CHAUDHARY MUHAMMAD TAJ, J.- This appeal is directed against the order of District Judge, Kotli, Passed on June 28, 1997, whereby an appeal filed against the order of Additional Sub Judge, Kotli; was accepted and plaintiff- respondent was directed to deposit one-fifth of the probable-value of the suit land.
2. The facts forming the background of this appeal are that plaintiff- respondent, Noor Muhammad son of Khushi Muhammad filed a suit on the basis of right of prior purchase, with regard to the suit land, in the Court of Additional Sub- Judge. Kotli. The suit Was resisted by the opposite side by filing the written statement; The trial Court directed the plaintiff on September. 28, 1993, to deposit one- fifth of the probable value of the suit land on dr before October 30, 1993, when plaintiff-respondent moved an application for extension of the on the grounds mentioned therein. The Learned trial Judge, after receiving the objections from the opposite side and hearing the parties, dismissed the application and the suit was also held to be dismissed for non-deposit of the requisite amount. In appeal filed against the aforesaid order was accepted vide the impugned order:
3. Kh. Abdul Basit, the Learned Counsel for the appellant raised the following points in support of the appeal:- i. That the plaintiff-respondent was directed to deposit the requisite amount in unequivocal terms who failed to comply the order of the Court, as such, the suit was liable to be dismissed; ii. That the application moved on behalf of the plaintiff for extension of the, was without any sufficient case, therefore, rightly dismissed by the trial Court and could not be granted by the first Appellate Court; iii. That the Certificate filed in support of the application, was, on the face of it, a bogus document worth no reliance, as such the order impugned herein is not maintainable; -
4. On the other hand, Mr. Khalid Mahmood Khaukhar, the learned Counsel for the respondent while controverting the arguments of the appellant's Counsel, argued in the following manner:- i. That the plaintiff-respondent moved an application for extension of the within the the fixed by the Court, supported by a certificate issued by a Medical Practitioner, whereby the case of extension., the illness of his wife was substantiated; ii. That there was sufficient cause for fix extension of the the which was not properly appreciated by the trial Court, as such, the first Appellate Court rightly interfered in the order passed by it; iii. That there was a bona fide in the application on behalf of the plaintiff for extension of the as he prayed in the application that due to cause shown therein, he could only arrange Rs. 20,000/-, as such wanted extension for the rest of the amount.
5. I have heard the learned Counsel for the parties and also gone through . The record with care.
The plaintiff filed a pre-emption suit on December 27, 1992. The trial Court, on. September 28, 1993 directed him to deposit the one-fifth of the probable value of the suit land on or before October .30, 1993, after receiving the written statement from the defendant. An application for extension of the on the grounds of plaintiff's wife having seriously fallen ill and being under treatment in a private Hospital in Rawalpindi, Pakistan,--was moved on October 30, 1993. The application after receiving objections from the other side, and hearing parties was- dismissed on November 30, 1993 when the suit was also held to be dismissed. However, an appeal filed with the District Judge was accepted vide the impugned order.
6. In a pre-emption suit, the Court shall, at or at any the before the settlement of issues, require the plaintiff to deposit in the Court such sum as in the opinion of the Court is equal to the one-fifth of the probable value of the property, or to give security to the satisfaction-of the Court for payment of sum not exceeding such probable value, within such the as. The Court may fix in his order, under section 21 of the Azad Jammu and Kashmir Right of Prior Purchase Act. If the plaintiff fails within the the fixed by the Court or within such further the as the Court may fix, to make deposit or furnish security, as the case may be. His plaint shall be rejected under Sub-section (4) of the aforesaid provision of law-. It may also be mentioned that the Court which asked the plaintiff to make deposit or furnish security, was fully empowered to extend the for compliance of its direction provided the requisite is made within the the fixed earlier by the Court and extension has to be granted in exercise of judicial discretion. The Proposition of extension of the came under consideration before the Supreme Court of Pakistan in Malik Hidayatullah's case (PLD 1972 SC 69) wherein it was observed as under: "-The Court was fully competent sup motu to extend the the when it had by its own at made it practicable impossible for the appellant to comply with its original order by adjourning the application for' furnishing security to the 6th of January, 1968. From the language of sub-sections
(4) & (5) (b) of section 22, it is apparent that the rejection of the plaint or the dismissal of the suit will be ordered if the plaintiff, fails to make the deposit within the "the fixed by the Court" or "within such further the as the Court may allow to make the deposit or furnish the security". This clearly contemplates that the Court has the power to extend the the. This is no doubt, a discretionary power, which like all other judicial discretions, must be exercised upon sound judicial principles, but it can, by no stretch of imagination, be said that the Court has no jurisdiction to extend the the at all. The Punjab Pre- emption Act does not prescribe any procedure for obtaining such extension of the but upon general principles, a Court has normally to be moved by an application of some kind, either oral or written. This does not, however, mean that the Court has not jurisdiction, in the absence of any such application, to grant- a discretionary relief where the justice of the case so requires. In the absence Of any provision in the Statue or in the Rules made under the Statute express providing that the Court shall at on the application of a party it cannot be said that such "an application is a condition precedent to the exercise of the power. The power does not become nugatory, if no application is made for invoking that power. If the Court could under sub-section (4) of section 22 extend the, then it could do so either on the application, written or oral, of a party or even suo motu where the justice of the cause so demanded."
