' Brief facts of the case are that the property in dispute was purchased by the petitioners through a registered sale-deed dated 24-8-1999. The respondent filed a suit of pre-emption on 30-9-1999 against the said sale. On 30-9-1999, the learned trial Court registered the suit and directed its fixation on 1-10-1999. On 1-10-1999, the learned trial Court directed the respondent/plaintiff to deposit a sum of Rs,25,000 as Zar-e-Soem within 30 days. The respondent deposited the said amount on 1-11-1999. On 15-11-1999, the petitioners moved an application before the learned trial Court with a prayer for the dismissal of the suit on the ground that the respondent had not deposited Zar-e-Soem in accordance with the orders of the Court and the law. This application was contested by the respondents, however, the same was dismissed vide order dated 4-5-2000.
Petitioners challenged the said order through a revision, which was also dismissed vide order dated 24-7-2000. Both these orders are being assailed through the instant writ petition.
2. The respondent was personally served for 8-4-2003. Nobody entered appearance on his behalf, therefore, on the said date of hearing, he was proceeded against ex parte.
3. Learned counsel for the petitioners contends that under section 24 of the Punjab Pre-emption Act, 1991 deposit could only be made within 30 days of institution of the suit. In the instant case, the suit was instituted on 30-9-1999, while, deposit was made on 1-11-1999, therefore, it is concluded that the deposit was made beyond the prescribed statutory limitation of 30 days. Therefore, under subsection (2) of section 24 of the Punjab Pre-emption Act, 1991, the suit was liable to be dismissed.
In support of his arguments, he relies on 1992 SCMR 746, PLD 1993 SC 204 and PLD 1997 Lah.
549.
4. I have considered the arguments of the learned counsel for the petitioners.
5. The case-law cited by the learned counsel for the petitioners is not applicable to the facts and circumstances of the instant case. In 1992 SCMR 746, on the date of institution of suit, the plaintiff was directed to make payment of Zar-e-Soem within 30 days. This order was complied with by the plaintiff. However, after about six months, the defendants moved an application that the price of the property was much more than what was indicated by the plaintiff. On this, the learned trial Court demanded further deposit from the plaintiff after the prescribed period of 30 days. This demand was not approved by the Honourable Supreme Court.
6. In PLD 1997 Lah. 549, the suit was filed on 5-9-1992, and on the same date, the learned trial Court ordered the deposit of Zar-e-Some till 29-9-1992. On 29-9-1992, plaintiff moved an application and the time was extended up to 4-10-1992. This short extension was challenged by the plaintiff, which was not interfered by this Court and further extension was not granted.
7. In PLD 1993 SC 204, the suit was filed on 30-7-1987, while the learned trial Court ordered the deposit of Zar-e-Soem on 2-9-1987 till 15-10-1987, However, on 12-10-1987 and 11-11-1987, the plaintiff sought extension in time, which was granted till 21-11-1987. This extension was not approved by the Honourable Supreme Court.
8. To the facts and circumstances of the instant case, the relevant case-law is the Full Bench judgment of this Court reported as NLR 2000 Civil 410. In this case, the suit was filed on 14-5-1995.
The learned trial Court on 15-5-1995, ordered the deposit of Zar-e-Soem within 30 days from the date of order. On an application made by the plaintiff on 11-6-1995, it was permitted to purchase Defence Saving Certificates in the name of the Court, which was complied with and the certificates were deposited on 14-6-1995. Apart from others, one objection of the defendant was that the order of the trial Court and the deposit of the plaintiff overrun the statutory period of 30 days, therefore, the suit was liable to be dismissed. A learned Division Bench of this Court after hearing the arguments apart from others, framed a question and referred the matter for the constitution of the Full Bench. The question is as follows:-- "What is the legal value of the order of the trial Court dated 15-5-1995 whereby the plaintiff was directed to deposit 1/3rd of the sale price within 30 days from the date of the order whereas the statute provides for maximum period of 30 days from the date of institution of the suit."
' The matter was examined by the Honourable Full Bench of this Court and observed as follows:-- "It is clear from the main subsection that the plaintiff was to deposit 1/3rd of the sale price in compliance with the order of the Court. It excludes the possibility of the deposit of amount by the plaintiff of his own. The provision is harsh, therefore, it has to be interpreted strictly. The first proviso empowered the Court to grant extension in the time for deposit of 1/3rd but at the same time curtailed its powers by prescribing the total period of 30 days from the date of institution of the suit.
