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‑‑‑ S. 22‑‑‑Pre‑emption ‑ Zar‑e‑1'anjum, delay in depositing of Respondents or: a bona fide mistake failing to deposit Zar‑e‑Panjum on date fixed by trial Court but otherwise making efforts to deposit money within time‑Trial Court extending time by one day but when respondent reaching treasury its working hours were over and next day being Sunday respondent depositing money there after‑‑Trial Court coming to conclusion that late deposit was not deliberate but due to unavoidable circumstances and accepting tender ‑‑ View taken by trial Court, held, perfectly justified.

Sh. Atta U1lah .Qureshi for. Petitioners.

Tariq ,Shameem for Respondents.

Dates of hearing : 9th and 10th December, 1979,

Sher Muhammad, respondent No. 2 and his sister Mst. Begum sold land measuring 17 Kanals and 11 Marlas situate in village Udian, Tehsil Bhalwal, District Sargodha in favour of Muhammad Inayat vide. mutation No. 37, dated 28th November, 1972 for a total consideration of Rs. 4,600. On 27th November, 1973 the sale was pre‑empted by Liaqat Hayat respondent No. I claiming. himself to be the nephew of Sher Muhammad respondent No. 2. On 29th November, 197.3 Civil Judge, Bhalwal who had taken cognizance of the suit ordered the issuance of summons to the opposite party for 22nd December, 1973 and ,also directed that 1/5th of the total sale price amounting to Rs, 920 be deposited before 22nd December, 1973,, . 'Else plaintiff made au application on 22nd December, 1973 in which be regretted the payment of Zar‑e‑Punjam before 22nd December, 1973 on the assumption, that the amount could be deposited even on 22nd December, 1973. The Court finding the explanation to be plausible directed that the amount be deposited today. According to the respondent he bail got the challans signed by the Court on the same day but by the time he reached the treasury the' working hours were over and 23rd December, 19 7'3 being Sunday, the amount was deposited on the next working day that is, 24th December. 1973. 'the petitioner on 8th January, 1974 made an application to the effect that since the amount o:' Zar‑e‑Punjam had not been deposited before 22nd December, 1973 as per the directions of the Court dated 22nd December, 1973 on the same day, therefore, the plaint vas liable to foe rejected under subsection (4) of section 22 of the Punjab Pre‑emption Act. This contention of the petitioner found favour with the learned trial Court and the plaint was ordered to be rejected on 24th January, 1974 on the ground that the directions of the Court had not bean complied with. The respondent filed an appeal against the aforesaid order of rejection of the plaint which was accepted by the learned District Judge, Sargodha vide leis order dated 1180th September, 1974. It was observed keeping in view the observations of this Court in Umar Hayat v. Aziz Ullah Khan (P L D 1956 Lah. 297), that the respondent was entitled to a notice before else plaint could be rejected. It was, therefore, directed that the trial Court should dispose of the applications afresh in accordance. with law. The parties were directed to appear before the learned trial Court on 30th September, 1974. On remand again the learned Civil judge, vide his order‑ dated 15th July, 1975 dismissed the applications filed by the petitioners for the rejection of the plaint on the ground that the amount hail been deposited on 24th December, 1973 on account of unavoidable circumstances and that the. explanation furnished by the respondents was perfectly justified it the circumstances of the case. The present revision is directed against the order of the learned District Judge, Sargodba dated 18th September, 1974 remanding the case on appeal and the orders passed by the learned Civil Judge on 15u: July, Y 1973 refusing to reject the plaint have been challenged.

2. The leaned counsel, for the petitioners has argued that no application for the extension of the time having been made for deposit of the amount on 24th December, 1973 therefore, the tine could not be extended and the plaint was liable to be rejected. This contention is based on the fact that the earlier order eras for the deposit of the Zar‑e‑Punjam before 22nd December, 1973 and even if the same is to considered .the amount was to be deposited on the same day and riot on 24th December, 1973. Elaborating his contention the learned counsel said that the petitioners could have tendered the money to the Civil Judge in case the treasury had closed by the time and the treasury challlans had been signed by the court.

