1. SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the order of the High Court, dated 23-3-1995, whereby the appeal filed by the appellant, herein, was dismissed.
2. The brief facts culminating in this appeal are that a pre-emption suit was filed by the plaintiff- appellant and pro forma respondent No.2 in the Court of Sub-Judge, Kotli, on 11-5-1992. On 20-7- 1992, the plaintiffs were directed to deposit 1/5th of the probable value of the shit land on or before 22-8-1992. On 22-8-1992, the Presiding Officer of the Court was on leave and the case was adjourned by the Clerk of the Court to 31-8-1992 for proper orders. On 31-8-1992, the counsel for the parties were present and the Presiding Officer was again on leave and, thus, the case was one more adjourned by the Clerk to 9-9-1992. On 9-9-1992, Sardar Muhammad Sharif Chughtai, Advocate, deputised .For the counsel for the plaintiff-appellant; the counsel for the respondent was also present. The Presiding Officer recorded the order that as 1/5th of the probable value of the suit land had not been deposited; the suit was being dismissed. An appeal was preferred to the District Judge which was dismissed; the appeal filed in the High Court also failed.
3. We have heard the arguments and perused the file. It has been argued by Raja Muhammad Siddique Khan, Advocate, the learned counsel for the appellant, that under section 21(4) of the Right of Prior Purchase Act, in case of default in depositing 1/5th of the probable value of the suit land, only plaint can be rejected and the suit cannot be dismissed. According to the learned counsel, the trial Court instead of rejecting the plaint dismissed the suit. Therefore, according to the learned counsel, the impugned order was not sustainable and should be set aside on this sole ground. The learned counsel has further argued that on 22-8-1992 and 31-8-1992, the Presiding Officer was absent and, thus, 1/5th of the probable value of the suit could not be deposited in his absence because before doing the needful, an order had to be obtained from the Presiding Officer for depositing the amount. The learned counsel further submitted that on 9-9-1992, there was heavy flood due to rain and, thus, the plaintiffs could not comply with the order of the Court even on that date as they could not attend the Court on the said date and only another Advocate deputised for their counsel. The learned counsel strenuously argued that even if no request is made by the party or its recognised agent for extending the time for depositing 1/5th of the probable value of the suit land the plaint cannot be rejected until and unless an explanation is sought from the concerned plaintiff and is considered by the Court. The learned counsel has further submitted that while considering as to whether the time should be extended for doing the needful in a pre-emotion case, strict interpretation of subsection (4) of section 21 of the Prior Purchase Act is not justified merely because the suit is one for enforcing the right of pre---emption.
4. The learned counsel has relied upon following authorities in support of his contentions:--- In case reported as Umar HayatAziz Ullah Khan etc. PLD 1956 Lah. 297, it has been observed that even if the plaintiff does not request for an adjournment to deposit 1/5th of probable value of the suit land, the plaint cannot be rejected until and unless the Court itself seeks explanation from the plaintiff or his recognised agent as to why the plaintiff failed to do the needful within time fixed by the Court and why his suit should not be dismissed for non---compliance of the order of the Court.
5. Faqir Muhammad v Mutwali PLD 1982 SC (AJ&K) 55, it has been observed that the High Court can extend time fixed for depositing the 1/5th of the probable value of the land on an application by the party, on its oral request or even suo motu. However, it has been observed that the discretion should be exercised one way or the other keeping in view the peculiar circumstances of each case and the discretion should be exercised one way or the other judicially and not arbitrarily. It has been observed that as the order to furnish security bond was flouted without any sufficient cause, the plaint was rightly rejected by the trial Court. Thus, the order of the High Court extending the time for making up deficiency in the security bond was set aside and that of the trial Court was restored.
