This petition for leave to appeal has been directed against the judgment passed by the High Court on 23-10-2003, whereby the revision petition filed by respondent; Ch. Muhammad Yasin, was accepted and the plaint filed by petitioner and proforma respondent No,2 regarding pre-emption suit was rejected.
2. The necessary facts, precisely stated, which give rise to the present petition for leave to appeal are that respondent No,1, Ch. Muhammad Yasin, purchased land measuring 5 Kanals, 17 Marlas, out of 6 Kanals, 7 Marlas, comprising Survey No,1199, situated in Village Jamalpur Aghar, Tehsil Kotli, for a consideration of Rs,30,00,000. The petitioner and proforma-respondent No,2 herein filed a suit in the Court of Senior Civil Judge, Kotli for possession on the basis of right of prior purchase.
Respondent No,1 filed his written statement. On 21-2-2003 it was ordered by the trial Court that the plaintiffs shall deposit 1/5th of the consideration amount till the next date of hearing otherwise their suit shall be dismissed and the next date was fixed as 21-3-2003. In between 21st February and 21st March, 2003, it was a period of one month for the plaintiffs to deposit 1/5th of consideration amount but on 3-3-2003, the plaintiffs moved an application in the trial Court to the effect that ' instead of depositing 1/5th of consideration amount, they may be allowed to furnish personal surety for the said amount. On this application, the trial Court vide its order, dated 21-3-2003 fixed the case for filing objections by the opposite side and the next date was fixed as 3-4-2003. On 3-4-2003 objections were submitted by the defendant and the next date for hearing was fixed as 23-4-2003.
Thereafter the aforesaid application was finally dismissed by the trial Court on 30-5-2003 but through the same order, the time for deposit of 1/5th of consideration amount was extended upto 6-6-2003. This order of the trial Court, dated 30-5-2003 was assailed by Ch. 'Muhammad Yasin, respondent No,1, through a revision petition before the High Court.
3. A learned Judge in the High Court vide his judgment under challenge dated 23-10-2003 accepted the revision petition filed by Ch. Muhammad Yasin, respondent No,1, and the order passed by the trial Court regarding extension of time was set aside and thus the suit filed by petitioner and proforma-respondent No,2 stood rejected. Hence this petition for leave to appeal by Mst. Zulaikha Khatoon, who was one of the plaintiff/pre-emptors before the trial Court.
4. In support of petition for leave to appeal it was vehemently contended by Raja Muhammad Siddique, the learned counsel for the petitioner, that the trial Court vide its order, dated 21-2-2003 directed the plaintiffs to deposit 1/5th of consideration amount till 21-3-2003 but on 3-3-2003 the plaintiffs duly moved an application for modification of the said order to the effect that instead of depositing 1/5th of consideration amount, they may be allowed to furnish personal surety for the said amount. According to the learned counsel for the petitioner, when this application was considered by the trial Court, then impliedly the period for depositing 1/5th of consideration amount was extended as the next date was fixed for filing objections on the said application by the opposite side. According to the learned counsel for the petitioner although the trial Court vide its order, dated 30-5-2003 dismissed the aforesaid application but through the same order it extended the time for depositing 1/5th of consideration amount upto 6-6-2003. The learned counsel thus, submitted that the order passed by the trial Court on 30-5-2003 was perfectly valid which did not suffer from any illegality or infirmity. The learned counsel in support of his contentions mainly relied upon the case reported as Muhammad Yaqub v. Kala Khan and others 1994 SCR 52.
5. Ch. Jahandad Khan, the learned counsel for respondent No, 1, by controverting the arguments raised by the learned counsel for the petitioner, submitted that on 21-2-2003 it was ordered by the trial Court that the plaintiffs shall deposit 1/5th of consideration amount before the next date of hearing, i.e, 21-3-2003, otherwise their suit shall be dismissed. From 21-2-2003 to 21-3-2003 the plaintiffs did not move any application for extension of time but they moved a baseless application to the effect that instead of depositing 1/5th of consideration amount, they may be ordered to furnish personal surety for the said amount on 30-5-2003 the aforesaid application was finally dismissed by the trial Court, it extended the time for depositing 1/5th of consideration amount till 6- 6-2003. According to the learned counsel when no request was made for the extension of time, then the trial Court had no justification to extend the time for depositing 1/5th of consideration amount suo motu. The learned counsel further maintained that section 21 of the Right of Prior Purchase Act is a mandatory provision of law which has been violated by the trial Court in the instant case.