3 None of the contentions raised lay the learned‑ counsel for the petitioners have any legal force. Respondents sin a bone fide mistake that the Zar‑e‑Punjsru could be deposited upto 22nd December, 1973 made an application for extension of time to the Court. Tae Court passed an order era the same elect to deposit the Z.ar‑e‑Punjam but failed to do so for reasons beyond their control. The next day being Sunda the amount was deposited on 24th December. 1973. The learned trial Court was perfectly justified in coming to the conclusion that the orders passed by the Court had not been deliberately violated and due to unavoidable circumstances the amount could not be deposited on 22nd December. 1973. The learned counsel for the petitioners has relied on Abdul Wahid, etc. v. Ibrahim, etc. (PLD1966(W.P.)BJ8). In this case it was observed that the right of pre‑emption was predatory in nature and constitutes drawback on freedom of contract, therefore, the provisions of subsection (4) of section 22 should be construed and complied strictly against the preemptor. In this case the suit was instituted on 23rd February, 1965, and on 24th February 1965, the Senior Civil Judge. Rahimyar Khan made an order that summons be issued to the defendants for the 30th March, 1965 and 1/5th of the pre emption money should be deposited before the date fixed. On 30th March, 1965 an application was presented before him by the pleader praying that the time be extended for one day for the reason that although the plaintiffs had deposited the amount in question with him yet he could not deposit the same in Court due to a mis‑understanding on his part to the effect that the money could be deposited on the 30th March, 1965. In the first paragraph of his application the pleader had clearly stated that the money was to be deposited before the date fixed, i.e. before the 30th of March, 1965. The learned trial Judge rejected this application on the same day holding that no satisfactory ground bad been shown for the extension of time, and having rejected this application he then proceeded to reject the plaint as well under section 22(4) of the Punjab Pre‑emption Act. In appeal before the High Court it was con tended that the delay which accrued on the part of the counsel was due to a bona .fide mistake regarding the correct import of the order passed by the learned trial Court on 24th February, 1965. By dis missing the appeal it was held by a Division Bench hearing the appeal that the mere inexperience of the counsel was no execute for not complying with the order and having the time extended. In this case it was observed as follows :‑ .

"(3) We consider that it is not necessary to refer at any length to the case 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 pro visions of the Pre‑emption Act have to be constrained and applied strictly against pre‑emptors."

Won examining the facts of that case the Court on coming to the conclusion on the facts of that case that it was a case of negligence to comply with the order of the Court and ap such the Court was justified to invoke the penalty in subsection (4) of section 22 of the Punjab Pre emption Act. From the narration of the facts of that case it would be evident that the observation of their Lordships was with reference to the peculiar facts of that case. It would be pertinent to point out that the order dated 22nd December, 1973 has not been challenged. The only grievance shown is that the amount ought to have deposited on 22nd December, 1973 which on account of the unavoidable circumstances could not be extended. In a later judgment Muhammad Zaman Khan v. Ditta, etc. (P L D 1967 Lab. 1068), the object of section 22 of the Punjab Pre‑emption Act, 1913 was examined and it was held that the object of an order under clause (1) of section 22 was to guarantee vendees against frivolous proceed ings on the part of the possible pre‑emptor and that the deposit was a token of good faith. It was further observed that the Court could extend the time of deposit, but it was not to act mechanically, and has to objec tively consider the circumstances which led to the delay. In this case it was observed that the counsel was negligent and the reason put forth for the condonation of delay did not exist. The facts stated in the application for condonation of delay were not accepted. This judgment is also not applicable to the facts of the present case which are distinguish able. Here there was no negligence on the part of the respondent. The facts of the present case are rather covered by the observation of their Lordships in ‑Abdul Aziz v. Aziz‑ul‑Flaq (1972 S C, M R 296). Under similar circumstances the amount could not be deposited by the extended date in spite of the best efforts of the plaintiff. The explanation was that on the day the amount was to be deposited he had gone to the Bank at I1 a.m. and the Bank had closed by 10 a.m. It was observed as under :

After hearing the learned counsel for the petition we are satisfied that the respondent had made a valid tender to the Court by getting the challan passed and by making an effort to make the deposit within time. The learned Single Judge was perfectly justified in observing that this was sufficient compliance of the order dated the 23rd May, 1968 and no question of any extension arose. In our opinion, the respondent has not committed any default. The petition is dismissed."

4. In the light of the above discussion this revision has no force and is hereby dismissed with no order as to costs.

M.Y.H. Revision dismissed.

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