1. MUHAMMAD MAHMOOD BHATTI, J.- This appeal is directed against the order of the Administrative Civil Judge, Multan, dated 15-10-1963, by which the plaint of the appellants had been rejected under section 22(4) of the Punjab Pre-emption Act.
2. According to the facts of the case, the appellants filed a suit for the recovery of possession on the basis of pre-emption on 13-4-1963. On 22-5-1963, the learned Administrative Civil judge, Multan passed the following order ; Directing the plaintiffs-appellants to deposit zar-a panjam amounting to Rs. 40.0,J0 before 23-7 -1963 and tire date for the service of the defendants. Respondents was fixed for 24-7-1963.
2. It appears that instead of depositing the zar-a panjam on 22-7-1963 the appellants deposited on 23-71963 and an objection was raised by the respondents ware submitting the written statement that the appellants were requited to deposit zar-e-panjam before 23-7-1963 which had riot been deposited. The defendants-respondents also submitted air application under section 22(4) of the Punjab Pre-emption Act requesting the Court for the rejection of the plaint for non-compliance of the Court order. The appellants plaintiffs submitted a written statement on 14-10..1363 and tools up the plea that the dale on hearing was fixed for 24-7-1.963 and before that data i. e. 23-7-1963 zar-a panjam amounting to Rs. 40,000 had been deposited. Relishing the force of the objection of the defendants-respondents and also by way of abundant caution the plaintiffs appellants filed an application on 14-10-1963 for the extension of time anti again reiterated tint too date of hearing was fired for 24.7-1963 end the plaintiffs-appellants were required to deposit the zar-a panjum by 233-7-1963 which had been deposited and if at all this plea wag not acceptable they prayed for extension of time. This application was accompanied by an affidavit. The Learned Administrative Civil Judge held that the plaintiffs-appellants were required tea deposit the zar-a panjam before 23-7-1963. As they had nod complied with the order the plaint was rejected under section 22;4) of the Punjab Pre-emption Act. Against this judgment and decree of the learned Administrative Civil Judge, Multan dated 15-10-1963 the present appeal was filed in the High Court.
3. The learned counsel for the appellants has vehemently contended that the order dated t2-5- 1963 is ambiguous and does not convey a clear impression. Normally, there is only one date fixed for appearance of tire parties in Court and by that time the pre-emptor is required to deposit zar- e-panjarn, but, in this particular case, two dates were fixed and the plaintiffs-appellants have all along been under a bona fide impression that the zar -e- panjam was to be deposited before 24- 7-1963.
3. The learned counsel further contended that the word used in the order of the Court dated 22-5- 1963 is not synonymous with the words. The latter words gives a comprehensive meaning white the former does not convey the exact meaning. According to him, it should have been stated ;- Since the wordaccording to his contention, is missing, it has caused confusion and instead of depositing the amount on 22-7-1963, the same was deposited on 23-7-1963 under a bona fide belief. The learned counsel for the respondents has relied upon certain authorities to 'how that the words and mean the same thing. There does not appear to be any dispute that; and are synonymous in their meaning and the plaintiffs appellants pre-emptors were required to deposit zar-a panjam before 23.7-1963 to compliance with the Court order dated 22----19:93 meaning thereby that the amount should bee deposited on 22-7-1963 and not on 23-7-1963. The authority cited by the learned counsel far the respondents may not be discussed because it has already been held that the word and, convey the same meaning.
4. Now, the sole question for determination is whether in such circumstances one days extension can be granted to the appellants because it is admitted by the parties that the appellants bad deposited the entire zar-e- panjam amounting to Rs. 40,000 on 23-7-1963. There appears to be some force in the argument of the learned counsel for the appellants that normally one dote is fixed for the appearance of the parties before that cite the Court normally directs to deposit zar-a panjam, but, ire this case, two different dates, ie. 23-7-1963 and 24-7-1963 war, fixed, which was likely to cause some confusion in the mind of the appellants. It may be stated here that when an objection was raised by the defers-'ants-respondents in the form of a miscellaneous application, again the plaintiffs-appellants took up tie stand that the date of appearance before the Court was 24-7-1963 and the zar-a panjam wag to be deposited before that date which was actually deposited. This omission to deposit the zar-e-panjam before 23-7-1963 appears to be the result of bona fide belief of the plaintiff's-appellant that the amount was to be deposited? On 23-7-1963.
5. Anyhow an application was made on 14-10-193 for extension of time but the learned tarred trial Court refused to extend time. The learned counsel for the respondents has relied on Saru"ar Zorawar Singh std. v_ Jasbir Singh etc. (AIR 1938 Lah. 606). In this case while enterprising section 22(5)(b) it has been held by a Division 'Bench that time once fixed cannot be extended. Section 22(5) (b) deals with the furnishing of security by the plaintiff in compliance with the order of the Court. With great respect to this Division Bench authority of the Lahore High Court, the view taken is not in accordance with the law laid down by the Supreme Court because subsections (4) and (5) are to be read together. The word "security so furnished" refer to the furnishing of security mentioned in subsection (4) and the Court is competent to extend the time even while deciding the case which falls within the purview of section 22(5) (b) of the Punjab Pre-emption Act.
