Muhammad Shah Zaib Vs ADJ Bhera etc.

FORM No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

LAHORE

JUDICIAL DEPARTMENT

W.P. No. 11018 of 2025

Muhammad Shah Zaib Vs. Additional District Judge Bhera, District Sargodha etc.

Sr. No. of Date of order/ Order with signature of Judge, and that of order/ Proceeding Parties’ counsel, where necessary proceedings 16.10.2026. Mr. Yasir Javed Malik, Advocate for petitioner. Mr. Qamar Hanif Ramay, Assistant Attorney General for Pakistan.

M/s Qamar Zaman Qureshi and Barrister Hassan Khalid Ranjha, Additional Advocate Generals Punjab. M/s Mazhar Hussain Tahir, Malik Khalid Tanveer, Abdul Manan Sipra, Rana Athar Raza Khan, Fayyaz Sandhu, Barrister Muhammad Sohail Babar Khan, Barrister Saeed Hussain Nagra, Sh. Faisal Sikandar Iqbal, Muhammad Shahid Malik, Sarmad Ahmad Ghani, Mahar Salman Qutab, Syed Qaiser Gillani, Faisal Anwar Minhas, Ijaz Ahmad, Muhammad Naeem Mazhar, Ch. Imtiaz-ullah Warraich, Ch. Muhammad Naseer, Shehryar Farhan Beg, Barrister Karim Ullah Sraw, Ms. Maryam Khan Khosa, Ms. Zubera Bashir Chaudhry, Ms. Moniba Nadeem, Muhammad Waleed Waheed Chaudhry, Asif Raza Rasheed, Barrister Shahid Masood Khan, Syed Imran Ehsan, Muhammad Badar Butt, Abdullah Haroon, Muhammad Saeed Bin Noman, Dr. Muhammad Azeem Raja, Syed Ali Allow-u-Din, Muhammad Afzal, Mateen ul Haq Ch., M. Haris Jutt, Shafique Ahmad Bhutta, Zahid Saeed, Omer Riaz Chaudhary, Ms. Musarrat Rehman and Ms. Asifa Ahmad, Advocates.

MUZAMIL AKHTAR SHABIR J:- In the present case, the petitioner, Muhammad Shah Zaib (‘petitioner’), who was the defendant in the suit for possession of suit property through pre-emption filed by Respondent No.3, Ajmal Khan (‘Respondent’) against him has called in question order dated 07.11.2024 passed by Learned Civil Judge, Bhera and

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Judgment dated 04.02.2025 passed by learned Additional District Judge, Bhera respectively whereby both the learned courts have concluded that the respondent has deposited the Zar-e-Soim within prescribed time.

2.The learned counsel for the petitioner states that the impugned order and judgment are against the facts of the case and law on the subject and are liable to be set aside for the reason that in terms of Section 24 of the Punjab Preemption Act, 1991 (‘Act’), the respondent was required to deposit Zar-e-Soim within 30 days of filing of the suit, besides the learned trial court on 27.07.2024 in terms of the same had also directed the respondent to deposit one third of the Zar-e-Soim within 30 days of filing of the suit, which was to expire on 25.08.2024 whereas the respondent deposited the same on 26.08.2024, which was beyond prescribed timeframe, therefore, by allowing the objection raised by the petitioner the plaint of the suit filed by the respondent be summarily rejected.

3.The question for consideration before this Court is that although the respondent was required by law and by the trial court to deposit Zar-e-Soim, within 30 days and the 30th day was a holiday (Sunday), whether the deposit of Zar-e-Soim on the 31st day was within time. As only a short question of law is involved in this petition which can be resolved in the absence of respondent, therefore, service of notice upon him has been dispensed with.

4.For determination of the aforementioned aspect of the matter, as interpretation of Section 24 of the Act is subject matter of this petition, the same is reproduced below:

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‘24. Plaintiff to deposit sale price of the property.– (1) In every suit for pre-emption, the Court shall require the plaintiff to deposit in such Court one-third of the sale price of the property in cash within such period as the Court may fix: Provided that such period shall not extend beyond thirty days of the filing of the suit: Provided further that if no sale price is mentioned in the sale deed or in the mutation, or the price so mentioned appears to be inflated, the Court shall require deposit of one-third of the probable value of the property.

(2)Where the plaintiff fails to make a deposit under sub-section (1) within the period fixed by the Court, or withdraws the sum so deposited by him, his suit shall be dismissed.

(3)Every sum deposited under sub-section (1) shall be available for the discharge of costs.

(4)The probable value fixed under sub- section (1) shall not affect the final determination of the price payable by the pre-emptor.’

