This Constitutional petition seeks judgment/order dated 15.7. 2003 passed by the learned Additional District Judge, Bhakkar, whereby Respondent No, l's revision petition and his application under Order XVII Rule 3 CPC, were accepted and suit of the petitioner was ordered to be dismissed under Section 24(2) of the Punjab Pr-emption Act, 1991, to be declared as illegal, void and of no legal effect.
2. Precisely, facts relevant for disposal of instant petition are that Mst. Iqbal Bibi, the petitioner filed a suit for possession through pre-emption against a sale in favour of the Respondent No, 1 affected through Mutation No, 6636 dated 14.11.2002 for a consideration of Rs, 27,000/-. The suit was filed on 26.2.2003 and the learned trial judge, who was seized of the matter, directed the petitioner, the same day i,e, pn 6.2.2003 to deposit an amount of Rs, 9,000/-, one-third of the price shown in mutation. in question, within a period of three days. Besides order of deposit of one-third (Zar-e- Soim) notices were ordered to be issued to the respondent/defendant, who filed an application under Order XVII Rule 3 C.P.C. with the assertion that the petitioner was required to deposit an amount of Rs, 9,000/- (Zar-e-Soim) within three days time which lapsed on 10.2.2003 but this order was not complied with, hence, their suit was liable to be dismissed. This application was contested by the petitioner with the averment that she has already deposited `Zar-e-Soim' on 26.2.2003, within a period of one month form the date of order hence, her suit cannot be dismissed. Trial Court vide its order dated 27.5.2003 dismissed application of the Respondent No, 1 under Order XVII Rule 3 C.P.0 holding that the required amount had been deposited within the statutory period of 30 days and consequently suit is not liable to be dismissed.
3. The Respondent No, 1 aggrieved of the decision of the trial Court dated 27.5.2003 filed a revision petition before the learned Additional District Judge where he succeeded as his revision petition was accepted, order of the trial Court was reversed and application filed by him under Order XVII Rule 3 CPC was accepted and suit of the petitioner was dismissed. The petitioner has now come up in Constitutional jurisdiction of this Court for setting aside order by the revisional Court, with the prayer to grant relief, as noted above.
4. Learned counsel for the petitioner submits that `Zar-e-Soim' was deposited by the petitioner within a period of one month, as provided by Section 24 of the Punjab Pre-emption Act, 1991, and as such, her suit could not have been dismissed. He further contends that though the petitioner did not move for extension of time fixed by the Court, for deposit of Zar-e-Soim yet the orders of the trial Court whereby challan form for deposit of `Zar-eSoim' were passed/accepted and thereafter order dated 27.5.2003, dismissing respondent's application under Order XVII Rule 3 C.P.C.,- have in those an effect of extending time for deposit of the amount which, under law, could be extended suo-moto by the trial Court. It has also been urged on behalf of the petitioner that discretion of extension of time vested in the trial Court, as under law, time fixed by it could have been extended within the statutory period of 30 days and this discretion having lawfully been exercised in favour of the petitioner, could not have been interfered with by the revisional Court. Learned counsel for the petitioner also submits that the learned Additional District Judge, while exercising jurisdiction under Section 115 CPC against an order dismissing application of the respondent under Order XVII Rule 3 C.P.C. could not have dismissed the suit, as the same was not before him. According to him, at the verse revisional Court could sent back the case of the trial Court, by setting aside order dated 27.5.2003, passed on application of the respondent. Conversely, learned counsel for the respondent refuting assertions of the petitioner, supported the judgment/order of the revisional Court and submitted that under Section 24 of the Punjab Pre-emption Act, 1991, the petitioner was to comply the order passed, within time fixed by the Court and in case of her failure, her suit was to entail dismissed as envisage by Section 24(2) of the same Act. He also submitted that these provisions are mandatory in nature but escaped notice of the learned trial Judge and thus, were rightly invoked by the revisional Court in exercise of its jurisdiction under Section 115. CPC ---while is, meant for this purpose. He is support of his arguments referred to the cases of Jahanzeb Khan vs. Muhammad Iqbal (2000 SCM R 365) and Dur Muhammad vs. Abdul Sattar (PLD 2003 SC 828).
5. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record appended . herewith. It is not disputed by any of the parties that order of deposit was passed on 6.2.2003, requiring the petitioner to deposit Rs, 9,000/- being `Zare-Soim' within three days i.e till 10.2.2003. It is also not dispute that the petitioner deposited the required amount on 26.2.2003 and this deposit, though is within 30 days from the date of order of the trial Court requiring this deposit yet not within the time fixed by the Court. The only controversy which hinges between the parties, is whether deposit on 26.2.2003, has the effect of compliance of order dated 6.2.2003 or on account of late deposit even though within 30 days, would call for penal consequences as given in subsection (2) of Section 24 of the Punjab Pre-emption Act, 1991 Section 24 of the Punjab Pre-emption Act, 1991, is re-produced for ready reference and read as under:- .Section 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 such period shall not extend beyond thirty days of the filing of the suit; Provided further that if no sale price is mentioned in the sale-deed or in the mutation, or the price so mentioned appears to be inflated, the Court shall require deposit of one-third of the probable value of the property.