6. Section 22(1) (4) requires the plaintiff to furnish security or to deposit 1/5th of the purchase price.
7. This requirement appearsto be intended to guard against vexatious and mala fide litigation. This section does not contain any word to indicate that choice between the two forms of guarantee can be made only once. If the Court has ordered to furnish security the Court has power to vary its original order and exercise a fresh option to'4 require the plaintiff to deposit cash to the amount of 1 /5th of the purchase money although this order can be varied before the framing of issues, Reliance can be placed upon Ch. ZuyYqar Alt v. Man Akhtar Islam etc. (PLD 1967 SC 418).I This further indicates that time once fixed within which the security was tot be deposited can be varied subsequently.
8. Section 2 3(1)(4) of the N; W. F. P. Pre-emption Act, 1950 is the corresponding provision of section 22(4) of the Punjab Pre-emption Act, 1913. While interpreting the corresponding provisions of the Now. F. H. Pre-emption Act the Supreme Court has held that time is extendable by an express order of the Court anal the only condition is that in such circumstances the vendee has a right to be heard before extension is granted. Reliance can be placed on Niaz Muhammad Khan v. Mian Fazal Raqib (PLD 1974 SC 134). The relevant observation is at page 137 which reads as follows : "Our answer, therefore, to the question formulated in this appeal is that the Court cannot be deemed to have extended time fixed by it for furnishing security under section 23(1) of the Act merely by accepting the security after the specified period. The time can be extended by an express order made after application of the mind to the circumstances necessitating extension.
9. The vendee has clearly a right to be heard before extension is granted"
10. This authority of the Supreme Court lays down a law that the Court has the jurisdiction to extend time.
11. Section 22(4) of tae Pre-emption Act itself speaks about the time fixed by the Court or within such further time as the Court may allow to make deposit meaning thereby that the Court can fix time under the abovementioned provision for making deposit. It can also extend time under section 148 of the Civil Procedure Code. The latter provision gives the Court a general power to enlarge the period fixed or granted for the doing of any act. Section 148 of the Code of Civil Procedure empowers the Court to extend time even if the original period fixed has expired. The phrase used in section 22(4) "his plaint shall be rejected or his appeal dismissed" does not mean that the plaint must be rejected without ascertaining whether it was a fit case where the Court should have extended time. The Court must have considered the circumstances which might have led it to.
12. Extend time if cogent reasons are shown by the plaintiff to justify extension of time.
13. 1972 SCMR 296). In this authority the zar-a panjam was to be deposited before 24-5-1968 but the respondent failed to deposit the amount on 23-5-1968. The plaintiff moved an application for extension of time. The extension was granted up to 31-5-1968. The amount was not deposited on 31-5-1968, but, in fact, it was deposited on 1-6-1968. An objection was ratted by the other side and it was held by their Lordship3 in the following words;- " . We are satisfied that the respondent had made a validtender to the Court by getting the challan passed and by making an effort to make the deposit within time. The learned Single Judge was perfectly justified in observing that this was sufficient compliance of the order dated the 23rd May 1968. . :'
14. On the basis of this authority and in view of the circumstances attending to the ease, zar-e- panjam deposited on 23-7-1963 can be treated as a valid tender to Court and was sufficient compliance with the order of the Court.
15. The case can be examined from another aspect. The learned trial Court while dismissing the suit had made the following observation in the judgment ; "Moreover, I might have considered this application favourably had it been made on 23rd July, 1963.
16. As it has been presented after a considerable delay I would not accept this application."
17. The observation of the learned trial Court clearly indicates that if any application oral or written was made on 23-7-1963, 1,e. On the same date, he would have considered this application favourably meaning thereby that lie would have extended time in favour of the plaintiffs- appellants. If this was an important consideration before the learned trial Court then suo motu they could have been extended by the learned trial Court. Reliance can be placed on Malik Hidapat Ullah etc. v. Murad Alt Khan (8 L D 1972 g C 69") wherein it has been laid down by their Lordships that suo motu extension of time can tae granted in deserving cases. The relevant part of the judgment is at page 72 which reads as under; "The Punjab Pre-emption Act does not prescribe any procedure for obtaining such extension of time 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 nojurisdiction, 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 Statute or in the rules made under the Statute expressly providing that the Court shall act 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 we are clearly of opinion that it could ---under subsection (4) of section 22 extend time, then it could do so either on the application, written or oral, ofparty or even suo motu where the justice of the cause so demanded."
4. In view of the observations made above, we accept the appeal, extend the time by one day ie.
18. Up to 23-7-1963 and hold that the zar,e panjam deposited by the plaintiff's-appellants on 23-7- 1963 shall be considered to be a deposit within the extended period. With this direction the case is remanded to the learned trial Court for a fresh decision on merits. There will, however, be no order as to costs.