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Civil Petition No. 719 of 1977, decided on 30th May, 1984.

(On appeal from the judgment dated 8-10-1977 of the Lahore High Court in Regular First Appeal No. 71 of 1963).

--Art. 185(3)--Punjab Pre-emption Act (I of 1913), S. 22(4)--Deposit of Zar-e-Panjum--Trial Court passing an order on 22-5-1963 directing plaintiff to deposit Zar-e-Panjum before 23-7-1963--Plaintiffs however instead of depositing Zar-e-Panjum before 23-7-1963 deposited same on said date--Trial Court rejected plaint by its order dated 15-10-1963 under S. 22(4), Punjab Pre-emption Act, 1913--High Court extending date of deposit by one day and remanding case to be decided on merits on 8-10-1977--Leave to appeal granted to consider contentions (i) that finding of High Court that deposit of Zar-e-Panjum even though after time fixed therefore could be considered to be sufficient compliance with order of Court, was untenable and that High Court could not substitute its own discretion for that of trial Court to extend time; (ii) that sale took place in year 1962 and trial Court refused to exercise its discretion in favour of pre-emptor and rejected plaint in 1963, High Court was not justified in upsetting discretion of trial Court exercised some 14 years ago and resurrect a dispute which was practically dead.

S. Jamil Hussain Rizvi, Senior Advocate Supreme Court, Munir Ahmad, Advocate Supreme Court with Ali Imam Naqvi, Advocate-on -Record for Petitioners.

Hamid Aslam Qureshi, Advocate-on-Record for Respondents.

Date of hearing: 30th May, 1984.

The respondents filed a suit on 13-4-1963 for possession of the suit land on the basis of pre-emption. The learned Administrative Civil Judge, Multan, passed an order on 22-5-1963 directing the plaintiffs-respondents to deposit the Zar-e-Punjam amounting to Rs.40,000 before 23-7-1963. The plaintiffs, however, instead of depositing Zar-e-Punjam before 23-7-1963, deposited it on the said date, namely, on 23-7-1963. The defendant, therefore, requested the Court to reject the plaint of the pre-emptors for non-compliance of its order for deposit. The learned trial Court accepted this prayer and rejected the plaint by its order dated 15-10-1963 under section 22(4) of the Punjab Pre-emption Act.

Aggrieved by the judgment and decree of the learned Administra tive Civil Judge dated 15-10-1963, the respondents filed an appeal before the Lahore High Court. This was accepted on two fold grounds; firstly, that the deposit of Zar-e-Panjum on 23-7-1963 could be treated as a valid tender and amounted to a sufficient compliance with the order of the Court and, secondly, that in any case, this was a fit case for the learned Administrative Civil Judge, Multan to have extended one day's time in favour of the plaintiffs. The appeal was, accordingly, accepted and the High Court extended the time by one day i.e. up to 23-7-1963 and held that the Zar-e-Punjam deposited by the plaintiffs respondents on 23-7-1963 be considered to be a deposit within the extended period. The case was remanded to the learned trial Court, with this direction, for fresh decision on merits. The above judgment was passed on 8-10-1977. The petitioners have now challenged the above decision by this petition for leave to appeal.

It is, inter alia, contended before us that the finding of the High Court that the deposit of Zar-e-Panjum, even though after the time fixed therefore could be considered to be a sufficient compliance with the order of the Court, is untenable and that the High Court could not substitute its own discretion for that of the trial Court extend the time. It has also been submitted before us that the sale took place in the year of 1962 and the learned Administrative Civil Judge refused to exercise his discretion in favour of the pre-emptors and rejected the plaint in the year 1963. The High Court was not justified in upsetting the discretion of the trial Court exercised some 14 years ago and resurrect a dispute' which was practically dead.

These submissions require further consideration. Leave is, accordingly, granted.

Security in the sum of Rs.1,000.

The interim order granted on 14-12-1977 shall continue to remain operative meanwhile.

M. Z. M. Leave granted

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