' It, therefore, followed that the trial Court could extend time if in the first order the time allowed to the plaintiff for deposit of 1/3rd of the sale price was less than 30 days from the date of the suit and not otherwise because that would militate against the proviso and the same will become a dead letter. Redundancy cannot be attributed to the Legislature. Now the question was whether violation of the two provisions could in the circumstances of the case, entail penal consequence of the dismissal of the suit by invoking subsection (2) of section 24 of Act, which read as under;---
(2) Where the plaintiff fails to make a deposit under subsection (1) within the period fixed by, the Court, or withdraws the sum so deposited by him, his suit shall be dismissed'. (emphasis supplied)
In our considered view the reply is in negative for the following reasons:--
(i) If the time fixed by the Court overruns the period prescribed by the Statute, it will not entail dismissal of the suit under section 24(2) of the Act. It was never the intention of the Legislature. If the matter is taken to its logical end then such an order would not be sustainable in an appeal or revision and fresh order will have to be passed strictly in accordance with the Statute;
(ii) The plaintiff could only make the deposit of 1/3rd of the sale price under the orders of the Court and not of his own;
(iii) The penalty of dismissal of the suit follows when the plaintiff failed to make deposit within the period fixed by the Court as was clear from subsection (2) of section 24 of the Act." (underlining is mine).
It is evident from the above-quoted judgment that under section 24 of the Punjab Pre-emption Act, 1991, the plaintiff of his own cannot make the deposit. It is the duty of the Court to pass an order under section 24(1) of the Pre-emption Act, 1991 before any responsibility could be fixed on the plaintiff. Under section 24(1) the Court is required to pass an order under this provision or law on the day when the suit is filed by a plaintiff. If no such order is passed on the very first day of the institution of the suit, this is a lapse on the part of the Court and a contribution towards noncompliance of statutory provision of law. Subsection (1) of section 24 makes it obligatory on the Court to pass an order and fix a time for the deposit of 1/3rd sale price. Its first proviso, however, restricts its powers up to 30 days from the date of filing of suit.
9. Subsection (2) of section 24 is the penal provision for non- compliance of subsection (1). The same is reproduced as follows':-- "Where the plaintiff fails to make a deposit under subsection (1) within the period fixed by the Court, or withdraws the sum so deposited by him, his suit shall be dismissed."
' In this subsection the phrase "within the period fixed by the Court" is of much importance. The power to fix time is of the Court, the plaintiff has no authority to make a deposit of his own without the order of the Court. Therefore, if in terms of the order of the Court a deposit is made by the plaintiff within the time fixed by the Court, he cannot be non-suited. Primarily, it is the duty of the Court to go by the provisions of the law but if a litigant is misled by a wrong order on the basis of miscalculation of the time by the Court, then, of course, he cannot be penalized for a contributory lapse on the part of the Court.
10. In the instant case, the suit was filed on 30-9-1999. The trial Court was required under subsection (1) of section 24 to pass an order on the same date when the plaint is presented. But no such order was passed on 30-9-1999. It was on 1-10-1999, when the plaintiff was called upon to make a deposit of Rs,25,000 within 30 days.
11. 30-9-1999 cannot be counted as no order was passed by the Court on the said date. The day when the order was passed ice, 1-10-1999, has also to be excluded under section 8 of the West Pakistan General Clauses Act, 1956. The rational behind this provision of law appears to be that the day when the order is passed should not be counted, because, it is possible that the order is passed at the tail-end of the day and the litigant is not in a position to avail that day in compliance with the order, therefore, through this provision, a benefit is given to a litigant which is his right.
12. If in the above circumstances, 1-10-1999 is excluded, then the 30th day comes to be 31-10-1999.
31-10-1999 was a public holiday being Sunday; therefore, the deposit was made by the plaintiff on 1-11-1999. This delay of one day is protected under section 9 of the West Pakistan General Clauses Act, 1956.
13. The upshot of the above discussion is that the deposit made by the respondent on 1-11-1999 cannot entail the dismissal of his suit under section 24(2) of the Punjab Pre-emption Act, 1991.
14. For what has been stated above, I find no merit in this writ petition, and the same is accordingly dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.