' Abdul Maroof, plaintiff-respondent filed pre-emption suit in respect of a residential house situated within the limits of village Mir Abad (Charsada). The trial Court vide order, dated 19-9-1996 directed the plaintiff to deposit 1/3rd of the sale consideration i,e, Rs,1,01,555 before the 13th of October, 1996.
The plaintiff on 10-10-1996 through an application applied to the learned trial Judge seeking permission for the deposit of Rs,33,845 as 1/3rd of the pre-emption amount per their calculation.
The plaintiff was granted such application on the same date.
' As the plaintiff failed to deposit 1/3rd of the pre-emption amount before the date specified by the Court i,e, 13-10-1996, therefore, the petitioner/defendant vide application, dated 22-12-1996 requested the trial Court to dismiss the suit. The plaintiff was asked to file reply to such application: After hearing the arguments of the parties, the learned trial Judge accepted the application of the defendant and dismissed the suit.
2. The present respondent aggrieved of such dismissal went in appeal to the Court of Additional District Judge, Charsadda where through the impugned judgment and decree, dated 20-12-1997 the appeal was allowed and the case was remanded back to the trial Court for further trial proceedings. Hence, the defendant-petitioner has come up in revision before this Court.
3. Learned counsel for the petitioner argued that under section 24(2)_ of the N.-W.F.P. Pre-emption Act, 1987 (hereinafter referred to as the Act), the plaintiff was required to deposit 1/3rd of the pre- emption amount before 13-10-1996 and having failed to comply with the direction of the Court, the suit was rightly dismissed. It was next argued that the stand taken by the plaintiff with regard to 11- 10-1996 being Friday and 12-10-1996 to be closed day for the Bank would not justify the deposit of the 1/3rd of the preemption amount after the specified date. Next it was contended that it is an admitted fact that on 12-10-1996 the trial Court was functioning and there was no Court holiday, therefore, as required under section 24(1) of the Act, the deposit was to be made in Court and not in the Bank or Government Treasury. Learned counsel also referred to the Bank's receipt appended with the file and submitted that conceding for the sake of arguments that 11th and 12th October, 1996 were closed days but the Bank receipt shows the same to be filled in on 10-10-1996 and as on the same day on application by the plaintiff the trial Court directed the deposit of 1/3rd of the pre- emption amount, the money should have been deposited in the Bank on 10-10-1996. He next argued that there are concurrent findings of the two Courts below with regard to clear direction to the plaintiff to deposit the pre-emption money before 13-10-1996. Learned counsel also referred to section 34 of the Act and submitted that though the provisions of C.P.C. Shall mutatis mutandis apply to the proceedings under the Act but still provisions of section 148, C.P.C. Can be pressed into service whereby the Court is empowered to extend the time because such power is vested in the trial Court or Court of appeal only if the proceedings and direction for doing some act on or before the specified date is relatable to the proceedings under the Civil Procedure Code. It was next argued that learned Appellate Judge had committed an illegality by taking into account the certificate issued by the Manager of the Bank regarding 12-10-1996 to be non-working day for the Banks. In this behalf it was submitted that no application was made by the appellant to the Appellate Judge for placing on file such certificate and that no notice of certificate was given to the petitioner particularly when the appellate order is manifestly based on such certificate. It was also argued that the plaintiff short deposited an amount of Rs,6.67 and such deposit of short amount has been considered to be a negligible amount which in the opinion of the learned counsel for the petitioner was not correct. It was also stated that the Appellate Judge could not have accepted the contention of the appellant regarding fulfilling the deficiency of the deposit of amount of Rs:667 because there was no application before the Appellate Judge for the extension of time regarding the deposit of short amount.
' Learned counsel in support of his contentions argued that a Division Bench of this Court in case of Tahir Binyamin Khan v. Mst. Dr. Mumtaz Begum Gandapur and 9 others (PLD 1997 Pesh. 158) has held that provisions of section 148, C.P.C. Are inapplicable when time is fixed by the trial Court for the deposit of 1/3rd of the pre-emption amount because the Act being a special law, the provisions of general law would not override its effect. In support of the plea that short amount once deposited, deficiency cannot be filled up, reference was made to Muzaffar v. Ali Khan and 3 others (1989 CLC 2342) where for short of four paisas in the 1/3d preemption amount the suit was dismissed on the ground that the order of the trial Court has not been complied with. In support of the contention that time once fixed and specified cannot be extended by the Court, reference was made to Shah Behram v. Akbar Khan (PLD 1992 Pesh. 18).
