By an order dated 20-2-79, Ch. Masood Akhtar Khan, Senior Civil Judge, Vehari allowed the request of the plaintiffs Ghulam Qadir Khan and others in a pre-emption suit filed against Ahmad Nawaz Khan and others to deposit 1/5th pre-emption money (Zar-e-Panjam) before 22-2-79. This order was challenged by way of a revision petition filed by Ahmad Nawaz Khan and others defendants- appellants and the same was accepted by Ch. Muhammad Saeed Akhtar, learned District Judge, Vehari, on 14-4-80. The District Judge, on entertaining the revision petition, had not stayed the proceedings in the trial Court; and the suit was finally decreed on 18-7-79, during pendency of the revision petition. The learned District Judge set aside the order of the learned trial Court and rejected the plaint of the suit under section 22(4), Punjab Pre--emption Act; and the result was that the decree dated 18-7-79 delivered by the learned Senior Civil Judge also came to be set aside.
The learned District Judge specifically observed that all the proceedings in the lower Court subsequent to 20-2-79 stood vitiated, when the impugned order dated 20-2-79 extending the period for deposit of Zar-e-Panjam did not hold the field, on having been rescinded in revision. This regular first appeal has been preferred by the unsuccessful plaintiffs/pre-emptors, assailing the judgment and decree dated 14-4-80 pronounced by the learned District Judge, Vehari.
2. 1 have carefully gone through the impugned judgment and have also considered the circumstances in which the learned trial Court had extended the time originally fixed for making the requisite deposit. The suit was filed on 23-12-78, the last working day before the vacations, and it was registered immediately after the winter spell on 2-1-79, when the defendants-appellants were ordered to be summoned for 20-2-79, and the plaintiffs were directed to make good the deficiency in court-fee, .if any, calculated on the basis of the annual net profits (Fard Khalis Munafa). They were also required to deposit Zar e-Panjam in the amount of Rs.109,454, ostensible sale price of the suit land being Rs.547,725.
3. The plaintiffs moved an application on 18-2-79, praying that they be allowed to furnish personal security instead of making cash deposit, and in any case time-limit fixed for the purpose be extended, the reason being that they had not been able to collect the funds on account of fall in the price of cotton and inability on the part of the commission agents to part with the whole price of the cotton sold away to them or through them. The application was ordered to be put up on 20- 2-79, when, in presence of counsel for the plaintiffs, it was accepted, in certain measure, and the plaintiffs were asked to deposit the Zar-e-Panjam before 22-2-79.
4. The extension thus was for hardly two days, as the deposit was ordered to be made by 21-2-79, instead of 19-2-79. The sole consideration that had mainly weighed with the learned District Judge was that the other side, namely, the defendants-appellants had not been heard by the learned trial Judge, before passing the order in question. When the application was submitted on 18-2-79, by the plaintiffs, the learned counsel for the defendants was obviously not in attendance, as it was not a date of hearing in the suit, but he was supposed to have attended to Court on 20-2-79, to which date the case stood adjourned, after its entertainment on 2-1-79. It cannot however be urged that the learned counsel for the defendants had taken no exception to the extension of time.
The order was passed in almost an executive fashion, although the trial Judge was not, at the same time, being indulgent in accommodating the plaintiffs, as he had not acceded to their request of furnishing personal security, and he had also granted only two days extension in time for making deposit of Zar-e-Panjam in cash. If however he had endeavoured to be more meticulous, he could have called upon the learned counsel for the defendants to make appearance before him, on the same day, i.e. on 18-2-79, or on the following day, i.e. on 19-2-79, by serving him with a notice, delivered to the plaintiffs by hand (Dasti). It has not been explained whether or not 19-2-79 was a holiday. Had it been a closed day, the deposit had essentially to be made by 18-2-79, for that could not be done on 19th, and even on 20th, the initial order being that Zar-e-Panjam must be deposited before 20-2-79.
4. Learned counsel appearing for the appellants (plaintiffs in suit) has drawn the attention of the Court to the fact that although the trial Court had vide order dated 20-2-79 allowed extension in time and Zar-e-Panjam could be deposited before 22-2-1979, they were very vigilant and had made the deposit on the same day i.e. 20-2-1979 and thus there was default of only one day, as according to the original order the initial deposit had to be made before 20-2-1979. The contention is that the Court had a discretion in the matter and such discretion could be exercised on a request made by the pre-emptor in writing or orally, and even suo motu, as has also been pronounced in Charagh Din and others v. Nizam Din and others (PLD 1985 Lahore 101). In this authority, however, it has been held that the pre-emptor's lapse in the matter of payment of Zar-e-Panjam would automatically entail rejection of the plaint under section 22(4), Pre-emption Act, and inability to arrange funds for making the deposit would not be a valid ground for granting extension in time for the purpose.
