' Briefly the facts are that on 3rd January 1974, Faiz Muhammad Khan respondent filed the suit out of which the revision has arisen, against Riaz Ahmad petitioner for pre-emption of the land in dispute purchased for Rs, 1,00,000. In pursuance of this suit on 7th January 1974, the Adm. Civil Judge, Rahimyar khan passed an order under section 23 (1) of the Punjab Pre-emption Act for the deposit of Rs, 20,000 as the 1/5th preemption money in Court on or before the 7th February 1974. But on the 6th February 1974, the plaintiff filed an application in the trial Court praying for an extension of time to enable him to deposit the 1/5th pre-emption money of Rs, 20,000 in Court. In this application he alleged that the Doaba Commission Shop, Haveli was indebted to him and had promised with him to pay the money required by him before the next date of hearing. But that on the 6th February 1974, when he went to the Commission Agent for the money, he had put off the matter on the plea that he was hit by the recent floods, that there was slump in the prices of the Cotton, and the banks have been nationalized and were not willing to advance any money to him. The Commission Agent, therefore, expressed his regret that he could not make any payment in cash at the moment. He, however, gave a post-dated cheque for Rs, 40,000 in his favour payable on the 27th of February 1974. In these circumstances the plaintiff prayed that the date for the deposit of Zar-e-Panjum may be extended till after the 27th February 1974. The Court took up this application for consideration on 7th February 1974 and passed a hasty order, without any discussion, that there was sufficient cause for extending the time in favour of the plaintiff the deposit to be made on or before the 28th February 1974.
2. Dissatisfied with this order, the petitioner-defendant has come up in revision against it. I have heard the learned counsel for the parties in this revision before me. It is evident that the impugned order was passed in the absence of the petitioner without any notice to him. The impugned order was passed in alteration of the original order dated 7th January 197 by this extending the time for the deposit. In my opinion the trial Court acted illegally and with material irregularity in the exercise of its jurisdiction in not affording an opportunity to the defendant, who was vital A interested in controverting the allegations of the plaintiff opposing hi application. In this connection the learned counsel has rightly relied on the pronouncement of the Supreme Court in Niaz Muhammad Khan v.
Malik Fazal Raqib (1) which in a way supports the contention of the petitioner to the effect that the vendee is entitled to be heard before the grant of extension of time for the deposit of Zar-e-Panjum by Court.
' In my opinion the petitioner has a right to support the order dated the 7th January 1974, passed by the trial Court in the first instance and to oppose the second order passed in variation thereof.
Before me the learned counsel for the respondent has relied on Malik Hedayatullah and others v.
Mured Ali Khan (2). But the case is distinguishable.
3. On the face of it, the impugned order under revision is not a speaking order, there is no discussion of matter and it does not appear if the Civil Judge had applied his mind fully to the allegations in the applications. For this reason also the order cannot be sustained.
4. In my opinion, therefore this revision is bound to succeed. I find that the interest of justice demands that this case may be remitted to the trial Court for a decision afresh of the application dated the 6th (?) 1972 filed by the plaintiff after hearing both parties. Under section 23 (4) of the Pre-emption Act, this discretion is vested in the trial Court to pass any proper order in the circumstances of the case. Therefore, I have not deemed it fit to substitute my own discretion in the exercise of the revisional jurisdiction in the circumstances of the case.
5. For the foregoing reasons I accept this revision with costs and vacate the impugned order. This case is accordingly remitted to the trial Court for a decision afresh of the application in accordance with law.
(1) PLD 1974 SC 134
(2) PLD 1972 SC 69