1989 PLP 4483 (MLD)

SAEEDUZZAMAN SIDDIQUI, J.--The petitioners have challenged the order of respondent No.2 dated 5-4-1980. passed on the Revision Application No.61/79-80 filed by respondent No.4. By the impugned order respondent No.2 set aside the order dated 22-7-1979 passed by the Commissioner, Hyderabad, on the appeal of petitioner and extended the time for payment of pre-emption money by respondent No.4 up to 30th April, 1980. The following is the background of controversy. Respondent No.4, who is a 'Hari' on the land bearing Nos.65, 66, 78 and 79 of Deh Noohari Taluka Johi since 1971-72, filed an application before Deputy Commissioner, Dadu, exercising his right of pre-emption under Paragraph 25 (d) of Martial Law Regulation No.11.5 (Land Reform Regulation of 1972). The application of respondent No.4 was allowed by Deputy Commissioner, Dadu by his order dated 31-12-1978 on the following terms;- "Under the above facts since the petitioner has pre-emption right and the opponent is also prepared to sell the disputed land to him, the petitioner Muhammad Ramzan is allowed to purchase the same land at the same price from the opponent Haji Muhammad Hassan within two months. In case the applicant is not able to purchase the land within two months his claim will be void and he will remain as hari of the land in question." It is an admitted position' that respondent No.4 did not deposit the amount of pre-emption money within the time fixed by order dated 31-12-1978. However, he moved an application dated 26-2-1979 before Deputy Commissioner, Dadu, praying for the extension of time. This application was allowed by the Deputy Commissioner on 6-3-1979 without issuing notice to petitioners and time for payment of pre-emption money was extended by two months. The petitioners challenged the order dated 6-3-1979 before Commissioner, Hyderabad Division in appeal which was allowed on 22-7-1979 and the order of Deputy Commissioner, Dadu, granting extension of time for payment of pre-emption money by two months was set aside. On revision filed by respondent No.4 against the above order of Commissioner, Hyderabad, respondent No.2 set aside the order of Commissioner Hyderabad and restored the order of Deputy Commissioner, Dadu by allowing time to respondent No.4 to pay the pre-emption money before 30-4-1980. It is contended by the learned counsel for the petitioners that the order passed by the Deputy Commissioner Dadu on 31-12-1978 allowing the application of respondent No.4 on condition of payment of pre-emption money within two months from the date of order was in the nature of a decree and as such the subsequent order of Deputy Commissioner dated 26-2-1979 extending the time for another two months without notice to petitioners was patently without jurisdiction. It is accordingly contended that the order dated 26-2-1979 was rightly set aside by the Commissioner, Hyderabad which could not be set aside in revision. Mr. Hassan Mahmmood Baig, the learned counsel for respondent No.4 on the 4 contended that the order passed by Deputy Commissioner, Dadu, on 31-12-1978 fixing the time for payment of pre-emption money within two months was not a final order and as such the Tribunal had the jurisdiction to further extend the time for payment under Section 21 of the General Clauses Act. It is urged by the learned counsel that it is only in these cases where time for payment of pre emption money was fixed by consent of the parties that the Court could not extend the same otherwise the Court had full jurisdiction to extend the time under section 148, C.P.C. in other cases. In support of his contention that where the time for payment of pre-emption money has not been fixed by the Court with the consent of the parties the Court could extend the time, the learned counsel relied on the case of Fazal Mahmood v. Taj 1976 SCMR

