' IFTIKHAR MUHAMMAD CHAUDHRY, J.---This petition has been filed against judgment of Peshawar High Court dated 7-4-2000 whereby Civil Revision No, 38 of 1997 filed by the respondent has been allowed and concurrent findings of two Courts below have been reversed.
2. Precisely stating facts of the case are that petitioner instituted a suit for possession through pre- emption on 27-11-1995 against the respondent. Trial Court directed the petitioner to deposit 1/3rd of sale price in the Court by 3-1-1996. On this date petitioner could not deposit the amount as it was declared holiday due to winter vacations. However, on 4-2-1996, an application was filed by the petitioner seeking permission to deposit 1/3rd of sale price with the explanation that due to vacations and his illness, he could not deposit this amount. The application was allowed and on the same date deposit was made. Against the said order dated 4.2-1996, an appeal was filed before the learned Additional District Judge, Haripur by the respondent, who dismissed the same on 8-12-1996. Against this order civil revision was filed, which was allowed by the learned High Court by following the judgment of this Court reported in Jahanzeb Khan v. Muhammad Iqbal (2000 SCM R 365). As such the instant petition has been filed.
3. Learned counsel for the petitioner, inter alia, contended:--
(i) The Civil Judge had discretion to extend the period fixed for deposit of 1/3rd sale price and when the discretion has been exercised judicially, the High Court, in exercise of its jurisdiction under section 115, C.P.C. Was not competent to set aside the said order of Trial Court and Appellate Court dated 4-2-1996 and 8-12-1996 respectively.
(ii) The provisions of section 24(1) of N.-W.F.P. Pre-emption Act are not mandatory in nature despite the fact that law givers have used the word 'shall' but at time it can be read as 'may' to meet the circumstances which are beyond the control of the person to whom direction has been made for making the deposit. To substantiate his argument, he stated that in a number of statutes including section 13(6) of the Urban Rent Restriction Ordinance, 1959 word 'shall' has been used with regard to striking off the defence of a tenant who fails to make deposit of rent but this Court as well as High Court in a number of cases have condoned the delay in deposit of rent taking into consideration the facts and circumstances of the each case. He further stated that under provisions of sections 148 and 149, C.P.C. The Courts have been extending the period for deposit of court-fee. In this behalf he stated that even in repealed Pre-emption laws, both in N.-W.F.P. And Punjab, in such-like situation Courts have laid down that the discretion can be exercised in enlarging the time to deposit the 1/3rd of the pre-emption price keeping in view the facts and circumstances of the case. In this behalf he referred to Zulfiqar Ali v. Akhtar Islam (PLD 1967 SC 418) and Qadir Baldish v. Ni -ud-Din Khan (2001 SCM R 1091).
(iii) By means of section 24(1) o N.-W.F.P. Pre-emption Act, the lawgivers have placed the condi ion upon a pre-emptor to deposit 1/3rd of the sale price in order to nsure whether he has real intention to enforce his right and when aid amount has been deposited with a delay of few days then the pre-emptor cannot be non-suited for such hypertechnical reason.
(iv) That Courts have always euraged the decision of the cases on merits instead of denying or ranting relief on legal intricacies.
4. On the other hand, learned counsel appearing for caveator contended:-
(i) The provisions of section 24(1)(c) of N.-W.F.P. Pre-emption Act, 1987 are mandatory in nature because its subsection (2) has provided consequences of rejection of plaint for non-deposit of 1/3rd sale price, therefore, the Courts have not been left with discretion to extend the time at subsequent stage.
(ii) The discretion is to be exercised by the Courts only when law so provides. On the 'perusal of section 24(1)(2) (ibid), it indicates that no discretion can be exercised by the Court with regard to extending the period for deposit of 1/3rd sale price, therefore, the learned High Court, in exercise of its jurisdiction under section 115, C.P.C., has rightly corrected irregularity committed by the Trial Court and the Appellate Court.
(iii) The provisions of law cited by the learned counsel for the petitioners i.e, section 13(6) of the Urban Rent Restriction Ordinance and sections 148 and 149, C.P.C. Are different in nature and subject, therefore, the Courts have the powers to condone noncompliance of the provision of these laws whereas in the preemption cases, there is a dispute between the pre-emptor and the vendee regarding their rights in respect of immovable property, therefore, 'to safeguard the interest of the vendee, who has invested a huge amount, mandatory provision has been incorporated in section 24(2) of N.-W.F.P. Pre-emption Act calling upon the preemptor to show the intention by depositing 1/3rd sale price on the date fixed and if he fails to do so, it means that he has no intention in enforcing right of pre-emption.
5. After hearing learned counsel for both the parties, we are inclined to grant leave to appeal, inter alia, to examine the above contentions put forward by them.
6. As this matter relates to the property which has been purchased by the respondent and the petitioner has filed suit for pre-emption, therefore, in order to avoid any further complication office is directed to fix this case within a period of six months, subject to soliciting necessary approval from the Honourable Chef Justice.
7. Application for interlocutory relief is dismissed as not pressed.