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Regular Second Appeal No. 429 of 1977, decided on 15th April, 1986.

---S. 22(4)‑West Pakistan General Clauses Act (VI of 1956), S.8- Zar‑i‑Panjum‑Deposit of‑Requirements‑Last date allowed to pre‑emptor for deposit of Zar‑i‑Panjum being holiday, he could deposit same on next day‑Whole of next day would be available to pre‑emptor for malting requisite deposit ‑Court, held, could reject plaint after expiry of period allowed for making deposit and not during that period‑Proper course would be to leave pre emptor to himself for whole of the day and adjourn case to following day or to any subsequent date‑Court could reject plaint only if Zar‑i‑Panjum had not been deposited on last day available to pre‑emptor for the purpose.

Umar Hayat v. Aziz Ullah Khan etc. P L.D 1956 Lah. 297 rel.

‑‑ S. 100‑Punjab Pre‑emption Act (I of 1913), S. 22(4)‑Second appeal‑Appellate jurisdiction of High Court‑Where plaint was rejected for non‑deposit of Zar‑i‑Panjum on last day available to pre‑emptor for deposit thereof, and not on expiry of such date, High Court in second appeal could set aside such order of rejection of plaint and restore suit to be dealt with in accordance with law after allowing pre‑emptor to deposit Zar‑i‑Panjum within specified time.

Malik Allah Yar Khan for Appellant.

Ch. Qadir Bakhsh for Respondent.

Date of hearing : 15th April, 1986.

This regular second appeal has arisen out of the suit for pre‑emption. The suit was brought by the appellant, Muhammad Hayat, against the respondent, Ahmad Yar. On 31st March, 1976 the Civil Judge. Chiniot, District Jhang, before whom the suit was instituted, directed the appellant to make good the deficiency in court‑fee and also deposit Zar‑e‑Panjum (1/5th of the sale price) before 10th May, 1976. On 8th May, 1976 the appellant submitted an application seeking extension of time for deposit of Zar‑e‑Panjum stating that 9th May, 1976 being Sunday would be a holiday. (In those days, Sunday and not Friday used to be the weekly holiday). Learned Civil Judge did not pass any order on the application on 8th May, 1976. On 10th May, 1976 when the case came up for hearing before him he recorded the statement of the appellant to the effect that he had no money to make the deposit of Zar‑e‑Panjum. After recording his statement, the learned Civil Judge rejected the plaint due to the appellant's failure to deposit Zar‑e‑Panjum and making good the deficiency in court‑fee. Order of the learned Civil Judge was challenged by means of an appeal. In the grounds of appeal, it was explained by him that on 10th May, 1976 the learned Civil Judge recorded his statement at 8 a.m. in respect of the availability of the money with him at that time. It was further stated by him that he expressed his desire to deposit the requisite amount during banking hours but the learned Civil Judge rejected his plaint at 8 a.m. According to the appellant, it was on the basis of mere conjectures that it was held by the learned Civil Judge that he was not able to deposit Zar‑.e‑Panjum in time. Learned District Judge did not attend to the above explanation of the appellant and dismissed his appeal on the short ground that since, according to his own statement, the appellant had no money to deposit Zar‑e‑Panjum the plaint was rightly rejected under subsection (4) of section 22 of the Punjab Pre‑emption Act, 1913. As regards the court‑fee, it was held by the learned District Judge that the learned trial Court should [rave worked out the deficiency in court‑fee and then made order for making good the same, but since this was not done the plaint could not have been rejected for non‑payment of proper court‑fee. Feeling aggrieved by the order of the learned District Judge, regarding rejection of plaint for non‑deposit of Zar‑e‑Panjum, the appellant has come up in second appeal to this Court.

2. It was contended by learned counsel for the appellant that since 9th October, 1976, was a holiday, the appellant could deposit Zar‑e-panjum at any time on 10th May, 1976, before closing hours and, therefore, the order of rejection of plaint at 8 a. m. was not sustainable. He cited Umar Hayat v. Aziz Ullah Khan etc. (P L D 1956 Lah. 297) to support his argument.

3. On the other hand, it was submitted by learned counsel for the respondent that as the appellant had about two months' time to deposit Zar‑e-panjum and on 10th May, 1976, it was stated by him that he had no money to deposit the same the plaint was rightly rejected.

4. Facts of the case of Umar Hayat, cited by learned counsel for the appellant, are identical to those of the case in hand. In the case under report, the appellant instituted a suit on 26th August, 1952. It was adjourned to 17th October, 1952, for hearing and the appellant was directed to deposit Zar-e-panjum before that date. On 17th October, 1952, the Senior Civil Judge. who was seized of the suit, found that Zar‑e‑panjum had not been deposited and rejected the plaint. Plaintiff appeal to the District Judge against this order. The grounds ho took in the appeal were that be originally intended to deposit the required Zar-e-panjum on the 16th of October, 1952, but as the 16th of October ;had been declared a holiday he decided to deposit the same on 17th of October. It was pointed out by him that on 17th of October the case was taken up at 9‑1.5 a. m. and, therefore, he had no opportunity to deposit the money. View taken by the learned District Judge was that as the plaintiff had failed to deposit the money within the time allowed, extension of time was a matter of exercise of . discretion by the learned trial Court and that as no request had at all been made to him to extend time the order was, in the circum stances, quite pr‑per. The appeal was, accordingly, dismissed by the learned District Judge. Plaintiff then filed second appeal before the erstwhile High Court of West Pakistan. In the High Court, it was noted by Kaikaus, J. (as he then was) that although the 16th of October. 1952, was not a holiday so far as the civil Courts were concerned but had been declared as a holiday by the Punjab Government and the treasury was closed on that day and, therefore. the appellant had a right to deposit the amount on 17th October, 1952, and in this view of the matter the plaint could not have been rejected at 9‑15 a. m. as whole of the 17th of October was available to the plaintiff for deposit of money. Second appeal was, therefore, accepted by the High Court and the case remanded to the trial Court for fresh decision according to law.

5. In the instant case also last date allowed to the appellant for deposit of zar‑e-panjum, namely, 9th May, 1976, was a holiday. There fore, according to section 8 of the West Pakistan General Clauses Act, 1956, he could deposit zar‑e-panjum on 10th May, 1976. The whole of that day (10th May, 1976) was available to the appellant for making the deposit. According to subsection (4) of section 22 of the Punjab . Pre‑emption Act, plaint can be rejected if zar‑a panjum is not deposited "within time fixed by the Court." This means that the Court can reject plaint after expiry of the period allowed by it for making the deposit but not during that period. The learned Civil Judge could not, therefore, reject the plaint in the early hours of 10th May, 1976. Proper course for the learned Civil Judge was to leave the appellant to himself for whole of the 10th May, 1976, despite the, statement made by him in the early hour of the said day that he had no money, and adjourn the case to the following day, that is, 11th May, 1976, or to any subsequent date and reject plaint on the next date if zar‑e‑panjum had not been deposited on the last day available to the appellant for the purpose, that is, the 10th May, 1976. He had no jurisdiction to reject the plaint on 10th May, 1976, because order in this behalf could have been passed by him not on that day but thereafter.

6. In view of the above discussion, orders passed by the two Courts' below call for interference by this Court. I, therefore, accept this appeal, set aside the impugned orders and remand the case to the learned Civil Judge for fresh decision in accordance with law. Parties shall appears before the learned Civil Judge on 8th May, 1986. The appellant shall deposit zar‑e‑panjum before the said date. There shall be no order as to costs.

A. A. Appeal accepted.

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