1999 PLP 342 (SCMR)

ABDUR REHMAN KHAN, J.

This judgment will dispose of the above two appeals as in both judgments delivered on 8-2-1992 by a learned Judge in the High Court in Regular Second Appeal, has been challenged.

2. Abdulllah, appellant in Civil Appeal No.178 of 1993, in a single suit pre-empted the sale mutations bearing No. 95 and 96, both sanctioned on 30-4-1973, as by mutation No.95 an area of 613 Kanal 11 Marlas and through Mutation No. 96 an area of 100 Kanal I Marla had been purchased by Nazir Ahmad and Rafiq Ahmad appellants in Civil Appeal No.157 of 1993, During the proceedings in the trial Court at Multan an order was made on 30-4-19974 directing the pre-emptor to deposit Rs.2,000 as 1/5th of the pre-emption amount in the Court before 6-6-1974. This order was complied within time. It appears that the case was then transferred for trial before Civil Judge, Shuja Abad who noticed that the deposit of 1/5th has been ordered only in respect of Mutation No.96 giving Rs.10,000 as sale price and that no such order has been made regarding the transaction covered by Mutation No., 95, The said Court, therefore, by order dated 30-7-1974 directed the plaintiff to deposit Rs.12,200 as 1/5th of the price shown in Mutation No.95 before 2-7-1974. This order was obeyed in time. At the conclusion of the trial on 18-5-1981 while decreeing the suit of the plaintiff on payment of Rs.71,200 the learned trial Judge directed the plaintiff as under: -- Plaintiff deposited Rs.56,960 on 9-6,1981 i.e. 11 days before the target date. During the execution proceedings it was felt that the plaintiff had made default by Rs.40 in deposit of total pre-emption money as he was required to deposit total Rs.71,200 but instead he had deposited Rs.71,160 which fell short by Rs.40. As under he judgment of the trial Judge dated 18-5-1981 the suit stood dismissed, therefore the plaintiff approached the Appellate Court for revival of the decree of the trial Court and for allowing him to make up the deficiency of Rs.40 in the deposit of the pre-emption money, His appeal was dismissed and, therefore, he impugned the judgment and decree of the Appellate Court in second appeal in the It High Court It was held by the High Court that the pre-emption decree in respect of sale covered by Mutation No.95 for the area of 613 Kanals 11 Marlas is valid and executable as the sale of this area was made for an amount of Rs.61,200 whereas the plaintiff has deposited Rs.71,1604 However, the decree passed by the trial Court in respect of sale by Mutation No.96 was declared as ineffective and inexecutable. The relevant portion of the High Court judgment is reproduced:-- "The appellant admittedly deposited an amount of Rs.71,

160. The sale of land measuring 613 Kanals, 11 Marlas through Mutation No.96 was made for an amount of Rs.61,200 therefore, regarding the said sale it could not be said that the amount deposited by the appellant was deficient, therefore, there was no reason to treat the suit of pre-emption to have stood dismissed, on account of any default. The decree passed by the learned trial Court for pre-emption of sale of land measuring 613 Kanals, 11 Marlas is still intact and can be executed by the appellant. 'Regarding the other suit for pre-emption the land measuring 100 Kanals, 1 Marla through Mutation No.96, it can safely be held that the same could be deemed to have been dismissed as the full amount of price as ordered by the Court was not deposited which was deficient to, the extent of Rs.40. Appeal No. 157 of 1993 has, therefore, been filed by the defendant/vendee with a prayer that the judgment of the High Court should be reversed regarding Sale Mutation No.95 and, accordingly, the suit of the plaintiff be dismissed in toto, while plaintiff/appellant has assailed the legality of the judgment to the extent of dismissal of his suit in respect of the sale through Mutation No.96 and it is prayed that the suit should be decreed in its entirety.

3. Learned counsel for the appellant in Appeal. No.157/93 argued that no plausible explanation has been offered for failure to deposit the pre-emption money in time and that the learned High Court has legally erred in decreeing the suit in respect of Mutation No.95. He also submitted that the appeal before the District Judge was time-barred and on this count too the High Court should have refused interference in second appeal. He referred to the following cases to support his view-point:

PLD 196 Lahore 1208, PLD 1966 SC 983, PLD 1976 Lahore 1, and PLD 1985 SC 393.

4. Learned counsel for the appellant in Appeal No. 178 of 1993 submitted that the appellant had not intentionally defaulted in deposit of pre-emption money but was misled in this respect by wrong calculation of the amount by the trial Court. He also pointed out that no cross-objection was filed in respect of the appeal being time-barred in the High Court nor this point was pressed there. Therefore, this objection cannot be agitated at this stage.

5. The crucial point in the case is as to whether, the plaintiff/appellant intentionally failed to comply with the deposit order or whether there was some plausible and valid reason which resulted in his failure to deposit Rs.40 less than that he was required to do. It is borne out from the above narration of facts that at the first instance he deposited Rs.2,000 and then Rs.12,200 according to direction of the Court well within time. Similarly, in obedience to the final order the plaintiff deposited Rs.56,960 much before the fixed date. The mistake occurred when the case was sent from Multan to Shuja Abad where the learned Judge noticed that 1/5th amount of the sale price mentioned in Mutation No.95 has not been deposited; so by order, dated 30-7-1974 he directed the plaintiff to deposit 1/5th of the sale price amounting to Rs.12,200 before 2-10-1974. The learned Judge mistook the sale price mentioned in the said mutation as Rs.61,000 instead of Rs.61,200 and by this inadvertent mistake calculated 1/5th as Rs.12,200 instead of Rs.12,

240. This short fall of Rs.40, thus, resulted because the learned Judge miscalculated Zar-e-Panjum and for that reason wrote Rs.12,200 in the order-sheet to be deposited before the given date. So, it is to be seen as to whether it is inflexible rule of universal application that deficiency in deposit of pre-emption money which occurred because of miscalculation or through other error made by the Court is not excusable at all or it can be condoned on the principle that no one should suffer because of any error of the Court or because neither the mistake was wilful nor it was on account of any fault of the person concerned. It -was ruled in Bhai Khan v. Allah Bakhsh and another (1986 SCMR 849): "Order XX, Rule 14--pre-emption suit--Extension of time for deposit of pre-emption amount--Appellate Court, held, could extend time for deposit of pre-emption amount both during pendency of appeal before it as well as when it dismisses appeal--Appellate Court, however, will exercise such power in fit and suitable cases and could also refuse to exercise discretion in exceptional cases". It was also laid down in Said Alam Shah through his L.Rs. v. Mst Jana and others (PLD 1991 SC 360): "All the words in these expressions lead to a single basic supposition therein that the Court will specify the total purchase-money which has to be paid as total price and that mere specifying the rate per Marla of the land or other measure of parcel of land, would not be enough to satisfy the requirement of law. This perhaps also was the view of the High Court because had it been not so the High Court would not have observed that the appellant could have made an application for the correction by the Court which decreed the suit. If it was the subject-matter of correction by the Court it implies that the Court was required to do it. If so, the next question arises: whether the Court was required to do so or to act rightly only on the application of a party and not as its own original duty. In these circumstances the answer must be that it was the duty of the Court to specify the total purchase-money. That being so, the next question would be if the Court itself was at fault in not performing its duty; whether, this could be made a ground for punishing the decree-holder, the answer must be in the negative. Accordingly, there being no fault of the appellant in taking time for trying to ascertain the exact amount, the District Court was not justified in depriving him of the benefit of the decree. The principle laid down in the case of Siddique Khan's case PLD 1984 SC 289 on the question of specification and payment of court-fee in so far as it can be attracted to situation like the and in this case also helps the appellant". It was observed in Malik Hadayat Ullah and 2 others v. Murad Ali Khan (PLD 1972 SC 69) "Held: The Court was competent suo motu to extend the time when it had by its own act made it practically impossible for the appellants to comply with its original order by adjourning the application for furnishing security to the 6th of January, 1968. From the language of subsections (4) and (5) (b) of section 22 it is apparent 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, mean 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 under subsection (4) of section 22 extend time, then it could do so either on the application, written or oral, of a patty or even suo motu where the justice of the cause so demanded". The rule laid down in Johri Singh v. Sukh Pal Singh and others (AIR 1989 SC 2073) is also helpful in this respect as it explains legal position in case of inadvertent error. It says: "In the cases, of non-deposit of only a relatively small fraction of the purchase money due to inadvertent mistake whether or not caused by any action of the Court, the Court has the discretion under section 148, C.P.C. to extend the time even though the time fixed in pre-emption decree has already expired provided it is satisfied that the mistake is bona fide and was not indicative of negligence or inaction. The Court will extend the time when it finds that the mistake was the result of, or induced by, an action of the Court applying the maxim 'actus curiae neminem gravabit' an act of the Court shall prejudice no man". Section 148 and Order XLI, rule 33, C.P.C., can also be availed of to remedy such unintentional error as the terms of these two provisions are of the widest amplitude to enable the competent Court to pass decree according to justice of the case and to adjust claim, rights and liabilities of the parties to the litigation in accordance with equity, justice, good conscience and fair play. The judgments reported as PLD 1976 Lahore 1, PLD 1967 Lahore 1.260 and PLD' 1985 SC 393 relied on by the learned counsel in Appeal No.157 of 1.993 relate to jurisdictional value and evaluation of court-fee etc. are, therefore, not relevant. PLD 1966 SC 983 proceeds on distinct facts. It is distinguishable on the ground that in the present case no objection to the competency of appeal before the District Judge or before the High Court was taken and all along no other question except that of the default in deposit of pre-emption money was agitated. Therefore, keeping in view the principle of estoppel the appellant cannot be allowed to raise such an objection at this belated stage.

6. We are, therefore, of the view that the failure of the plaintiff/appellant in deposit of pre-emption money was not intentional and it happened because of the error of the learned trial Judge in calculating the amount as explained above. In the circumstances of this case the plaintiff is entitled to the extension of time under sections 148, 151 and Order XLI, rule 33 of the Civil Procedure Code. Therefore, Appeal No.178 of 1993 filed by the plaintiff/appellant is accepted and his suit for the entire disputed property covered by Mutations Nos.95 and 96 both attested on 30-4-1973 is decreed in his favour. He is directed to make up the short fall of Rs.40 within two months from the date of announcement of this judgment; otherwise, his suit would automatically stand dismissed. Appeal. No. 157 of 1993 filed by the appellants/vendees is dismissed. Parties in both the appeals would bear their own costs. M.B.A./N-41/S Order accordingly.