6. Ch. Muhammad Azam, Advocate, the learned counsel for the respondents, has controverted the arguments advanced by the learned counsel for the appellant. He has argued that the plaintiffs or their counsel did not tender 1/5th of probable value of the suit land on any of the dates, i.e., 22-8- 1992 and 31-8-1992 or even on 9-9-1992. According to the learned, counsel although the Presiding Officer was on leave on 22-8-1992 and 31-8-1992 yet all the same the money could be tendered to the Clerk or ' Naazir' of the Court and no order of the Presiding Officer was required, as order to deposit the amount had already been made by him on the file. He has particularly emphasised that in the interim order dated 22-8-1992 which was written by the Clerk of the Court in presence of one of the plaintiffs and their counsel, it has been specifically mentioned that 1 /5th of the probable value of the suit land had not been deposited by the plaintiffs and, thus, the case was adjourned to 31-8-1992 for proper orders but no oral or written request was made on behalf of the plaintiffs that they were prepared to comply with the order of the Court. According to the learned counsel for the respondents, the conduct of the plaintiffs shows that they did not come with the money to do the needful and thus, they wilfully flouted the order of the Court. The learned counsel went on to argue that even on 9-9-1992, when the Presiding Officer was present and the suit was dismissed, Mr. Muhammad Sharif Chughtai, who deputised for the counsel for the plaintiffs did not make any request to extend the time for doing the needful or give any reason as to why the plaintiffs failed to comply with the order of the Court dated 20-7-1992. The learned counsel has relied on a case reported as Muhammad Arif Khan v. Jahandad Khan 1993 SCR 230, wherein it has been held that if the decree or order of the Court does not postulate that if a pre-emotion money is not deposited within time fixed by the Court, the suit shall stand dismissed, the Court retains seisin over the matter and can extend the time if the circumstances of a case so warrant. In the circumstances of that case, it was held that the time for depositing the pre-emotion money was rightly extended by the Court below.
7. I have given my due consideration to the arguments advanced at the Bar. The contention of the learned counsel for the appellant that under subsection (4) of section 21 of the Prior Purchase Act, a plaint can only be rejected and the suit cannot be dismissed is correct. However, in the instant case, the trial Court passed the interim order, dated 9-9-1992 Ordinarily, while rejecting a plaint, it is not written that which expression would be Urdu translation of the expression 'plaint is rejected'. The translation of the word 'plaint' in Urdu would be and not which means 'suit'. Thus, it cannot be said that the impugned order of the Court is tantamount to the dismissal of the suit rather it implies only rejection of the plaint. However, even if the expression is interpreted to mean 'dismissal of the suit', that would not make any practical difference so far as the plaintiff-appellant is concerned, because if the suit is deemed to have been 'dismissed' or it is taken to be a case of 'rejection of the plaint', in both the eventualities it would mean the end of the present suit. Thus, the contention of the learned counsel for the appellant that the appeal should have been accepted by lower appellate Courts on the aforesaid ground is not tenable, especially so when no such argument appears to have been advanced before any of the appellate Courts below.
8. The next question which needs resolution in the present case is as to whether on 22-8-1992 and 31- 8-1992 when the Presiding Officer of the Court was on leave, the plaintiffs could deposit 1/5th of the probable value of the suit land without obtaining any fresh order from the Presiding Officer. The learned Additional District Judge has observed while deciding the appeal that the amount could be deposited even in absence of the Presiding Officer because the prevalent practice is that the money is tendered to ' Naazir' of the Court who gives necessary receipt to the plaintiff concerned.
9. The observations of the learned Additional District Judge have not been assailed before the High Court or before this Court. I am of the view that if the plaintiffs had already been ordered by the Court vide its order, dated 20-7-1992 to deposit 1/5th of the probable value of the suit land, it was not necessary for them to obtain a fresh order from the Presiding Officer in that regard. Besides, it has not been averred by the appellant in the memorandums of appeals filed in any of the Courts below that he could not deposit 1/5th of the suit land on 22-8-1992 or 31-8-1992 due to the absence of the Presiding Officer. The memorandum of appeal filed before the District Judge shows that according to the appellant he could not do the needful on 9-9-1992 due to heavy rain. There was no explanation for making default on 22-8-1992 or 31-8-1992. It may be pointed out that 22-8-1992 was the date which was fixed by the Presiding Officer; the case was adjourned to 31-8-1992 by the Clerk of the Court. Thus, the order of the Court dated 20-7-1992 could be said to have been complied only if the needful would have been done on or before 22-8-1992 and not on 31-8-1992 or 9-9-1992 because no extension was either sought by the plaintiffs to do the needful nor the period was extended by the Presiding Officer. Needless to say that the Clerk of the Court could not extend the time nor he did it. Had plaintiff-appellant deposited the amount on 31-8-1992 or 9-9-1992 that could not have been compliance of the order of the Court dated 20-7-1992 according to which money was to be deposited on or before 22-8-1992 as stated earlier. It follows from what has been stated above, that the relevant date for the compliance of the order of the court was 22-8-1992 and not the subsequent dates fixed by the Clerk of the Court. Why the plaintiff-appellant failed to comply with the order of the Court on or before 22-8-1992, there is no explanation whatsoever by the plaintiff-appellant in any of the Courts below or before, this Court.