(2)Where the plaintiff fails to make a deposit under sub-section (1) within the period fixed by the Court, or withdraws the sum so deposited by him, his suit shall be dismissed.
(3)Every sum deposited under sub-section (1) shall be available for the discharge of cost.
(4)The probable value fixed under sub-section (1) shall not affect the final determination of the price payable by the pre-emptor."
6. Language of the above provisions of law is clear in its own words that a pre-emptor his to deposit one-third of the sale price of the property in each within the period fixed by the Court. This time could have been extended by the Court itself to the maximum 30 days of period from the date of filing of the suit. The petitioner neither moved any application for extension of time fixed by the Court nor the trial Court extended this period in exercise of its suo-moto powers, as such, non- compliance/default ; occasioned on part of the petitioner/pre-emptor. Provisions of Section 24(1) of the Act, ibid, are mandatory in nature as consequences of non-compliance have been given in sub-section (2) of the same provision of law which shows that if the amount is not deposited within the time fixed, pre-emptor's suit shall be dismissed. The petitioner argument that by accepting challan form or deposit of amount in question and thereafter order dismissing application of the respondent under Order XVII Rule 3 CPC have the affect of extension of time, are simply misconceived because order allowing deposit, on challan form, produced by the petitioner, is a routine order and the Court normally did not apply its mind for extension of time and such deposit usually, are made at the own risk of the depositor. Besides this, it is settled that whenever some extension is sought, the applicant has to give reasons for extension, in absence of which, on order for extension could not be passed by the trial Court and that too, without applying its conscious judicial mind, alive to the fact that deposit by the petitioner could adversary effect the rights of her adversary which were accrued by them by her own lapse. Similarly, order dated 27.5.2003 passed by the trial Court dismissing application of the respondent under Order XVII Rule 3 CPC does not in clear words extend the time, fixed by it. Order dated 27.5.2003 simply provides on the assumption that deposit by the petitioner had been made within one month, the period fixed by the statute. The case of Dur Muhammad (Supra) though is not relevant to the controversy in hand because sale- deed precedent case preamble of the Limitation Act, 1908, was interpreted by the Hon'ble Supreme Court of Pakistan and it was held that it is the onerous duty of the Courts to construe provisions governing limitation strictly and they should refrain from recording factual findings on the question of limitation loosely yet this judgment has a ratio of decision that provisions of whatever statute governing limitation, have to be strictly construed. Likewise in the case of Jahanzeb Khan (Supra) deposit of one-third of the sale price was ordered on 21.12.1995 and was to be deposited before 13.2.1996 and on failure, an application for extension of time was moved which was allowed by the trial Court and affirmed by the appellate Court but Constitutional petition was accepted by the High Court and orders of both the Courts extending time were set aside. In the instant case, though last date for deposit of one-third was within the statutory period and the time fixed for this purpose, could have been extended by the trial Court but during this period, no application was moved for this purpose and no such order was also passed.
7. The petitioner having not deposited the amount within time fixed by the Court and thereafter did not obtain any order extending the time, was rightly observed by the revisional Court that suit must entail dismissal in terms of Section (2) of Section 24 of the Punjab Pre-emption Act, 1991. In absence of any application for extension of time, no indulgence could have been shown in favour of the petitioner by the trial Court or the revisional Court. 8.Since the order dated 27.5.2003 passed by the trial Court being oblivious of mandatory provisions of law, as discussed above, on the face of it, was tainted with illegalities and irregularities envisaged by 115 CPC, thus, the revisional Court was equipped with powers to right the illegality committed by the trial Court. Once the revisional Court comes to the conclusion that order of the trial Court suffers from legal defects, amenable to its jurisdiction under Section 115 CPC it, under law, can act in the like manner, as the trial Court can act. No doubt scope for interference of revisional Court is narrow but once revisional Court assumes jurisdiction in accordance with law, there is no restriction on its power to pass any order, obviously, according to the settled principles known for administration of justice. My this view gets support from the alighted judgments of. the Hon'ble Supreme Court of Pakistan in the cases Karamat Hussain' and others vs. Muhammad Zaman and others (PLD 1987 Supreme Court 139) and Sadiq Ali vs. Taj Din and others (PLD 1992 Lahore 158), though revisional powers have been exercised in the case in hand as a petition by the respondent whereas those could have been exercised suo-moto whenever any illegality committed by the trial Court comes to its notice. In the case of Chairman, Board of Intermediate & Secondary Education, Balochistan, Quetta and 2 others Versus Maleha Ejaz and another (1995 SCM R 1060), It was observed by the Hon'ble Supreme Court that revisional Court has powers to set right the judicial proceedings, wherever some illegality or irregularity committed by the Courts subordinate to it.
9.For what has been discussed above, it is clear that the petitioner did not comply with the order of deposit dated 6.2.2003 and instead, deposited the amount without getting extension of time for the deposit and thus, the revisional Court has rightly dismissed her suit under Section 24(2) of the Punjab Pre-emption Act, 1991. The judgment/order passed by the revisional Court is within the ambit of its jurisdiction, allocated by the law and does not suffer from any jurisdictional defect, as such, the same cannot be declared, as prayed by the petitioner. This petitioner has no merits in it and is, consequently dismissed, leaving the parties to bear their own costs.