1986 PLP 751 (MLD)

2. The suit related to certain land, sold by one Allah Yar in favour of the defendants‑respondents by mens of a registered sale‑deed in which the sale price was mentioned as Rs.31,

500. The plaintiff‑appellant claimed that as he was the son of the vendor but the respondents were not in any way related to him he had a right of pre‑emption against them. The respondents resisted the suit on various grounds whereupon the following issues were framed:‑ (1) Whether the suit is not maintainable as against defendant No.6 as contended in preliminary objection No.1 in the written statement? O.P. D. (2) Whether the suit is barred by limitation? O.P. D. (3) Whether the defendants have effected any improvement in the suit land? If so, when, to what extent, and to what effect? O.P.D. ` (4) Whether the plaintiff has waived his right by acquiescence? O.P.D. (5) Whether the ostensible price of Rs.31,500 has been paid in good faith or actually paid by the defendants in respect of the suit land? O.P.D. (6) If issue No.5 is not proved, what was the market price of the suit land at the time of its sale? O . P. D . (7) Whether the defendants are entitled to special costs under section 35‑A of C.P.C.? If so to what extent? O.P.D. (8) Relief.

3. Issues Nos. 1, 4 and 7 were conceded by the respondents and were, therefore, decided against them. They, however, contested the case on other issues. On issue No.5, the learned Administrative Civil Judge held that the sale price of Rs.31,500 was fixed, in good faith, and actually paid. Therefore, without deciding issue No.6 relating to the market value, he passed a decree for possession of the suit land, through pre‑emption, in favour of the plaintiff‑appellant and against the defendants‑respondents on payment of Rs.31,500 and directed them to deposit the said amount, less the 1/5th of the sale price already deposited by them, in Court on or before 14th November, 1972, failing which their suit shall be deemed to have been dismissed.

4. Feeling aggrieved by the, judgment and decree of the learned trial Court, the plaintiff‑appellant went to appeal before the learned District Judge, Rahim Yar Khan. There, it was contended by the defendants‑respondents that as the jurisdictional value of the appeal exceeded the limits of the pecuniary jurisdiction of the learned District Judge, he was not competent to hear the appeal. The plaintiff‑appellant did not concede this plea but the same was eventually upheld by the learned District Judge and by order, dated 14th July, 1973, he returned, the memorandum of appeal for presentation to the Court of competent jurisdiction. Thereafter, the plaintiff‑appellant filed the present appeal in this Court on 30th July, 1973.

5. Alongwith the appeal the appellant made Civil Miscellaneous No.292 of 1973/BWP seeking condonation of delay in .the filing of the appeal. On 26th November, 1973 appeal was admitted to regular hearing subject to all just and legal exceptions.

6. Learned counsel for the respondents has raised a preliminary objection that the appeal was time‑barred and, therefore, it should be dismissed on that ground alone. As indicated above, the judgment and decree of the trial Court is of 11th October, 1972, whereas the instant appeal was filed in this Court on 30th July, 1973, after about nine months. Obviously, it is time‑barred. As already pointed out, the appellant has made an application (Civil Miscellaneous No.292 of 1973/BWP) for condonation of delay. Learned counsel fort the appellant has submitted that the appellant filed his appeal before the learned District Judge in pursuance of a wrong advice tendered by his counsel and, therefore, the delay on the part of the appellant in coming to this Court deserves to be condoned. While raising this plea he has placed reliance on the case of Nazar Muhammad and another v. Mst. Shahzada Begum and another P L D 1974 S C 22 and Kanwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali and others A I R 1937 P C

276. In reply to this argument, learned counsel for the respondents urged that the said authorities were of no avail to the appellant because in his aforesaid application he had not stated that it was due to mistaken advice given by his counsel that he had gone before the learned District Judge instead of coming to this Court. I have carefully gone through the application for condonation of delay and find that it does not contain any mention of wrong or mistaken advice by the counsel. Learned counsel for the respondents also drew my attention to the cases of Ch. Muhammad Sharif v. Muhammad Ali Khan and others 1975 S C M R 259 and Khalid Farooq and 3 others v. Hakim Nazar Muhammad and another 1979 S C M R 52 in which delay was not condoned on the ground of erroneous advice given by the counsel of the party responsible for delay. As indicated above, in the application under consideration the appellant had not taken the plea of wrong advice by his counsel and, therefore, it is an afterthought. It is also not supported by any affidavit. Therefore, I am not inclined to accept this plea and decline to condone delay in the filing of the appeal.

7. I will, however, not stop here and would also deal with the merits of the case. Learned counsel for the appellant' has challenged the finding of the learned trial Court on issue No.5 only which relates to the payment of the sale price of Rs.31,

500. According to the respondents, they paid the aforesaid amount to the vendor, Allah Yar by means of two cheques‑one for Rs.10,000 issued on 4th June, 1969 and the other for Rs.21,500 issued on 9th June, 1969. They examined Muhammad Munir Khan D.W.2 who is an Accountant of the Bank of Bahawalpur on which the aforesaid cheques were drawn. He deposed that the sums mentioned therein were ‑actually paid to the drawee, Allah Yar. On the registered sale‑deed, Exh. D.4, by which the sale in dispute had been effected, there is also endorsement of the Sub‑Registrar showing that the sale price of Rs.31,500 was paid as aforesaid. In addition', there is statement of Noor Muhammad respondent D.W.3 to the effect that they had paid the above sale price. The evidence produced by the appellant in rebuttal consists of the statement of Allah Yar vendor P.W.3 and his own statement as P.W.2. In his statement, it was conceded by the appellant that he was not present at the time when the bargain was struck. He also did not claim his presence at the time when the sale price was paid. Therefore, his statement is of no significance. As regards Allah Yar P.W.3, no doubt he is the vendor in the transaction under consideration but he is father of the appellant (pre‑emptor). He must, therefore, be having a soft corner for the appellant. He (vendor) denied having received the sums mentioned in the aforesaid cheques but the appellant did not examine any handwriting expert to prove that the signatures purporting to have been appended by the vendor on the cheques were not actually his signatures. In view of the overwhelming oral and documentary evidence of the defendants‑respondents, therefore, the learned trial Court was perfect justified in recording a finding that the sale price of Rs.31,500 was fixed in good faith and actually paid.

8. No other plea was raised by the learned counsel for the appellant.

9. Since the appeal is time‑barred and also fails on merits, it is dismissed with costs. M. Y.H. Appeal dismissed.