' Vide mutation No,3169 attested on 12-3-1983, Arshad Javed, defendant-respondent No,1 herein, purchased the suit land from Javed Azhar, the original owner. This transaction gave rise to the institution of two pre-emption suits, one by Mst. Shaista Nigar Zaidi, defendant-respondent No,2 herein, and the other by Muhammad Hashim and Muhammad Rafique, petitioners herein. The former suit was instituted on 18-1-1984, while the latter on 9-4-1983, in the Court of Senior Civil Judge, D.I. Khan, and were marked to different Courts for disposal. However, they were ultimately entrusted to the same Court for decision, who vide its order dated 21-10-1984, consolidated both the suits with the direction that proceedings shall be carried out in the suit filed by Muhammad Hashim Khan etc., plaintiff-petitioners herein.
2. The rival pre-emptors of both the suits who were impleaded in the connected suits, filed their written statements in the cross-files as well. Muhammad Hashim, petitioner No, 1 herein, in his written statement filed on 7-1-1985 in the cross-case of Mst. Shaista Nigar, raised a specific plea that she had not complied with the order of deposit in accordance with the directions of the Court and her plaint was, therefore, liable to rejection under section 23 of the then N.-W.F.P. Pre-emption Act, 1950. He also submitted an application on 5-2-1986 in his own suit for the same purpose. The parties accordingly joined issue on this important legal and factual aspect of the case and produced evidence thereon as well. The learned trial Judge, on the appraisal of the evidence so produced, vide his order dated 4-2-1988, dismissed the suit of Mst. Shaista Nigar, respondent No,2 herein and allowed the case of the petitioner to proceed according to law. The same order was challenged by Mst. Shaista Nigar in appeal before the learned District Judge which found favour with him and he vide his order dated 30-7-1988, accepted the appeal, set aside the order of the lower Court and remanded the case back to it for decision on merits. Hence the instant revision petition filed by Muhammad Hashim Khan and Muhammad Rafique Khan, petitioners calling in question the aforesaid order of the District Judge.
3. I have heard the learned counsel for the parties and perused the record with their assistance.
The point in controversy between the parties, relevant for the disposal of their revision petition is that Mst. Shaista Nigar, respondent No, 2, was directed by the Court on 21-1-1984 to deposit Rs,20,000 as pre-emption money before the next date of hearing i.e, 7-3-1984. It is not disputed that the deposit was not made as per the directions of the Court, because the Presiding Officer had relinquished charge on 3-3-1984 on account of his transfer to Peshawar. She submitted an application on 21-3-1984 to the learned District Judge praying therein that on 5-3-1984 she had deputed her attorney, namely, Muhammad Jan, with a prayer for permission to deposit the pre- emption money, but since the Presiding Officer was transferred and her learned counsel was also away to Lahore, therefore, the deposit could not be made. Further, that since the Successor-in- Office of the Presiding Officer had not yet taken over, therefore, the delay in deposit was occasioned. The same was marked by the learned District Judge to the Senior Civil Judge for disposal the same day who ordered the deposit of the pre-emption money, subject to all just and valid objections by the opposite side and the amount was deposited in the treasury on the same day. The grievance of the petitioners is that the rival pre-emptor, respondent No,2 herein, was legally bound to make the deposit before 7-3-1984 and that non-compliance thereof necessitated the rejection of the plaint.
4. On the contrary, the case of respondent No,2 is that since the Court was closed on account of the transfer of the Presiding Officer, she had a legal right to deposit the amount on the re-opening of the Court. The parties cited various case-law in support' of their respective contentions.
5. I have anxiously considered the learned arguments advanced on either side. For the determination of the legal question, whether the law allowed respondent No,2 a statutory right to defer the deposit of the pre-emption money till the time the Successor-in-Office of the Presiding Officer had taken over, it is necessary to reproduce the relevant provisions of law. In this connection, sections 4 and 29 of the Limitation Act, 1908, are relevant, which are as under for ready reference:-- "Section 4. Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court reopens.
' Section 29(2). Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law--
(a) the provisions contained in section 4, sections 9 to 14, and section 22 shall apply in so far as, and to extent to which, they are not expressly excluded by such special or local law; and
(b) the remaining provisions of this Act shall not apply."
' The aforesaid provisions of law are based on the maxim "actus curiae neminem gravabit" (Act of Court shall not prejudice any one). An identical question came up for consideration before a Division Bench of the erstwhile Lahore High Court of West Pakistan in the case of Nazar Muhammad v. Murad All and others, reported as PLD 1960 (W.P.) Lahore 757, and their Lordships were pleased to interpret section 4 of the Limitation Act, 1908, in the following words:-- "Now, the expression 'Court' has not been defined either in the Limitation Act or the General Clauses Act and this can be said of almost all Acts in froce in Pakistan. The expression, however, means according to the extent in each case either the Presiding Officer or the whole Court including the Presiding Officer of the Court or the place where cases are heard. It is clear that in section 4 of the Limitation Act the expression `Court' means the place where the Court is held and does not refer to the Presiding Officer because it is only a place that can be closed. If for some reasons the Court- room is closed so that nobody can enter it, it is obvious that the Court is closed. But if the Court- room is open, it does not necessarily follow that the Court is not closed. For example, the Court- room may be open on a day, but it may not be possible to transact any business therein on that day, just as on a holiday, and if that be so, the Court will have to be deemed to be closed on that day for the purposes of section 4 of the Limitation Act. Applying these tests to the facts of the present case one cannot but arrive at the conclusion that the Court of Senior Civil Judge, Gujranwala was closed on the 16th of August, 1954, so far as the presentation of plaints in that Court was concerned. This is so because the Presiding Officer of the Court was on leave and the plaint could not be presented to him. On the 16th of August, 1954, officials of the Court of Senior Civil Judge, Gujranwala, were probably all present in the Court-room, or in a room attached to it, but as none of them had been authorised by the Senior Civil Judge, Gujranwala, to receive plaints on his behalf, their presence was entirely immaterial. What I have said above about the Court of Senior Civil Judge, Gujranwala, applies with equal force to the Court of the District Judge, Gujranwala. It follows, therefore, that section 4 of the Limitation Act comes to the aid of the plaintiff and because the Senior Civil Judge, Gujranwala, returned from leave on the 28th of August, 1954, I have no hesitation in holding that his Court remained closed from the 14th of August, 1954, till the 27th of August 1954 and a plaint, which should have been presented within time if it was presented on the 28th of August, 1954, is clear from the fact that he passed an order thereon on that day and even if there was any defect in the presentation of the plaint on account of the fact that it had been presented to the Duty Magistrate, Gujranwala, who could not, in law, receive it-- a defect for which the plaintiff was in no way responsible-- it was cured by reason of the fact that the plaint was placed before the Senior Civil Judge, Gujranwala, on the 28th of August, 1954."
