1983 PLP 1705 (CLC)

ABDUL SHAKURUL SALAM, J.‑This Regular First Appeal is directed against the judgment and decree of Mr. Sardar Mumtaz Afzal, Civil Judge, 1st Class, Wazirabad dated 3rd January, 1983. It has been arisen in the following circumstances.

2. One Nusrat Ali son of Khushi Muhammad entered into an agree ment to sell land measuring 109 kanals 18 marlas situated in village Adilgarb, Tehsil Wazirabad, District Gujranwala for a sum of Rs. 3,35,000 in favour, of Shakila Jamil wife of Dr. Muhammad Jamil. The agreement was produced before the Sub‑Registrar for registration who recorded that the vendor has received earnest money of Rs. 1,35,000 in his presence. The agreement was registered on 3rd December, 1979 and is Exh. D.

1. It was followed by a sale‑deed produced before the Sub‑Registrar who recorded that the vendor has received the balance of sale price, Rs. 2,00,000 in his presence. The sale‑deed was registered on 24th May, 1980 and is Exh. D. 2.

3. Vendor's brother Muhammad Sadiq and sister Kausar Sultana as plaintiffs Nos. 1 and 2 and his nephews Sohail Sadiq, Wasim Sadiq and Naeem Sadiq as plaintiffs Nos. 3 to, 5, filed a suit for possession by way of pre‑emption claiming superior right being the legal heirs of the vendor. It was averred that the land was sold for Rs. 1,75.000 but inflated price of Rs. 3,35,000 was recorded in the sale‑deed to defeat the plaintiff's right. After registration of the suit, the plaintiffs were directed to deposit 1/5th of the pre‑emption money Rs. 67,000 by 1st July, 1981. It was accordingly done. The suit was resisted by the vendee‑defendant and on the pleadings of the parties, the learned trial Court framed the following issues (1) Whether Mst. Kausar Sultana has not signed the plaint ? If so, what is its effect ? O.P.D. (2) Whether the suit is for partial pre‑emption ? O. P. Ds (3) Whether the plaintiffs are estopped by their words and conduct to bring the suit ? O.P.D. (4) Whether the suit‑ is under valued for the purposes of court‑fees and jurisdiction ? 1f so, what is the correct valuation and what i its effect ? O. P. D. (5) Whether the plaintiffs have got superior right of pre‑emption qua the vendee ? O. P. D. (6) Whether a sum of Rs. 3,35,000 were fixed in good faith as sale price of the suit land actually paid ? O. P. D. vendee. (7) If issue No. 6 is not proved in affirmative then what was the market value of the suit land at the time of the sale ? O. P. Parties. (8) Whether the defendant‑vendee paid Rs. 25,000 for the tube‑well ? If so, what is its effect upon the suit ? O.P.D. (9) Whether the defendant‑vendee is entitled to any cost incurred in connection with registration of the sale deed etc. O. P. D. (10) Relief."

4. On 3rd May, 1982 counsel for the plaintiffs produced copies of Register Haqdaran for the year 1976‑77 Ehs. P. 2 and P. 4 and of Shajra Nasab Exh. P. 3 and stated that except for the statement of the plaintiff affirmative evidence is closed. Plaintiff's statement will be got recorded in support and rebuttal in one go. The vendee‑defendant, then examined five witnesses. D. W. 1 Abdul Khaliq deposed that Muhammad Sadiq pre emptor was his real brother and Kausar Sultana plaintiff No. 2 his sister. Plaintiffs 3 to 5 are the sons of the plaintiff No.

1. He has arranged the sale. The sale price was Rs. 3,35,000, Rs. 1,35,000 were paid as earnest money before the Registrar and also the balance of Rs. 2,00,

000. The vendee pur chased the tube‑well on the land separately for Rs, 25,000 and also incurred the expenses of registration stamps etc. Muhammad Arshad, Araiz Nawies appeared as D. W. 2 to depose about writing the deeds Exh. D. 1 and

2. Mst. Meena Raoof D. W. 3 is an attesting witness of Exh. D.

2. D. W. 4 Abdul Raoof. deposed that he struck the bargain for his sister the vendee. About the purchase of tube‑well from Liaqat Ali he said that the former was alive but was out of the country. Mst. Shakila Jamil the vendee appeared as D. W. 5 and supported her case. The counsel for the defen dant closed the evidence. The case was thereafter adjourned to 26th June, 1982 for evidence of the plaintiffs. Service was not effected on the three summoned witnesses. Summons were delivered to the plaintiff for service under Order XVI, rule 7‑A on his own responsibility for 15th July, 1982. For the next six hearing, no witness was produced by the plaintiffs. On 1st November, 1982 nobody appeared for plaintiffs ‑Nos. 2 and

3. Learned trial Court ordered ex parte proceedings against them. On the request of Muhammad Sadiq, plaintiff that the case be adjourned for two months and he will produce his own witness, the case was accordingly adjourned to 2nd January, 1983. On this date, no evidence having been produced by the plaintiff No. 1, nor, he himself being present, his evidence was closed under Order XVII, rule 3, C. P. C. by the learned trial Court. In view of the finding that the plaintiffs had superior right of pre‑emption, the learned trial Court decreed the suit of plaintiffs 1, 4 and 5 on payment of the sale price plus the price of the tubewell amounting to Rs. 25,000 and the expenses incurred amounting Rs. 25,125 all told Rs. 3,85,

125. The suit of the plaintiff's Nos. 2 and 3 who had been proceeded ex parte on 1st November, 1982 was dismissed. