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(On appeal from the judgment of Peshawar High Court, D. I. Khan Bench, dated 8‑10‑1979 passed in Civil Revision No. 48 of 1978).

(a) North‑West Frontier Province Pre‑emption Act (XIV of 1950)‑-

‑‑ S. 23(1) ‑Pre‑emption suit‑Time for payment of pre‑emption amount should be reasonable.

(b) Constitution of Pakistan, 1973)‑

‑‑ Art. 185(3)‑North‑West Frontier Province Pre‑emption Act (XIV of 1950),‑ S. 23(1)‑Pre‑emption suit‑Time for deposit of pre emption money ‑Extension‑Discretion of Court‑Leave to appeal granted to examine argument that trial Judge in lawful exercise of his discretionary jurisdiction under S. 23 had fixed particular time for deposit of pre‑emption money and dismissed suit for non compliance of that order in absence of any valid excuse of plaintiff for not having deposited pre‑emption money in time, and interference by first appellate Court was neither justified in law nor on facts of case.

(c) North‑West Frontier Province Pre‑emption Act (XIV of 1950)‑-

‑‑ S. 23‑Pre‑emption suit‑Time for deposit of pre‑emption money‑Extension‑Discretion of Court‑Discretion to be exercised to meet ends of justice and there is no impediment of law or propriety in this behalf.

Niaz Muhammad Khan v. Mian Fazal Raqib P L D 1974 S C 134 distinguished.

Muhammad Shabbir and others v. Bashir Ahmad 1974 S C M R 24 ref.

(d) North‑West Frontier Province Pre‑emption Act (XIV of 1950)‑

---S. 23‑Pre‑emption suit ‑Time for deposit of pre‑emption money‑Extension Discretion of Court‑No procedural impe diment should be considered as insurmountable unless it was laid down by law as an impediment‑Where discretion was not controlled by any prescribed procedure nothing could be imported so as to stiffle a discretionary relief.

Abdul Samad Khan, Advocate‑on‑Record for Appellants.

Khan Bahadur Khan. Advocate Supreme Court and Jan Muhammad Khan, Advocate‑on‑Record for Respondent No. 1.

Respondents Nos. 2 to 4 : Ex parte.

Date of hearing :15th December 1985.

MUHAMMAD AFZAL ZULLAH, J.

‑This appeal through leave of this Court is directed against judgment, dated 8‑10‑1979 of the Peshawar High Court ; whereby a Civil Revision filed by the appellant arising out of pre‑emption suit filed by the respondent, was dismissed.

Respondent filed the suit for pre‑emption on 21‑7‑1975. It was adjourned to 25th of September, 1975 for the appearance of the opposite party. Section 23, subsection (1) of the N.‑W. E. P. Pre‑emption Act required that "in every suit for pre‑emption the Court shall at any time before the settlement of issues require the plaintiff to deposit in Court such a sum as does not . . . . ." In pursuance of this provision the order sheet shows that instead of fixing the date of deposit as a few days before the framing of the issues which would have taken placed on 25th of September, 1979 the date of deposit was given as 22nd July, 1975 meaning thereby that the respondent‑plaintiff was allowed only 24 hours to make the deposit, which obviously runs counter to the line of authority on this subject that the time allowed should be reasonable. Be that as ill may, the deposit was not made on 22nd of July, 1975. Instead, on 18‑9-1975 thinking that there was some confusion about the date of the respondent‑plaintiff made an application to the learned Court for permission to make the deposit. On a report submitted by the office that on 21st July, 1975 an order was passed for deposit of Rs. 3,200, the learned Civil Judge on the same day i.e. 18‑9‑1975 permitted Rs. 3,200 to be deposited. Notwithstanding the same when the case came up for hearing on 5‑10‑1975 a learned successor Judge held that the respondent plaintiff had not deposited the money within the time originally fixed, accordingly on account of this default the plaint was rejected under section 23(5)(b) of the N.‑W. F. P. Pre‑emption Act.

On appeal, the learned District Judge held that it was on account of a clerical mistake that the date fixed for deposit of the amount was mentioned as 22nd of July, 1975. Instead, according to the facts and circumstances of the case and according to the practice of the Court it was and should have been 22nd of September, 1975 i.e. 3 days before the framing of the issues. That being so, the order having been read with this clerical correction, it was held that there was no con travention of the order for the deposit. It was also held that the date 22nd July, 1975 was written by the Reader who probably made an inadvertent clerical mistake because there is difference of ink used in the different parts of the order‑sheet. It was also held by the learned District Judge that the time purported to have been allowed for deposit of the money namely, only 24 hours was such that it could never have been given by the Court. In any case, the learned Judge treated it as a case fit for extension of time both by the trial Court under subsection (4) of section 23 as well as by the appellate Court under subsection (2) of section 23 and accordingly, the plaintiff's‑respondent's appeal was allowed with the finding that the deposit made on 18‑9‑1975 was legal. The case was remanded to the learned trial Court for decision on merits.

The learned Single Judge in the High Court, after careful scrutiny of the facts and the precedent law involved in the case, came to a definite conclusion, as follows :‑

I am, therefore, of the opinion that the trial Judge in fact had directed the pre‑emptor to deposit the money by 22‑9‑1975' and not by 22‑7‑1975'."