10. The next question arises as to whether the Presiding Officer could not reject the plaint without seeking an explanation from the plaintiffs or their legally recognized agent. The matter has been discussed in the case reported as Umar. Hayat v. Aziz Ullah Khan etc. PLD 1956 Lah. 297, referred to above. The relevant extract from the judgment is reproduced as under:--- I am of the opinion that before the learned Senior Civil Judge passed the order, he should have called upon the plaintiff to show cause why he should not pass that order. Every person against whom an order is to be passed should have an opportunity to show cause against the passing of the order. Had the learned Senior Civil Judge enquired from the plaintiff in this case as to why the deposit had not been made, the plaintiff would have asked for extension of time and would have given the explanation of this omission to deposit the amount as he has given before the learned District Judge. The order of the learned Senior Civil Judge does not show that he considered the question whether it was a proper case for extension of time or not. It appears to be an order which automatically followed the failure to deposit the amount. As was pointed out in Mehr Muhammad Din v. Pandit Anant Ram and others AIR 1939 Lah. 25 it is proper that when the Court is going to pass an order under section 22 of the Pre-emption Act, it should consider whether time for deposit should or should not be extended."
11. It is evident from the extract of the judgment, reproduced above, that in the aforesaid case the District Judge dismissed the appeal of the plaintiff-- appellant observing that he did not make any request to the trial Court for extending time for depositing the amount. However, on appeal to the High Court, the learned Judge did not agree with the observations of the District Judge and expressed the views that even if the plaintiff-appellant failed to make any request for extending time to the trial Court, it was incumbent upon the trial Court to ask the plaintiff as to why his plaint should not be rejected for the non---compliance of the order of the Court. The trial Court could not reject the plaint without first seeking the explanation of the plaintiff and, thereafter considering it.
12. The facts of the abovementioned case were identical to the case in hand. In the instant case, the order of the trial Court dated 9-9-1992 does not contain any explanation whatsoever on behalf of the plaintiffs and the order is mechanical in nature..
13. Therefore, I accept the appeal, set aside the impugned orders of the Courts below and remand the case to the trial Court to seek an explanation from the plaintiffs-appellants as to why the order of the Court was not complied on or before 22-8-1992 and thereafter decide the matter afresh according to law. No order is made as to the costs.
14. (Sd.)
15. CHIEF JUSTICE 20-12-1995.
16. BASHARAT AHMAD SHAIKH, J.---After going through the proposed judgment written by the learned Chief Justice, we find ourselves in full agreement that there is no explanation as to why the appellant failed to comply with the order of the trial Court to deposit the 1/5th of the probable value of the suit within the time fixed by the Court. With utmost respect, however, we are unable to agree that we should follow the judgment reported as Umar Hayat v. Aziz Ullah Khan etc. PLD 1956 Lah.
297. In Umar Hayat's case a learned Judge of the Lahore High Court expressed the opinion that before passing the order of rejection of the plaint the Court should call upon the plaintiff to show cause why the order may not be passed.
17. The relevant provision is contained in subsection (4) of section 21 of the Jammu and Kashmir Right of Prior Purchase Act. This provision is the same as in subsection (4) of section 22 of the Punjab Pre- emption Act, 1913. It runs as follows:--- "(4) 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 appeal dismissed as the case may be. "
18. In our opinion the time fixed by the Court to make the deposit or to furnish the requisite security can be extended by the Court but for doing so there should be a reasonable explanation as to why the order of the Court has not been complied with. It follows that the plaintiff has to put forward an explanation accompanied by a request for extension of time. The provision under reference is mandatory in nature and has to be strictly construed. The Court, however, cannot reject the plaint immediately. If an explanation for the default is given the Court is legally bound to consider whether the circumstances were such as to justify an extension of time. But our considered view is that explanation is to be given by the person who has failed to comply with the order of the Court and is not for the Court to seek it. In our view from the phraseology of subsection (4) the requirement of seeking an explanation is not spelled out. Seeking of explanations from litigants who have failed to implement the orders of the Court does not conform to the procedural law and does not seem to be necessary or practical.
19. In this view of the matter there is no valid reason to differ with the judgment of the High Court. We would, therefore, dismiss the appeal without making any order as to the costs.
20. (Sd.)(Sd.)
21. JUDGE JUDGE ORDER OF THE COURT In accordance with the view of the majority the appeal is dismissed with no order as to costs.
22. (Sd.)(Sd.)(Sd.)
CHIEF JUSTICEJUDGEJUDGE