4. On the other hand, learned counsel for the respondent submitted that the petitioner has deposited the amount within the specified time and that the trial Court has wrongly dismissed the suit. It was further argued that the respondent has applied for permission to deposit the pre- emption amount on 10-10-1996 which was well Within time and the two days following it being closed day as the National Bank of Pakistan was closed on 10-10-1996 being Friday (in those days Friday used to be weekly holiday) while on 12-10-1996 the Bank was not receiving Government dues being closed day for the Banks and it was, therefore, that the respondent on the very next day i,e, 13-10-1996 deposited the pre-emption money as ordered by the Court. He further argued that although section 24(1) of the Act provides the deposits of pre-emption money "in Court" but submitted that there is no law which provides for the cash deposit before the Court and it is always either the Government Treasury or the National Bank of Pakistan where such-like amounts are deposited. He accepted the position that on 12-10-1996 though the Court was functioning but the Bank was closed. He referred to Umar Hayat v. Azizullah Khan etc. (PLt) 1956 Lahore 297) and submitted that where treasury was closed on the last day allowed for deposit, though Court was not closed, deposit made on the next day in the treasury or Bank when it opens was held to be deposited in time. Learned counsel also referred to the same judgment and submitted that the learned trial Judge instead of dismissing the suit of the respondent-plaintiff should have issued a show-cause notice and should have solicited the reasons from the respondent for the deposit of the amount on 13-10-1996. He also relied on Obaid-ud-Salam and others v. Faiz Muhammad Khan and others (1987 SCMR 216), PLD 1962 W.P. (Pesh.) 183 and stated that under section 10 of the N.- W.F.P. General Clauses Act if an act is to be done on a particular date and such date is a holiday, such act is then to be done on the day following the closed day. He also relied-on Mst. Mumtaz Begum v. Abdul Wahid (1990 CLC 1305): It was also argued by the respondent that certificate issued by the Bank Manager was an official communication to the Court and the learned Appellate Judge had rightly taken notice of the certificate. He submitted that short deposit of Rs,6.67 was an inadvertent mistake and it should not deprive the petitioner from the right of pre-emption and that the amount was so meagre that if the respondent could deposit Rs,33,845 he could conveniently deposit the short amount as well. It was contended that the wrong calculation of the meagre amount is to be attributed to the trial Court because under section 2(1) of the Act it is for the Court to specify the amount in figures. It . Was also argued that the Appellate Judge would validly extend the time by directing to cover up the short payment by depositing the same because the appeal is continuation of the trial and reference was made to section 107, C.P.C.
5. After hearing the learned counsel for the parties, I am of the View that the learned trial Judge was correct in dismissing the suit of the plaintiff-respondent. There are two grounds and either of the same day itself even if taken independently are such which would extinguish the right of the plaintiff-respondent qua pre-emption regarding the suit property. Section 24(1) read with subsection (2) of the Act is a mandatory provision of law and any default committed or deviation made entails dismissal of the suit. It is well-established principle of law that the provisions of enactment if require some act to be done, it is to be done in the manner as prescribed in the State and if the same is not accordingly done and the consequences are penal as under section 24(2) of the Act, if plaintiff fails to deposit 1/3rd of the sale price within the period fixed by the Court, the suit is liable to dismissal. In this case, the trial Court vide order, dated 19-9-1996 directed the plaintiff- respondent to deposit the 1/3rd of Rs,1,01,555 before the date i,e, 13-10-1996. The calculation of the amount is not expected of the Court and the parties interested on its own risk and costs has calculated whereby he has deposited less amount of Rs,6.67. In the case of Muzaffar v. Ali Khan and 3 others (1989 CLC 2342) plaintiff/pre-emptor was non-suited by short deposit of four paisas only when he did not comply with the order of the Court. Suit that was dismissed by the Trial Court Judge was upheld by this Court in revision. There is no evidence that the challan was prepared by the Court or Moharrir of the Court for which the liability should be that of the Court or the Moharrir but as is evident from the Challan Form, dated 10-10-1996, the same was done by the plaintiff- respondent and on this ground alone the learned trial Judge was correct to have dismissed the suit.
