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.‑‑ S. 22 (4)‑Deposit of Zar‑i‑Panjum Court's discretion to extend time‑Pre‑emptor (plaintiff) in pre‑emption suit not complying with direction given on 17th March, 1980 to furnish security within one month‑Trial Court on 17th May, 1980 allowing plaintiff on application to deposit 1/5th sale price m Court‑Trial Court while passing order on 17th May, 1980 relying upon "Diary" and "Lafafa" of plaintiff's counsel produced in support of misunder standing of date for furnishing security ,without affording vendees (defendants) opportunity to rebut same‑‑Held, trial Court has not exercised its discretion judiciously to extend time for deposit of 1/5th‑‑'Trial court can alter its nature but discretion has to be exercised judiciously and cautiously.

Malik Muhammad Shafi for Petitioners.

Iqbal Ahmad Malik for Respondent.

Date of hearing : 16th November, 1982. ,

This First Appeal from Order which I am inclined to treat as revision petition, arises from the order dated' 17th .May, 1980, passed by Civil Judge, Lodhran, whereby, in the suit for .possession through pre emption titled Rana Waris All Khan v. Fazal Ahmad and others, the plaintiff was allowed to deposit 1/5th, i.e. Rs. 23,000 in the Court.

2, The facts giving rise to this revision in brief are that on 12^th March, 1980 Rana Waris Ali Khan respondent herein filed a suit for possession through pre‑emption against Fazal Ahmad and others. Along with the suit he moved application for permission to furnish security instead of cash deposit of 1/5th of the sale price. This ‑application was, allowed on 17th March, 1980 and the plaintiff‑respondent was directed to furnish security valuing .Rs. 50,000 within one month. This direction was, however, not complied with. On 17th May, 1980 which was the next date of hearing, the respondent moved another application requesting the trial Court either to accept the security bond or to allow him to deposit Rs. 23,000 as 1/5th on that date. The trial Court on the same day, after hearing the learned counsel for the parties, allowed him to deposit 1/5t in the Court and the amount was accordingly, deposited forthwith. Hence this petition.

3. Learned counsel for the petitioners has contended that permission to deposit 1 /5th in cash, on 17th May, 1980 was given without legal justification, inasmuch as sufficient opportunity was not given to the petitioner/defendants to rebut the proof adduced by the plaintiff/ respondent for the non‑compliance of the direction given on 17th March, 1980. Furthermore, the plaintiff had failed to show sufficient cause for the non‑compliance of the direction given under section 22 of the Punjab Pre‑emption Act, on 17th March, 1980. As against this, the learned counsel for the respondent/plaintiff has vehemently defended the impugned order on the ground that the trial Court was quite competent to extend the time and alter his previous order of furnishing security into cash deposit of 1/5th.

4. 1 have considered the arguments advanced by the learned counsel for the parties. There is no denying that under section 22(4) of the Punjab Pre‑emption Act, the trial Court had a discretion to extend the time for the deposit of 1/5th and the trial Court could alter its nature, but at the same time this discretion has to be exercised judiciously and cautiously especially when on account of the non‑compliance of the order dated 17th March, 1980 a valuable right of the rejection of the plaint of the pre‑emptor/respondent had accrued. It appears that the trial Court while passing the impugned order has relied upon the "Diary" and "Lafafa" of the counsel, produced by the plaintiff/ respondent in support of his plea of misunderstanding of the date for furnishing security, without affording the defendant/petitioners an opportunity to rebut the same. The reasons given by the trial Court are flimsy. To my mind, the trial Court has not exercised its discretion judiciously. .

5. For what has been stated above the impugned order is set aside. The matter is remanded back to the trial Court to reconsider the applica tion dated 1st July, 1980 and decide the same after giving the parties opportunity to adduce the evidence in support and in rebuttal of that application. The parties are, however, left to bear their own costs.

K.M.A. Case remanded.

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