There is more than enough support for the view fond on .the factual controversy by the learned appellate Court and the revisional Court. The learned judge in the High Court also relying on Muhammad, Shabbir and others v. Bashir Ahmad (1974 S C M R 24), additionally thought that the appellate order of the District Judge could be treated as one having been passed under subsection (2) of section 23, and that being so, there was no merit in the revision filed by the present appellant. Lastly, it was held that the trial Court having acted reasonably, in allowing the deposit on 18‑9‑1975 and not acting on the original' order dated 21st July, 1975 which had erroneously mentioned, the, date, of deposit as 22nd July; 1975 had correctly exercised discretion. Accordingly, the appellant's revision, was dismissed.

Leave was granted to examine the following argument of the learned counsel for the appellant:‑

"that the learned trial Judge in lawful exercise of his discretionary jurisdiction under section 23 of the N.- W. F. P. Pre‑emption had fixed the particular time for deposit of pre‑emption money and dismissed the suit for non‑compliance of that order in the absence of any valid excuse of the plaintiff for not having deposited the pre‑emption money in time, and the interference by 'the first appellate Court was neither, justified in law nor on facts of case.

The findings of fact by the leaned, appellate anti the revisional Court are that in reality the date fixed Initially by the learned trial Court by order dated 21‑7-1975 for deposit of the amount was 22nd of September 1975 and that the, month of July, instead of September was recorded in the order on account of it clerical error which could lawfully be corrected by the learned trial Court either suo motu or on application made, by the plaintiff-respondent. In this case the plaintiff‑respondent did make an application and the trial, Court had ample power in its discretion to allow the application by its order dated 18-9‑1975. The learned successor Judge totally ignored this grant of permission by his predecessor on 18‑9‑1975. Had it not been so, the results might have different even, at that initial stage.

Be that as it may the approach of the learned appellate Court and the Revisional Court is in line With the weight of authority namely that the discretion allowed by law under section 23 of the Pre‑emption Act is to be exercised to meet the ends of justice and there is no impediment of law or propriety in this behalf. The ruling of this Court cited from the appellant side before the High Court namely Niaz Muhammad Khan v. Mian Fazal Raqib (P L D 1974 S C 134), was rightly distinguished as in that case there was in fact no extension of time by the Court. Instead the mere deposit of the money subsequent to the date fixed for that purpose was sought as an implied extension which view was not accepted, and it was held that the Court cannot be deemed to have extended the time fixed by it for furnishing security under section 23(1) of the Act merely by accepting the security after the specified period. The time must be extended by an express order made after the application of the mind to the circumstances necessitating extension. In this case application was made by the respondent‑plaintiff where upon the then learned trial Judge by his order dated 18‑9‑1975 did pass an order by application of mind permitting the deposit to be made, although, technically speaking, the time for deposit had passed. The said ruling of this Court in the case of Niaz Muhammad Khan has therefore, rightly been distinguished by the High Court. Instead, this case is clearly covered by the liberal interpretation of similar provision by this Court in Malik Hadayat Ullah and 2 others v. Murad Ali Khan (1). In that case the Court had rejected the 80plication for extension of time made on the last date fixed for the deposit of the money, however, it had suo motu extended the time for making the deposit by one month. The High Court had held in revision that in absence of any application for extension of time the Court had no jurisdiction to extend it. This view was not accepted and it held that the Court was fully competent sue mote to extend the time. It was also observed as follows :‑

"It will be apparent from the language of subsections (4) and (5) (b) of section 22 that the rejection of the plaint or the dismissal of the suit will be ordered if the plaintiff fails to make the deposit within the "time fixed by the Court" or "within such further time as the Court may allow to make the deposit or furnish the security". This clearly contemplates that the Court has the power to extend the time. This is no doubt a discretionary power, which like all other judicial discretions, must be exercised upon sound judicial principles, but it can, by no stretch of imagination, be said that the Court has no jurisdiction to extend the time at all.

The Punjab Pre‑emption Act does not prescribe any procedure for obtaining such extension of time but upon general principles a Court has normally to be moved by an application of some kind, either oral or written. This does not, however, meant that the Court has no jurisdiction, in the absence of any such application, to grant a discretionary relief where the justice of the case so requires. In the absence of any provision in the Statute or in the rules made under the Statute expressly providing that the Court shall act on the application of a party it cannot be said that such an application is a condition precedent to the exercise of the power. The power does not become nugatory, if no application is made for invoking that power. If the Court could we are clearly of opinion that it could under subsection (4) of section 22‑‑extend time, then it could do so either on the application, written or oral, of a party or even suo motu where the justice of the cause so demanded."

The ratio in the case of Malik Hadayat Ullah is so clear, namely, that no procedural impediment should to considered as insurmountable unless it is laid down by law as an impediment. If, on the other hand, the discretion is not controlled by any prescribed procedure, nothing should be imported so as to stifle a discretionary relief.

In the light of the foregoing discussion the impugned judgment of the learned District Judge and the High Court are unexceptionable. No justification has been made out for interference. This appeal accordingly, is dismissed. There shall be no order as to costs.

M. B. A. Appeal dismissed.

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