5.The suit for possession of suit property through preemption, details of which are mentioned in the plaint, was filed by the respondent against the petitioner on 27.07.2024 and on the same date the court required the respondent to deposit Zar-e-Soim within 30 days. The order dated 27.07.2024 passed by the learned trial court is reproduced below: ‘Let defendants be summoned through summons/notices alongwith registered envelop AD/UMS subject to deposit of process fee within three days for 17.09.2024. Plaintiff is also directed to deposit 1/3rd amount of Zar-e-soum within 30 days from filing of suit.’ (emphasis supplied)

6.In compliance of the aforesaid order, the petitioner deposited Zar-e-Soim on 26.08.2024, which was the 31st day and 30 days had expired on 25.08.2024, which was a Sunday. The counsel representing the petitioner before the trial court objected that as the Zar-e-Soim had been deposited beyond prescribed timeframe provided by law,

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therefore, the suit of the petitioner be dismissed. The trial court through the impugned order dated 07.11.2024 did not agree with the said objection by observing as under:- ‘Today the case was fixed for orders on the point that whether plaintiff deposited zar-e-soum within the required time as provided by Punjab Pre-emption Act. Learned counsel for the defendants had relied on 2004 CLC 538. As per rule laid down in 2004 CLC 538, the plaintiff deposited the amount of zar-e-soum on 31 day but the plaintiff relied on the rule laid down in Section-10 of General Clauses Act, 1897, same is re-produced as under:

“Where, by any Federal Act or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any court or office on a certain day or within a prescribed period, then, if the court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the court or office is open”

The amount of zar-e-soum was deposited on 26.08.2024 i.e on 31st day while on 25.08.2024 it was Sunday and the court was closed on that day i.e the last day prescribed by Section-24 of the Punjab Pre-Emption Act. Hence, keeping in view the rule laid down in Section-10 of General Clauses Act, 1897 it is concluded that plaintiff has deposited the amount of zar-e-soum within the prescribed time. Now to come up for submission of written statement with only one opportunity for

7.The petitioner filed a revision petition to challenge the said order, which was dismissed by the learned Additional District judge on 04.02.2025 by observing that on 25.08.2024 there was holiday of Sunday, therefore, the respondent could not deposit Zar-i-Soim on 25.08.2024 being a holiday of bank, so

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it is held that learned civil court rightly passed the impugned order quite in accordance with law. Both the said orders have been called in question through this constitutional petition.

8.In support of his claim the learned counsel for the petitioner has relied upon Muhammad Arshad (deceased) through L.Rs. versus Bashir Ahmad (deceased) through L.Rs. and others (2024 SCMR 1369) to state that the court has held that even the court cannot extend the period of 30 days for depositing Zar-e-Soim prescribed by Section 24 of the Act beyond 30 days of filing of suit as the period of 30 days begins to run from the date of filing suit and not from the date when the order requiring such deposit was actually passed.

9.The facts in issue in the afore-referred matter (case of Muhammad Arshad) were that the plaintiff-respondent therein filed a suit to pre-empt the sale of land in favour of appellant. The suit was filed on 12.06.2004. On the request of learned counsel for the plaintiff-respondent for preliminary hearing it was adjourned and fixed for 14.06.2004 as 13.06.2004 was a holiday. The question that arose was that whether in the light of section 24 of the Act "Zare Soim" was to be deposited within 30 days from the date of filing of the suit or from the date of order passed by the court. The learned trial court dismissed the application for rejection of the plaint filed under Order VII, Rule 11, C.P.C. but the learned revisional court accepted the revision petition and dismissed the suit on the ground that the plaintiff-respondent was bound to deposit 1/3rd of the sale consideration amount in the light of Section 24(2) of the Act within 30 days from the date of filing of the suit and as

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admittedly the 1/3rd amount was deposited after 30 days from the date of filing of the suit, therefore, the suit was not proceedable and the same was dismissed. The writ petition filed by the plaintiff-respondent against the said order of dismissal of suit by the learned revisional court was allowed through the judgment dated 21.02.2007, against which the petition for grant of leave was filed, leave was granted and thereafter while referring to previous case laws, appeal was allowed by holding that the revisional court had rightly dismissed the suit under valid provisions of law for the reason that period of 30 days for deposit of Zar-e-Soim was to be calculated from the date of filing of suit and not from the date of order requiring deposit of the same. For reaching such conclusion some paragraphs of previous judgments were also quoted, which are reproduced here after for ready reference.

10.The following paragraph of case reported as Malik Tariq Mahmood and others v. Ghulam Ahmed and others (PLD 2017 SC 674) was quoted: "However, through first proviso of the section ibid such discretion is circumscribed/restricted by a maximum of 30 days from the date of filing of the suit meaning thereby that the Court may require the pre-emptor to deposit the zar-e-soim within a period ranging from one day to thirty days but under no circumstances the Court is left with any power/discretion to allow the pre-emptor to make deposit of the zar-e-soim beyond the period of 30 days. The first proviso places a specific embargo/restriction on the powers of the Court from extending the time for deposit of zar-e-soim beyond the period of 30 days to be reckoned from the date of filing the suit."

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Reference was also made to Hasnain Nawaz Khan v. Ghulam Akbar and another (PLD 2013 SC 489). Relevant paragraph of which is also reproduced:-- "It may further be relevant to mention here, that as the deposit within thirty days is the clear command of the law, therefore, even where the Court, on account of omission or the lapse, has failed to specify the time in this behalf, it shall be deemed that full 30 days period has been allowed by the Court to the plaintiff to make the payment and notwithstanding such omissions (lapse), it shall be the duty of the pre-emptor himself to make the deposit within a period of 30 days from the institution of the suit."

Reliance was also placed on Hafiz Muhammad Ramzan v. Muhammad Bakhsh (PLD 2012 SC 764), relevant paragraph is as under:- "Thereafter, neither petitioner was left with any right to seek extension of statutory fixed time of 30 days, nor in law (under reference) it was permissible for the Court to grant any extension, because the Court under no circumstances has the jurisdiction and the authority to extend this statutory period of 30 days, because the power/discretion of the Court to extend time as envisaged by section 148 of the C.P.C. is only available to the Court, where the time has been fixed, by the Court itself or under the Code of Civil Procedure, but where the time for the performance of an act has been fixed by some other statute, the Court in terms of section 148, C.P.C. has no jurisdiction at all to enlarge and extend that time."

11.This Court is bound by the principles laid down in the abovementioned judgments in view of Article 189 of the Constitution of Pakistan, 1973 and is also in conformity with the principles laid down here in to the effect that the court is not vested with any jurisdiction to extend time for deposit of Zar-e- Soim beyond period of 30 days from filing of suit as fixed by the Section 24 of the Act. Having observed

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above, it is noted that in the aforementioned judgments the question in issue was not that last day for deposit of Zar-e-Soim was a public holiday, as has happened in the instant case, as the last day fell on a Sunday. Similar situation arose in Nabi Ahmed and others versus Muhammad Arshad and others (2008 SCMR 1685), wherein the last day for depositing Zar-e-Soim was Sunday, the Supreme Court with reference to Sections 8 and 9 of West Pakistan General Causes Act, 1956 (now The Punjab General Clauses Act, 1956) held that if the limitation period for depositing Zar-e-Soim expired on a day when the court was closed on account of a public holiday or Sunday, the deposit could validly be made on the next day. As reference to Sections 8 and 9 of the General Clauses Act, 1956 was made, the same are reproduced for clarity:

‘8. Commencement and termination of time.– In any Punjab Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time to use the word “from” and for the purpose of including the last in a series of days or any other period of time to use the word “to”.

9.Computation of time.– Where, by any Punjab Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open: Provided that nothing in this section shall apply to any act or proceeding to which the Limitation Act, 1908, applies.’

The operative portion of afore-referred case of Nabi Ahmad is reproduced below:

‘9. By section 8 of the West Pakistan General Clauses Act, 1956, it is provided that it

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shall be sufficient for the purpose of excluding the first in series of days or any other period of time to use the word ‘from’ and for the purpose of including the last in series of days or any other period of time to use the word ‘to’ section 9 of the said Act also permits the filing of a suit on the first day of re-opening of the Court where limitation period expires on a day when the Court is closed on account of a public holiday reference may usefully be made to the case of Obaid -ud-Din and others v. Faiz Muhammad Khan and others 1987 SCMR 216. It was Sunday on 25-11-2001 (holiday). Therefore, the deposit was validly made on the next day i.e. 26-11-2001. In our view, by enacting first proviso to section 24 of the Act, 1991 the legislature does not seem to have expressed any intention contrary to the provisions of sections 8 and 9 of the West Pakistan General Clauses Act, 1956.’

12.In the instant case also the last day for deposit of Zar-e-Soim i.e. 25.08.2024 was a Sunday and payment was deposited on 26.08.2024. In view of the observations recorded in the Nabi Ahmad’s case mentioned above, which have a binding effect on this Court, the provisions of Section 9 of the General Clauses Act, 1956 would be applicable to it and as on the last day for deposit of Zar-e-Soim being Sunday, the court as well as the bank was closed, therefore, the deposit was rightly made on the next day, which could not be treated as beyond the timeframe prescribed by law.

13.In view of what has been discussed above, it is observed that as the impugned decisions passed by the both the trial court and appellate court are in accordance with the principles laid down in Nabi Ahmad’s case mentioned above, the said decisions do not call for any interference by this Court at this stage. However, it is noted that the learned trial court for reaching said conclusion referred to Section 10 of the

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General Clauses Act, 1897 which was applicable to the Federal Laws and not to the Punjab Preemption Act, 1991 which is a provincial law and instead of the said provision, Section 9 of the Punjab General Clauses Act, 1956 would be applicable to it. However, on the said account there is no reason to interfere in the impugned decisions as both the aforementioned provisions are pari materia.

14.For what has been discussed above, the impugned orders do not suffer from any illegality or jurisdictional defect, misreading and non-reading of record for this Court to warrant interference.

15.In view thereof, this petition being without any merit is dismissed.

(Muzamil Akhtar Shabir) Judge Naveed*

Approved for reporting