189. It is also contended by Mr. Hassan Mahmood Baig, that the order passed by the Deputy Commissioner under paragraph No.25(2)(D) of M.L.R.115 could not be treated as decree of the Civil Court as the proceedings under paragraph 25(2)(D) of M.L.R.115 were governed by the procedure prescribed under M.L.R.115 and the Sind Tenancy Act. Mr. Riaz Ahmed for Official respondents and Mr, Mulazim Hussain Kalachi Baloch, for the respondent No.5 supported the arguments of Mr. Hassan Mahmood Baig and adopted the same. After hearing the learned counsel for the parties at length we are of the view that the order dated 5-4-1980 passed by respondent No.2 cannot be sustained in law. We have already re-produced, in the earlier part of this order, the operative portion of the order passed by the Deputy Commissioner, Dadu, in his capacity as a Tribunal on 31-12-1978. The above order passed by the Deputy Commissioner, Dadu, allowing the pre-emption application of respondent No.4 and fixing a time limit for payment of pre-emption money was for all practical purposes of a decree of the Civil Court in view of the provisions contained in sub?-paragraphs (5) and (8) of paragraph 25 of M.L.R.115. It will be useful to reproduce here sub-paras (5) and (8) of paragraph 25 of M.L.R.115 which read as follows:- "(5) All the suits for enforcing the right of pre-emption in respect of land comprised in a tenancy shall be exclusively entertained, heard and decided by the Collector within whose jurisdiction the land in respect of which the right of pre-emption has been claimed is situated, and all such suits which may be pending in any Court immediately before the commencement of the Land Reforms (Amendment) Ordinance, 1976, shall, on such commencement, stand transferred to the Collector concerned. (6)??.... (7)??..... (8) For the purposes of this paragraph a Collector, a Commissioner and the Board of Revenue shall be deemed to be a Civil Court and shall have all powers of a Civil Court under any law for the time being in force and the final order passed in such suits shall be deemed to be a decree of a Civil Court and shall be executed as such." In these circumstances the time fixed for payment of pre-emption money in the order dated 31-12-1978 shall be deemed to be the time fixed under the decree of the Court which could neither be extended under Section 148 C.P.C. nor under Section 21 of General Clauses Act. The order dated 26-2-1979 passed? by Deputy Commissioner, Dadu, extending the time for 2 months without notice to petitioner was, therefore, an order wholly without jurisdiction. If any authority is needed in this behalf reference may be made to the case of Shah Wali v.? Ghulam Din alias Gaman and another PLD 1966 SC

983. This being the legal position with regard to order dated 26-2-1979, it was rightly set aside by the Commissioner, Hyderabad Division in appeal and as such the respondent No.2 could not set aside the order of the Commissioner, Hyderabad, in revision as the order neither suffered from any illegality nor from any defect of jurisdictional character. There is yet another very important aspect of the case which respondent No.2 failed to notice while setting aside the order of Commissioner Hyderabad, Division. The petitioner alongwith the petition has filed a letter dated 2-6-1979 written by the Deputy Commissioner, Dadu, to Commissioner; Hyderabad in which it is clearly stated that no amount of pre-emption money was deposited by respondent No.4, in spite of extension haring been granted and as such the proceedings before the Deputy Commissioner became infructuous. Mr, Hassan Mahmood Baig, the learned counsel for the respondent No.4 has contended before us that the respondent No.4 had offered the amount to petitioners within the extended period but it was refused. It is also contended by Mr. Baig that respondent No.4 could not deposit the amount with Deputy Commissioner, Dadu, as petitioners had filed appeal before the Commissioner, Hyderabad, and obtained status quo order. There is nothing on record to show that respondent No.4 made any attempt to deposit the amount with Deputy Commissioner, Dadu. On the contrary the letter dated 2-6-1979 written by Deputy Commissioner to Commissioner, Hyderabad, completely belies the contention of respondent No.4. In these circumstances the order of respondent No.2 extending the time for payment of pre-emption money upto 30-4-1980 was arbitrary. We accordingly allow the petition and declare the order of respondent No.2 dated 5-4-1980 as without lawful authority and of nor legal effect. The learned counsel for respondent No.5 contended that their client being the bona fide purchaser for value without notice, the sale in their favour cannot be forfeited. The contention has no merit. The property has been purchased during the pendency of the above petition in this Court. Apart from it respondent No. 5 derived his title from respondent No.4 who could not pass a better title than which he had. We, therefore, see nor merit in the contention of respondent No.5. We will, however, make no order as to costs in the circumstances of the case. H.B.T/D-57/K Petition allowed.