The proposition was resolved by this Court in Ghulam Nabi's case (PLD 1991 AJK 47), wherein it was held as under: - "-Sec. 21-Suit for pre-emption-Grant of extension of the to pre-emptor to deposit one-fifth of purchase price of property in question-Validity- Court while requiring plaintiff to deposit in Court such amount as was equal to one-fifth of probable value of property as security, on his failure to deposit such amount, could extend further the for deposit of an amount or to furnish security failing which the plaint could be dismissed-Court was thus, empowered to extend the for compliance of its direction-Prayer for extension of the, however, must be made within the fixed by the Court and extension should be granted by Court in exercise of its judicial discretion-Plaintiff having made request for extension of the within the period fixed by the Court, extension was rightly granted by Court."
The proposition also attracted the attention of Azad Jammu and Kashmir Supreme Court in Qasim Hussain Shah's case (PLD 1984 SC AJK 150), wherein the following verdict was given:- "-Does all this constitute sufficient cause for extension of the? Sufficient cause means something beyond the control of the party. While determining the sufficient cause, the Court should be lenient and should overlook some negligence, i.e. And ordinary incident of a human affair but gross negligence cannot be condoned. Therefore, where the lapse in not- depositing the decretal within the is not due to any default or gross neglect on the part of a person, as the case is before us, but is due to the Court's neglect to do its duty, this would constitute a sufficient case for enlargement of the the which this Court is competent to do and the delay is to be excused.-"
7. The consensus of the aforesaid authorities is that the Court is empowered to enlarge the the fixed by it .To deposit one-fifth of the probable value of the property or furnish security to the satisfaction of the Court provided the application for extension of the is moved within the the fixed by it, in exercise of its judicial discretion.
8. In the present case, the plaintiff moved his application supported by an affidavit that due to his wife's illness, being under treatment in a Hospital in Rawalpindi, he could not arrange the requisite amount except Rs. 20,000/-. Therefore, for the reasons recorded in the application, prayed for further extension. The trial Court after hearing the parties, rejected the application on the ground that the certificate furnished by the plaintiff, did not confer any confidence for the reason that his wife is a dyspeptic patient while the certificate is issued by a doctor who is an Acupuncture Expert.
It was also observed in the order that the plaintiff claimed to be not present on the date he was directed to deposit the amount which is contradicted by . The record shown in the relevant interim orders. The learned District Judge allowed the extension of the through a remand order by accepting the appeal on the grounds mentioned in the application which were held to be supported by an affidavit and certificate issued by a qualified doctor.
9. I have critically examined the orders passed by the Courts below including the relevant interim orders And am of the view that there is no occasion to interfere in the order recorded by the District Judge, for the following reasons:-
(i) That the application for extension of the supported by an affidavit was moved within the the fixed by the Court and was further supported by a medical certificate issued by a qualified doctor;
(ii) that the plaintiff in his application mentioned that due to illness of his wife, he. Could not arrange the entire amount and was able to make arrangement of only Rs. 20,000/- which shows his, Bonafide intention that he was not frivolously litigating;
(iii) that the observation of the trial Judge with regard to the certificate tissued by a doctor for the the being issued by an Acupuncture Expert which is not relevant for the purpose, has no substance as there was no material available with him to come to a conclusion that the plaintiff's wife was a patient of some other disease while the relevant doctor was not concerned with it. It may be mentioned that the Doctor as it- appears from the Certificate, was a qualified doctor having also a Diploma in Acupuncture. Therefore, the observation wits rightly set, aside by the District Judge;
(iv) that the Learned District Judge after careful consideration, keeping in view the relevant facts and circumstances, proceeded to allow the extension of the. The exercise of discretion being based on judicial principles does not warrant any interference by this Court.
10. In view of the above discussion, the appeal is found to have no substance in it which is hereby dismissed, with no orders as to costs.