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Civil Appeal No. 5 of 1956, decided on 28th October, 1959.

(On appeal from the judgment and order of the Court of the Judicial Commissioner, North-West Frontier Province, .Peshawar, dated the 3rd February, 1955, in Miscellaneous Application No. 31 of 1954).

---S.23(4)--Extension of time for deposit of pre-emption money--Discre tion of trial Court is absolute and is not restricted by any statutory considerations--Court, therefore, can extend time for deposit of pre-emption money beyond last date for institution of suit--Section 23(4) contains no indication whatsoever of grounds on which time may or may not be extended.

Ghulam Mohy-ud-Din, Senior Advocate Supreme Court along with Said Akbar Khan, Advocate, Supreme Court instructed by Nazir-ud-Din, Attorney for Appellant.

Mushtaq Hussain, Advocate Supreme Court instructed by Zahir Abbas, Attorney for. Respondent No.l.

Nemo for Respondent No.2.

Date of hearing: 28th October, 1958.

This is an appeal from a revisional order of the 'Judicial Commissioner, N.-W.F.P., Peshawar.

Haji Muhammad exchanged his land with Sultan Muhammad Khan. Khuda Bakhsh instituted a suit for the pre-emption of this land, alleging that the transaction of exchange was in fact a sale. The plaint was presented in Court on 12th December, 1953, and it came up for hearing before the Senior Subordinate Judge, Peshawar, on 28th December. On that day the Court issued summons to the defendant for 14th January, 1954, and ordered the plaintiff to deposit Rs.1,000 in Court as pre-emption money before that date. On 11th January, 1954, the plaintiff made an application requesting the Court to revise its order regarding the deposit of pre-emption money, on the ground that the land was under mortgage and that the money had to be paid to the mortgagee. This application was rejected on 14th January, 1954, and at the request of the plaintiff time for deposit was extended to 30th January, 1954, and the plaintiff was ordered to pay Rs.30 as damages.

The defendant moved the High Court to revise the order extending the time for deposit and the learned Judicial Commissioner set aside the trial Court's order on the ground that the extension had been granted without any good and sufficient reasons in favour of a pre-emptor whose conduct had been mala fide.

After hearing counsel on both sides we are of the opinion that the view taken by the learned Judicial Commissioner is unsustainable. Under section 23, subsection (4) it is for the Court to extend time for the deposit of the pre-emption money and that provision contains no indication whatsoever of the grounds on which time may or may not be extended. The discretion of the trial Court is, therefore, absolute and is not restricted by any statutory considerations. We are unable to accept the contention of the learned counsel for the respondent that the extension cannot extend beyond the last date for the institution of the suit and that a Court acts illegally or with material irregularity if the time for the deposit is extended beyond the period of limitation for the suit. In the present case, the appellant prayed for the revision of the order of deposit 3 days before the date by which the deposit could have been made. If the Court had rejected this application on that very day the plaintiff still had 3 days within which to make the deposit. The Court, however, extended the time to 30th January and ordered the plaintiff to pay Rs.30 as damages. There was, therefore, no irregularity on the ground of which the Judicial Commissioner could have interfered in revision. It was obviously not a case of lack of jurisdiction in the trial Court as the learned Judicial Commissioner seems to think and there was no illegality or material irregularity in the procedure adopted. Nor are we able to accept .the finding in revision that the plaintiff's conduct in not depositing the amount within the time originally fixed and in asking for a review of that order was mala fide. We, therefore, accept this appeal and set aside the order of the Judicial Commissioner rejecting the plaint, and direct the restoration of the plaint to its original number. Costs of this appeal will be costs in the cause.

M.Z.M. Appeal accepted

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