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Second Appeal No. 73 of 1953, decided on 25th June 1954, from the order of Fazl-i-Ilahi, Additional District Judge, Jhang, dated the 24th December 1952, affirming that of D. Fazal-ud-Din Senior Civil Judge, Jhang, dated the 17th October 1952.

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S. 22-Treasury closed on last day allowed for deposit, though Court was not closed-Deposit may be allowed to be made on the next day treasury or bank opens-Before rejecting plaint for omission to deposit Court should ask plaintiff to show cause for his omission -Punjab General Clauses Act (1 of 1898), S. 8.

The last day for deposit, under section 22, Punjab Pre -emption Act, of a sum equal to 1/5^th of the probable value of the property empted was the 16th of October 1952, which day was declared a holiday by the Punjab Government, but the Civil Courts were supposed to be open as the day was not declared a holiday by the High Court. Plaintiff's failure to deposit the sum by the 16th October 1952, resulted in the plaint being rejected on the 17th October 1952. An appeal before the District judge against the rejection was also dismissed.

Held, that as the sum ordered to be deposited was to be paid into the Government Treasury (vide para. No. 54, Ch. 8-E, Vol. II, Lahore High Court Rules and Orders) and the Treasury was closed on the last day of the period allowed for deposit, although the Civil Courts were open. Plaintiff could not have deposited the amount on the 16th of October, and, according to section 8 of the Punjab General Clauses Act (I of 1898), plaintiff had a right to deposit the amount on the 17th and the plaint could not have been rejected at 9-15 a.m. on the 17th, as the plaintiff could avail of the whole of the 17th of October for deposit of money.

Also, that before rejecting the plaint, Court should have allowed the plaintiff opportunity to show cause against such rejection.

Mehr Muhammad Din v. Pandit Anant Ram and others A I R 1939 Lah. 25 ref.

Syed Ghulam Abbas Jafri for Appellant.

Muhammad Ashraf for Respondents.

---This second appeal arises out of a suit for pre-emption. Umar Hayat appellant instituted this suit on the 26th of August 1952. 17th of October, 1952 was fixed as the date of hearing and the plaintiff was directed to deposit one-fifth of the purchase money, which amounted to Rs. 130 before that date. On that date the learned Senior Civil judge found that one-fifth of the sale price had not been deposited and he rejected the plaint in accordance with section 22 of the Punjab Pre-emption Act. The plaintiff appealed to the District judge against this order. The grounds he took in the appeal were that he originally intended to deposit the required one-fifth on the 16th of October 1952, that the 16th of October had been declared a holiday and, therefore, he decided to deposit the required one-fifth on the 17^th of October but that the case was taken up on that date at 9-15 a.m. and, therefore, he had no opportunity to deposit the money. It was urged before the learned Dis trict Judge that the plaint had been rejected without calling upon the plaintiff to explain why he had not deposited the money. On behalf of the defendants it was stated before the learned District Judge that the 16th of October, although it had been declared a holiday by the Punjab Government, had not been observed as a holiday by the Civil Courts on account of an order of the High Court. To this the appel lant rejoined that although the orders of the High Court were that the 16th of October was not to be observed as holiday, the learned Senior Civil Judge had in fact not attended Court on that date. The learned District Judge did not feel the necessity of going into the question whether in fact the Senior Civil Judge had attended the Court on that date or not. He was of the opinion that the appellant having failed to make the deposit within the time allowed extension of time was a matter of exercise of discretion by the learned trial judge and that as no request had at all been made to him to extend time the order was, in the circumstances, quite proper.

In support of the allegation that in fact the learned Senior Civil judge had observed the 16th of October as a holiday, a certified copy of the order of the learned Senior Civil judge dated the 15^th of October 1952 has been produced before me. This order by the learned Senior Civil judge has been passed as a Deputy Custodian and by this order he has adjourned a case which was fixed for the 16th of October on the ground that it had been declared as a holiday. It may be mentioned that the plaintiff was a party to the case before the Deputy Custodian also.

I am of opinion that on two grounds the order of the learned Senior Civil judge is improper. The first is that as the 16th of October had been declared a holiday by the Punjab Government the plaintiff would, on account of section 8 of the Punjab General Clauses Act, be entitled to deposit the amount on the 17th of October. It is to be observed that this amount of Rs. 130 was to be deposited in the' Government Treasury as will appear from paragraph No 54. Chapter 8-E, Volume II of the Lahore High Court Rules and Orders. In fact it is conceded before me by learned counsel for the respondents that the deposit has to be made either in the State Hank of Pakistan or in the treasury, Even in order to deposit the amount in the State Bank of Pakistan, orders of the Treasury Officer are required. Although the 16th of October 1952 was not a holiday s4 far as the Civil Courts were concerned, it had been declared a holiday by the Punjab Government and the treasury office was on that date closed. It is clear, therefore, that the plaintiff could not have deposited the amount on the 16th of October, Section 8 of the Punjab General Clauses Act provides that if by any Punjab Act any act or proceeding is allowed to be done in any office within a certain period and the office is closed on the last date of the period, the act can be done on the next opening day of the office. In this view of the matter, the plaintiff had a right to deposit the amount on the 17^th of October 1952, and the plaint could not have been rejected at 9-15 a.m. as the whole of the 17th of October was available Jo the plaintiff for deposit of money.

The second reason why the order is unjustified is that the learned Senior Civil judge did not apply his mind to the question whether time should or should not be extended. The learned District Judge has observed that no request was made to the learned Senior Civil judge for extension of time. Learned counsel for the appellant explained, and in fact an affidavit to this effect was filed before the learned District judge, that the learned Senior Civil Judge did not inquire from him as to why he had not deposited the required amount. I am of the opinion that before the learned Senior Civil judge passed the order, he should have called upon the plaintiff to show cause why he should not bass that order. Every person against whom an order is to be passed should have an opportunity to show cause against the passing of the order. Had the learned Senior Civil judge enquired from the plaintiff in this case as to why the deposit had not been made, the plaintiff would have asked for extension o time and would have given the explanation of his omission to deposit the amount as he has given before the learned District Judge. The order of the learned Senior Civil judge does not show that he considered the question whether it was a proper case for extension of time or not. It appear to be an order which automatically followed the failure to deposit the amount. As was pointed out in Mehr Muhammad Din v. Pandit Anant Ram and others (A I R 1939 Lab. 25) it is proper that when the Court is going to pass an order under section 22 of the Pre-emption Act, it should consider whether time for l deposit should or should not be extended.

This appeal is accepted and the order rejecting the plaint is set aside. The case will go back to the learned Senior Civil judge for trial according to law. Costs of this appeal and costs of the appeal before the learned District judge will be costs in the cause.

A. H. Appeal accepted.

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