6. After hearing the respective contentions of the learned counsel for the parties and perusing the relevant record, it may be stated that on 21-2-2003 the trial Court ordered the plaintiff-pre- emptors to deposit 1/5th of consideration amount till the next date of hearing otherwise it was observed that their suit shall be dismissed and the case was fixed for 21-3-2003. During this period, on 3-3-2003 the plaintiffs moved an application for modification of order of the trial Court dated 21-2-2003. It was requested in the said application that instead of depositing I/5th of consideration amount, the plaintiffs may be allowed to furnish personal surety for the said amount. According to the learned counsel for the petitioner the time was still left with the trial Court either to modify the order, dated 21-2-2003 or to reject the application for extension of time but it fixed the date for filing objections on behalf of the other side. Ultimately the application for extension of time was dismissed by the trial Court on 30-5-2003 but through the same order it extended the time for depositing 1/5th of consideration amount upto 6-6-2003. As a matter of fact, in the application moved by the plaintiffs, there was no request whatsoever for extension of time. The request made in the application was to the effect that depositing of 1/5th of consideration amount would burden the plaintiffs and a lot of amount is required to be deposited which will remain blocked due to lengthy procedure for disposal of the cases. Thus, totally a new and inconsistent case was put up by the A plaintiffs before the trial Court. Looking the case from another angle when the case came up before the trial Court on 21-2-2003, the trial Court ordered for depositing 1/5th of consideration amount till 21-3-2003, failing which it was ordered that the suit of plaintiffs shall stand dismissed.
Although the plaintiffs-pre-emptors moved an application before the trial Court well within time for modification of order that instead of asking for depositing the 1/5th of consideration amount, the personal surety for the said amount may be allowed to be taken from the plaintiffs but the Court on presentation of application dated 3-3-2003 asked for objections from the opposite side.
However, on 30-5-2003 the trial Court rejected the application of plaintiffs but at the same time extended the time for depositing 1/5th of consideration amount. When the order was passed by the trial Court on 30-5-2003 for extension of time, the trial Court had become functus officio and had no jurisdiction competence whatsoever to pass an order for the extension of time. On the expiry of the date fixed, i.e, 21-3-2003, the suit filed by plaintiffs stood dismissed automatically as the suit was dependent upon the deposit of 1/5th of consideration amount. The trial Court in these circumstances had no option but to dismiss the application filed by the plaintiffs which was done so vide its order, dated 30-5-2003 but it wrongly extended the time for depositing 1/5th of consideration amount as it had become functus officio and moreover there was no prayer on behalf of plaintiffs for further extension of time supported by some cogent reasons.
7. Both the learned counsel for the parties have placed reliance upon the case reported as Muhammad Yaqub v. Kala Khan and others 1994 SCR 52. The contention of Raja Muhammad Siddique, the learned counsel for the petitioner, is that this authority on all fours has the relevancy to the case of the petitioner as in this case the time once fixed was extended by the trial Court. On the other hand Ch. Jahandad Khan, the learned counsel for respondent No,1, has strenuously criticized the contention of the learned counsel for the petitioner on the ground that the facts of the aforesaid case, and the instant case are totally different and inconsistent and now altogether a different case has been set up by the petitioner. In the aforesaid case although there was an application for modifying the order from depositing 1/5th of consideration amount into granting permission for furnishing personal surety but at the same time there was au elaborate prayer with clarity on behalf of the petitioner therein that the time for depositing 1/5th of consideration amount may be extended for reasons recorded therein. Therefore, the contention of_Ch. Jahandad Khan, the learned counsel for respondent No, l, seems to be correct that the aforesaid case has no bearing on the case in hand as the facts in both these cases were markedly distinct. In order to have proper perception of the principle laid down in the case till Muhammad Yaqub v. Kala Khan and others 1994 SCR 52 the following portion may be reproduced below:-- "In the light of the facts noted earlier we are unable to uphold the view taken by the High Court that there was no application for extension of time because the prayer for extension is duly incorporated in the application moved on 12th of February. We are also unable to accept the contention raised by Raja Muhammad Siddique Khan that the aforesaid prayer for extension was with regard to filing of the security and not for one-fifth of amount. This argument is rather technical and does not advance the ends of justice. We are satisfied that it was a prayer for extension of time."
8. So far as the provisions of section 21 of the Right of Prior Purchase Act are concerned. it has been held time and again that these, provisions arise out of a special statute which ate mandatory in nature-and the same are to be construed strictly . It has been observed in various authorities that the right of pre-emption is a piratical right which deprives lawful owners of their right to purchase certain property on the basis of their right of prior purchase. In these circumstances, the High Court committed no error in accepting the revision petition filed by respondent No,l.
9. The upshot of the above discussion is that finding no merits in this case, the petitioner's counsel has failed to make out any case for grant of leave; the same therefore, stands dismissed. The petitioner and proforma-respondent No,2, who were plaintiffs before the trial Court, in the above stated circumstances have become non-suited. As the main petition has been dismissed the application for issuance of stay order also stands dismissed.