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Civil Revision No. 419 of 1979, decided on 11th June, 1983.

‑‑ S. 23‑Civil Procedure Code (V of 1908), S. 148‑Pre‑emption suit‑Insufficient security‑Trial Court can exercise powers of re quiring a pre‑emptor to deposit pre‑emption money or to give a security or to grant further time for this purpose at any time before settlement of issues and not afterwards.

‑‑ S. 23‑Pre‑emption suit‑Insufficient security‑Failure in com pliance on part of pre‑emptor, held, shall cause corresponding accrual of right in favour of vendee to non‑suit pre‑emptor.

‑‑ S. 23‑Pre‑emption suit‑‑Insufficient security‑‑Pre‑emptor may apply for extension of time and if he files application before expiry of period of deposit originally fixed Court may extend time on his application without notice to vendee ; but on his making application for extension on expiry of period of deposit vendee, held, shall have right to be heard before orders of extension to deposit or furnish security are made.

‑‑ S. 23‑Pre‑emption suit ‑‑ Insufficient security ‑ Pre‑emptor already paying cash and security within time fixed by Court and on having learnt discrepancy in security applying for extension of time to deposit same before settlement of issues ‑Trial Court by refusing to extend time to put additional security bond, held, has acted in exercising jurisdiction illegally and with material irregu larity‑Judgment and decree of Courts below set aside.

P L D 1967 Pesh. 319 ; P L D 1974 S C 322 and A I R 1938 Lah. 606 ref.

Muhammad Nazirullah Khan for Petitioner.

Respondent (absent).

Date of hearing : 8th June, 1983.

Civil Revision No. 412 of 1979 is directed against the judgments and decrees of the Courts below which had non‑suited the pre‑emptor peti tioner on account of short security deposit of the pre‑emption money by a sum of Rs. 5,000.

2. Briefly stated, the facts are that a land sold by oral mutation ostensibly for Rs. 45,000 was pre‑empted by the petitioner alleging‑the actual sale price in the sum of Rs. 20,000 only. Petitioner was,' directed to deposit the pre‑emption money in the sum of Rs. 30,000 before 16th November, 1977. He applied for permission of the deposit of pre emption money in the sum of Rs. 10,000 cash and Rs. 20,000 as security. The Court acqepte4 his application as su0h. The petitioner deposited a sum of Rs. 10,000 in cash and filed a security bond of Rs. 15,000 in stead of Rs. 20,000 on 12th November, 1977 within the fixed period. Some time on 7th March, 1978, learned counsel for the vendee respondent had pointed out the non‑compliance of the orders of the Court. The case was adjourned for arguments on the point. Meanwhile the pre‑emptor petitioner also filed an application for deposit of the additional security in the sum of Rs. 5,0(10. He stated that just by inadvertence the security deposit was put in for Rs. 15,000 instead of Rs. 20,000 and that he was prepared to deposit additional security for the deficient sum. The trial Court found the pre‑emptor‑petitioner a defaulter in the compliance of the orders of the Court and after reference to certain authorities without discussion, he proceeded to dismiss the pre‑emptor‑petitioner's suit under section 23 of the N.‑W.F.P. Pre‑emption Act, 1950 (hereinafter referred to as Act'). His appeal before the District Judge was also dismissed under the observation that since the provisions of clause (4) of section 23 of the Act were mandatory and could not possibly be relaxed in favour of the pre‑emptor particularly when there was not filed an application for extension of time soon after 16th November, 1977.

