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(a) Punjab Pre-emption Act (1 of 1913)-

S. 22 (4)-Delay in deposit of money-Parties in case of being ordered to deposit money by a specified date usually confused by word 'before' and take it as 'up to'-Plaintiff coming forward with such plea and other party not rebutting it-Delay of one day, held, must be condoned.

(b) Punjab Pre-emption Act (I of 1913)-

S. I-Nature of right of pre-emption-Predatory being a draw back on freedom of contract of sale-Provisions of Pre-emption Act-To be strictly construed against pre-emptors-Pre-emptor, however, not guilty of gross negligence or any other fault in complying with order of Court, mere fact of nature of right of pre-emption being predatory, held, not sufficient to refuse relief to him.

Abdul Wahid etc. v. Ibrahim etc. P L D 1966 B J 8 distinguished.

(c) Civil Procedure Code (V of 1908) -

S. 100-Sufficiency of grounds of delay in deposit of money-- Question of fact--Hence, held, cannot be challenged in second appeal.-[Question of fact---Second appeal].

Shahid Hussain Kadri for Appellants.

Nemo for Respondents. Date of hearing 4th February, 1977.

This second appeal is directed against the judgment dated 30-4-1976 of the learned District Judge, Lyallpur, who accepted the appeal arising from the order of rejection of plaint under section 22 (4) of the Pre-emption Act recorded by the Civil Judge 1^st Class, Lyallpur, dated 23-12-1975.

2. The facts are that on 3-5-1975 the learned trial Judge directed the respondents to deposit 1 /5th of the pre-emption money amounting to Rs. 17,000 before 16-7-1975. The date of 16.7-1975 was for the attendance of the appellant/defendants. It was learnt on 16-7-1975 that 1/5th of the pre emption money which was to be deposited upto 15-7-1975 has not been deposited but the respondents arranged to deposit the money on the said date i. e. 16-7-1975 and an application was made for the extension of time, notice of which was given to the appellants for 29-7-1975 and ultimately the petition was rejected and with it the plaint was also rejected under Order VII, rule 11.

3. The case of the respondents was that they had misunderstood the date and were under the impression that 1/5 of the pre emption money was to be deposited upto 16-7-1975. In support of the application for condonation of delay one of the respondents, namely, Ghulam Sabir appeared as P. W. 1. The learned District Judge accepted the statement of one of the respondents which had not been controverted by the appellant. Usually the parties are confused by the word 'before' and take it as up to' and in cases where the plaintiff comes forward with this plea and when it has not been shown by the other party that the plaintiff was not under any such misunderstanding, the delay of one day must be condoned. This is a question of fact whether actually the respondents had misunderstood the date and since one of the respondents appeared and stated so on oath, the learned District Judge was justified in believed the said witness particularly when it had not been rebutted by the appellant. Learned counsel for the appellants has cited Abdul Wahid etc. v. Ibrahim etc. (P L D 1966 B J 8 ) in which it has been observed :-

"We consider that it is not necessary to refer at any length to the cases cited by the learned counsel for the reason that the law is clear, namely, that a discretion does vest in the Court to extend time if sufficient cause is shown, and that if the amount is not deposited within the time originally fixed or within the time so extended, the plaint shall be rejected in terms of subsection (4) of section 22 of the Pre-emption Act. The answer to the question whether in a particular case the time should or should not be extended would obviously depend on the peculiar circumstances of the case, keeping in view, of course, the consideration that the right of pre-emption is predatory in its nature and constitutes a drawback on the freedom of contract and for this reason the provisions of the Pre-emption Act had to be construed and applied strictly against pre-emptors."

4. This is true that as held in the authority cited by the learned counsel the right of pre-emption is predatory in its nature and a drawback on the freedom of contract of sale and so the provisions of Preemption Act should be construed strictly against the pre-emptors in cases but where the pre emptor has succeeded in showing that he was not guilty of gross negligence or any other fault in complying with the order of the Court, e the mere fact that right of preemption is predatory in nature will not be sufficient to refuse the relief to him. In the present case since the learned District Judge was satisfied that the respondent had mis-understood the import of the order and thought that the one fifth of the pre-emption money was to be deposited up to 16-7-1975 and not before, therefore, he was justified in extending the time particularly when on 16-7-1975 the money had been deposited. The authority therefore, is distinguishable from the facts of the present case.

5. The point whether there was sufficient ground for condonation of delay being a question of fact cannot be challenged in second appeal. This is true that finding is not concurrent but I do not find any perversity C in the finding of the learned District Judge for which interference may be, considered necessary.

6. As a result of the observations made above, I do not find any force in the appeal and dismiss it. As the appeal has not been contested, I leave the parties to bear their own costs of the appeal. Present none.

K. M. A, Appeal dismissed.

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