act of the Court for which he had not been able to do the needful. This plea was rejected and the High Court also affirmed the orders of the learned Civil Judge as well as the learned District Judge. As is apparent from the facts of the case there was no act of the Court which was responsible, wholly or partly, for the default and the plea was rightly rejected.
13. ' Another case referred to by Mr. Ghulam Mustafa Mughal is 'Ram Rattan v. Rajaram' AIR 1923 Lah.
643. In this case a Division Bench of the Lahore High Court held that the trial Court acted illegally in rejecting the plaint as a consequence of a default in deposit of `zar-i-panjum' under the impression that no order could be passed where default had been committed. The Lahore High Court expressed the view that the phrase "his plaint shall be rejected" read with the provision as to an extension of time meant that the plaint would be rejected if the Court did not deem it proper to allow further time. This judgment does not help the learned counsel for the appellant.
14. ' The last case relied upon on behalf of the appellant is "Niaz Muhammad Khan v. Mian Fazal Raqib"
15. PLD 1974 SC 134 wherein it is laid down that since non-compliance with the order for furnishing security in pre-emption cases entails dismissal of the suit the provision is mandatory. This is the same view as has been expressed by this Court in Faqir Muhammad's case.
16. ' Before parting with this judgment we may also take note of the fact that although this. Court has in Faqir Muhammad's case laid down the law that extension of time can only be granted for sufficient cause, the Supreme Court of Pakistan took a different view in "Inayat Ullah v. Khurshid Akhtar" 1986 SCMR 687 which has been cited by Kh.Shahad Ahmad learned counsel for the respondent. In that case the Supreme Court of Pakistan saw no merit in the submission that extension of time in favour of the pre-emptor could not be granted automatically and could be ordered if sufficient and reasonable cause was shown.
17. ' Finding no force in the appeal, it is dismissed with no order as to costs.