5. Learned counsel for the defendants-respondents has cited in support of his contention that the plaint had necessarily to be rejected in accordance with the aforesaid provisions of Pre-emption Act, as was in force then, Niaz Muhammad and other's v. Mian Fazal Reqib (PLD 1974 SC 134) and Abdul Waheed and others v. Ibrahim and others (PLD 1966 Baghdad-ul-Jadeed 8). Plaintiffs' failure to deposit 1/5th pre-emption money, as ordered by the Court, within specified time would entail consequences contemplated by section 22 (4), Punjab Pre-emption Act. Mere inexperience of lawyer, or minority of the plaintiff would constitute no good excuse for not complying with the orders. In the latter case the plaintiffs' pleader had prayed for extension for only one day, stating that he could not make the deposit with the Court due to some mis--understanding, although the plaintiffs/pre-emptors had made over to him the money. The plea that the plaintiffs had acted diligently was not permitted to prevail and the order of the trial Court rejecting such prayer was held to be legally sound. It was also ruled that the right of pre-emption was predatory in character, constituting drawback on the freedom of contract and security of title, and provisions of Pre- emption Law, therefore; must be construed and complied strictly against claims of pre-emptors.
6. Requirement of the plaintiff/pre-emptor making deposit of 1/5th of the pre-emption money is intended to guard against vexatious and fictitious litigation and to secure a guarantee for the vendee against mala fide invasion on his title and against frivolous proceedings on the part of the prospective pre--emptor. If the order made under subsection (1) of section 22 is not complied with, the consequence of suchnon-compliance would be that the plaint shall be rejected. Once failure on the part of the pre-emptor has occurred, a valuable right accrues in favour of the vendee, and he will be entitled to be heard and ask for rejection of the plaint. If there is a request made for extension in time for making the deposit, the vendee has a definite right to be heard before extension is granted and such extension has to be given by an express order made on application of mind as regards the circumstances necessitating extension.
7. It has already been observed that the learned Judge has granted the extension in almost an administrative manner. He was, of course, very cautious in acceding to the request of the plaintiffs/pre-emptors, whose request for furnishing personal security was turned down and who was granted extension for a bare minimum of two days. Time however could not be enlarged, except on the plaintiffs showing a sufficient cause, and on hearing the other side. The excuse that there had been a fall in the price of cotton was one of vague infirm nature and such pretence could well be put forth by any body. 1 be said that it had provided a valid and a sound premises for extending to pre-emptor's indulgence, in any measure. It was certainly an insufficient inconcrete ground for the `accommodation' asked for by the plaintiffs.
8. 1 have taken note of the fact that the learned trial Judge had not exercised his discretion in the matter in accord with sound and salutary principles governing exercise of such discretion, and had not passed a speaking order, by applying his judicial mind and discussing, even briefly, the circumstances, which warranted or justified extension in time. The order had originally been passed on 2-1-1979 and the next date was 20-2-1979, and thus adequate time had been afforded to the plaintiffs/pre-emptors, who should have acted with due diligence and made every effort to arrange for the funds. It was nobody else's business but was the sole worry of the pre-emptors to have collected money and made the deposit and that too not necessarily on the last day. Cautious people would do it well in time, and would not incur the risk of failure of their cause by reason of likely default that could occur in the matter of making such deposit. It will not be denied that the stated inability did not constitute a cause beyond the control of the plaintiffs, as for instance an act of God Almighty, sudden death of a close relative, the transport having met an accident, or a robbery having been committed in a bank in which the plaintiffs' money was lying etc., etc. In granting extension of time to the plaintiffs, in a unilateral manner, and without apparent application of mind, the learned trial Judge had acted with material irregularity, it will not be disputed. The learned District Judge, therefore, was justified in interfering with the order and in safe--guarding the corresponding rights of the defendants-vendees.
9. Order of rejection of a plaint under section 22(4) of Pre-emption Act is a decree. RFA as such is competent, as a similar order had been passed by the learned District Judge, who had also proceeded to set aside the ex parte decree, which had, during pendency of the revision petition before him, been awarded by the learned trial Court. Obviously when the plaint itself was held M liable to rejection, by reason of lapse on the part of the plaintiffs in matter of deposit of Zar-e- Panjam by the due date, further proceedings in the suit would be rendered a nullity.
10. For the foregoing reasons, impugned. judgment/decree dated 14.4-1980 delivered by the learned District Judge, Vehari, non-suiting the plaintiffs/pre-emptors is found to be unexceptionable; and the appeal having no merit is hereby dismissed.