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Civil Petition for Special Leave to

Appeals Nos. 673 and 674 of 1981, decided on 4th September, 1985.

(From the judgment of the Lahore High Court, Lahore, dated 25‑4‑1981 in Writ Petitions Nos. 2136 and 2135, respectively of 1981).

‑‑‑Art. 185(3)‑‑Punjab Pre‑emption Act (I of 1913), S. 22(4)‑‑Pre‑emption suit‑‑Extension of time for deposit of Zar‑e‑Panjum refused by trial Court but allowed by first appellate Court‑‑High Court's order affirming extension of time, impugned‑‑Exercise of discretion by first appellate Court being neither fanciful nor arbitrary, held, unexception able‑‑Leave to appeal refused.

Niaz Ali v. Ibrahim P L D 1976 Lah. 1057; Hadayat Ullah v. Murad Ali Khan P L D 1972 S C 69 and Ejaz Nabi v. Ghulam Hussain 1970 S C M R 169 ref.

Iftikhar Ahmad Dar, Advocate Supreme Court with S. Abid Nawaz, Advocate‑on‑Record for Petitioners (in both Appeals).

Nemo for Respondents.

Date of hearing: 4th September, 1985.

‑These two petitions for leave to appeal are directed against judgment, dated 25‑4‑1981 of the Lahore High Court; whereby two writ petitions filed by the petitioners arising out of two suits for pre‑emption filed by the respondents, were dismissed.

2. In the suits for pre‑emption, the plaintiffs having been refused (by the trial Court) extension of time for deposit of the Zar‑e‑Panjum, were permitted by the District Court in its revisional jurisdiction to make the deposit. Petitioners were unsuccessful in the High Court.

3. Learned counsel for the petitioners contended that the District Judge was exercising revisional jurisdiction under section 115, C. P. C. therefore, he could not have in his discretionary jurisdiction, set aside an order passed by the trial Court in exercise of its discretionary jurisdiction under section 22(4) of the Punjab Pre‑emption Act, 1913. He also contended that the exercise of discretion by the District Judge was fanciful and arbitrary, therefore, relying on Niaz Ali v. Ibrahim. P L D 1976 Lah. 1057, as also Hadayat Ullah v. Murad Ali Khan P L D 1972 S C 69, he contended, the order of the District Court impugned before the High Court, was liable to be set aside.

4. Both the cases relied upon by the learned counsel were cited before the High Court. It also took note of another case decided by this Court namely Ejaz Nabi v. Ghulam Hussain 1970 S C M R 169. After taking note of the relevant case‑law on the point a learned Single Judge in the High Court repelled the contentions raised from the petitioner side.

5. The learned District Judge after taking due note of the facts and circumstances of the case came to the following conclusion:

"In the given circumstances, therefore, the learned Senior Civil Judge did not apply his mind to the facts and the circumstance of the case and he acted arbitrarily and against the principle of justice. I have already observed in one of my previous judgments in an appeal that the learned Senior Civil Judge had not passed proper order and had not appreciated the correct position of the case. The same is the position in the present case also. He should have allowed the application of the petitioner for extension of time for depositing one‑fifth of pre‑emption money but he acted arbitrarily by writing a perfunractory judgment. He is advised to consider the facts and circumstances of every individual case with a patient mind as it is the duty of the judicial officer to apply his mind judicially keeping in view the circumstances and facts of each individual case "

The exercise of the discretion by the learned District Judge was, unexceptionable. It was neither fanciful nor arbitrary, on the one hand this could rightly be said about the order of the trial Court. These petitions merit dismissal. Leave to appeal is accordingly refused.

M. I. Leave refused.

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