3. Now under subsection (1) of section 23 of the Act, the trial Court is to require the pre‑emptor to deposit the pre‑emption money in cash or to give security of sum of at any time before the settlement of issues. He can extend and enlarge the period from time to time by virtue of powers under subsection (1) read with subsection (4) of section 23 o the Act, further read with section 1 48, C. P. C. No time limit has been prescribed under the Code of Civil Procedure for the exercise of powers, rather the section empowers the Court to extend the time even after the expiry of the period originally fixed. Anyhow, unlike the appellate Court, which can exercise the powers conferred on a Court under subsection (1) of section 23 of the Act at any time, the trial Court can exercise the powers of requiring a pre‑emptor to deposit a pre‑emption money or to give a security or to grant further time for the purpose at any time but before the settlement of issues. Subsection (4) of section 23 of the Act and section 148 of the Code of Civil Procedure shall have the application, in case of the trial Court, subject to the restraint imposed by subsection (1) to exercise the powers of extension before the settlement of issues and not afterwards. In support of the view a reference is made to 52 P R 1891, holding that the latest stage, at which the order requiring deposit o security of pre‑emption money can be passed by the trial Court, is t6 time when the issues are settled but not afterwards. I am also conscious of the provisions contained in subsection (5) (b) when a Court order the pre‑emptor to furnish fresh security within a time fixed by the Court at any stage if the security already furnished becomes void or insufficient for any cause. Anyhow, the clause shall not have the application i there has already been filed an insufficient security as in the instant case. Besides the clause entails a different penalty of dismissal of suit in case o non‑compliance than the penalty of a rejection of a plaint prescribe under subsection (4) of section 23 of the Act.

4. In case the order of cash deposit or security made under sub section (1) of section 23 of the Act is not complied with, the con sequences contained in the mandatory provision of sub section (4), that the plaint shall be‑rejected, shall be visited upon the pre‑emptor.

Further, failure in compliance on the part of the pre‑emptor shall also cause a corresponding accrual of a right in favour of the vendee to non] suit the pre‑emptor. A pre‑emptor may, however, apply for the exten sion of time and if he files an application before the expiry of the period of deposit originally fixed, the Court may extend the time on his appli cation without a notice to the vendee but if he makes the application for extension on the expiry of the period of deposit, the vendee shall have a right to be heard before orders of extension to deposit or furnish security are made.

5. Herein the trial Court, without discussion of the facts of the cases, referred to certain authorities on the basis of which he non‑suited the pre emptor‑petitioner. I shall pick up the authorities one by one as referred to by the trial Court in his support. In P L D 1967 Pesh. 319, subsequently also upheld by Supreme Court reported in P L D 1974 S C 322, the fact that the trial Judge had received, attested and placed on the record the security bond filed after the expiry of the prescribed period without an application for the extension of time was commented by the Court that there shall be no extension of time by implication. As a result the Court rejected the plaint under section 23 (4) of the Act. The facts of A I R 1938 Lah. 606 were that the Court had ordered for a fresh security under clause (b) of subsection (5) of section 22 of the Punjab Pre‑emption Act and since there was no scope for extension of time thereunder, the High Court accordingly upheld the orders of the trial Court refusing to extend the time. Thus the authorities referred to by the trial Court were not bear ing any relevancy to the facts of the case before him. The learned Dis trict Judge had also dismissed his appeal since pre‑emptor had not filed the application for extension soon after the expiry of the period of de posit fixed by the Court.' He failed to appreciate that the pre‑emptor had already deposited a cash in the sum of Rs. 10,000 and a security in the value of Rs. 15,000 within the time fixed by the Court. He has applied for extension of time with regard to the additional security on having learnt of discrepancy in the security deposit before the settlement of the issues when the trial Court had the powers to extend the time for putting an additional security bond in the sum of Rs. 5,000.

6. In view of what has been stated above, the circumstances indicate that the Courts below have acted in the exercise of their jurisdiction illegally and with material irregularity in not granting extension to the pre‑emptor petitioner to put in an additional security bond in the sum of Its. 5,000 as prayed for. The judgments and decrees. of the Courts below are, therefore, set aside. Petitioner's suit is restored. He shall now deposit an additional security bond in the sum of Rs. 5,000 to the satisfaction of the trial Court on or before 31st July, 1983. Parties are left to bear their own costs.

M. Y. H. Petition accepted.

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