6. The deposit of pre-emption amount on 13-10-1996 is definitely beyond the period fixed by the trial Court and the money should have been deposited before the date of hearing to which the case was adjourned i,e, 13-10-1996. The order was passed on 19-9-1996 and respondent has voluntarily chosen to file an application before the trial Judge on 10-10-1996, seeking permission to deposit 1/3rd of the amount. The perusal of the application indicates that the calculation of the amount is made by the plaintiff-respondent and that on the same day he was allowed to deposit the amount. It was a duty of the pre-emptor-plaintiff to have been vigilant and he instead of waiting till 13-10-1996 could have promptly deposited the amount. Supposing that the pre-emptor- plaintiff was to arrange the amount but having made application on 10-10-1996 it is but safe to presume that by then the respondent had arranged the amount of Rs,33,845, as given in his application. He should have deposited the 1/3rd of the amount on 10-10-1996 but he did not do so and waited till 13-10-1996. The Challan Form, photo copy of which is available on the original record, shows that the same was filled in on 10-10-1996 but the amount was deposited/received by the Bank on 13-10-1996. There is no explanation on the record as to why the plaintiff having filled in the challan and having obtained the permission of the trial Judge did not deposit the amount. The consent lethargic attitude as displayed by the plaintiff-respondent commencing from 19-9-1996 and including 10-10-1996 is sufficient demonstration to show that he was not serious about the enforcement of his right. A person with such attitude is not entitled to any relaxation even if allowed under the law. The contention of the learned counsel for the petitioner with reference to the order of the learned Appellate Judge whereby the appeal was allowed and plaintiff was directed to cover up the deficiency of the short payment definitely amounts to the extension of time for which no request appears to have been made through filing an application before the Appellate Judge nor it was the case of the plaintiff-respondent before the learned trial Judge. No doubt that appeal is continuation of the trial but there is equally no cavil to the proposition that the Appellate Judge has got the same powers are exercisable by the trial Court. Under the law when the trial Court has once fixed the period for the deposit of 1/3rd of the pre-emption money, becomes functus officio regarding extension of time, the same would be equally applicable to the Appellate Judge. The admission of the certificate purportedly issued by the Manager of the Bank would exonerate the respondent to have proved that 12-10-1996 was a closed day for the Bank. Even otherwise if the same was proved, I am of the humble view that the requirement of the law under section 24(1) of the Act is the deposit of 1/3rd of the sale-price in Court. Section 24(1) and (2) is given as under:- "24. Plaintiff to deposit sale price of the property.---(1) In every suit for pre-emption the Court shall require the plaintiff to deposit in such Court one-third of the sale price of the property in cash within such period as the Court may fix: ' Provided that if no sale price is mentioned in the sale-deed or in the mutation, the Court shall require the deposit of one-third of the probable value of the property.
(2) Where the plaintiff fails to deposit one-third of the sale price or the probable value of the property within the period fixed by the Court, his suit shall be dismissed."
A plain reading of section leads to an unambiguous interpretation that in a pre-emption suit the Court seized of the trial would direct/require the plaintiff to deposit 1/3rd of the sale-price of the property in cash within such period as the, Court may fix. Subsection (2) of section 24 makes it obligatory on the trial Court to dismiss the suit where plaintiff has failed to deposit 1/3rd of the sale price within the period fixed by the Court. The language as used in section 24(1) is significant respecting the mode and the time of payment of 1/3rd of the pre-emption amount. It requires cash payment to be deposited in such Court (the underlining is for emphasis) Similarly, the time is to be fixed by the trial Court and the section does not visualise an eventuality for the extension of time once it is fixed.
' In view of plain reading of section 24(1) read with sub-clause (2) of the Act and keeping in view the conduct of the plaintiff-respondent, I am of the firm opinion that the learned trial Judge had acted correctly in dismissing the suit of the plaintiff-respondent on the ground that he has failed to comply with the order of the Court. Resultantly, this revision petition is allowed, judgment and decree of the Appellate Judge are set aside and that of the trial Court are restored. No order as to costs.