' This very proposition was also considered by their Lordships of the august Supreme Court in the case of Fazal Karim etc. v. Ghulam Jillani and others, reported as 1975 SCMR 452, wherein while drawing a line of distinction between the 'office' and 'Court; their Lordships opined as follows:-- "Having carefully consider the contentions raised by the counsel for the parties, we are convinced that the view taken by the learned Judge of the High Court was unexceptionable. From the plain reading of section 4 of the Limitation Act, it becomes abundantly clear that the period during which the Court remaines closed on account of vacations, has to be excluded for the computation of limitation and the notification cannot take precedence over the satutory provisions. Even otherwise, we find that there is no conflict between the notification and the provision contained in section 4 of the Limitation Act. According to the notification, the office was to remain open for receipt of petitions from persons who might choose to file. Surely, the word 'office' as used in the notification is not synonymous with 'Court' as used in section 4 of the Limitation Act. The Court may be closed and yet the office might still be open."
' A Division Bench of the Azad Jammu and Kashmir High Court, confronted with similar situation in the case of Anwar Hussain Shah and others v. Akhtar Hussain Shah, reported as PLD 1967 Azad J&K 78, relying on Ram Nath v. Duni Chand and another, reported as AI R 1934 Lahore 622 (2) held as follows:-- "(c) Limitation Act (IX of 1908), S.4-Court sometimes sitting at place A and sometimes at place P-- Cause of action accruing at A--Limitation period expiring while Court sitting at P--Plaint can be instituted when Court re-opens at A--Not obligatory on plaintiff to go and file plaint at P--Court to be deemed as closed at A while away at place P."
6. The aforementioned statutory provision of law coupled with the interpretations placed upon it by the august Supreme Court and the High Court mentioned above leads to an irresistible conclusion that if the Presiding Officer of the Court is not available for one reason or the other, the Court shall be deemed to be closed within the meaning of section 4 of the Limitation Act, 1908, and any act or presentation of plaint, appeal or petition required to be done within that period, can be done or presented when the Court reopens. In the instant case, the Presiding Officer of the Court had admittedly been transferred and his succerssor-in-office had not yet arrived. Respondent No,2, as a matter of abundant precaution, applied to the District Judge for permission to deposit the pre- emption money on 21-4-1984, though she could wait till the taking over of the new Presiding Officer.
There is also nothing available on the file to substantiate that any arrangement had been made by the Court for the deposit of the pre-emption money during the period when the Court was vacant on account of transfer of the Presiding Officer. Be that as it may, the ignorant litigants, moreso the ladies, could not be expected to know of any such arrangement, even if made by the concerned authorities. I am, therefore, of the considered view that the Court was closed, within the meaning of section 4 of the Limitation Act, 1908, from 3-3-1984 when the Presiding Officer relinquished his charge and Mst. Shaista Nigar could legally deposit the pre-emption amount on the re-opening of the same when the Successor-in-Office of the Presiding Officer took over. Since she had already deposited the amount prior thereto, application of section 23 of the N.-W.F.P. Pre-emption Act could not be attracted.
7. Additionally, Mst. Shaista Nigar, respondent No,2 herein, is a Pardanasheen lady and her general attorney was also a Pardansheen lady. She was competent to deposit the amount upto 6-3-1984, on which date the Presiding Officer was not available and she had, therefore, genuinely felt that there would be no bar for her to deposit the amount on the arrival of the new Presiding Officer and when she found that the new incumbent will not be available even on the next date of hearing viz. 22-3-1984, she approached the Senior Judicial Officer of the District for the purpose on 21-3-1984 and in fact deposited the amount the same day as stated earlier. This reflects on her bona fides and she being a Pardanasheen lady, is entitled to greater protection under the law, as held in a recent judgment of the august Supreme Court in the case of Mst. Fazal Jan v. Roshan Din and 2 others, reported as PLD 1990 Supreme Court 661. The impugned judgment of the learned District Judge allowing her to take part in the proceedings and directing the trial Judge to decide the case on merits and in accordance with law, therefore, does not suffer from any jurisdictional error, patent illegality or material irregularity and is, consequently, maintained.
8. For what has been discussed above, I find no merit in this petition in revision which is hereby dismissed, leaving the parties to bear their own costs.
Petiton dismissed.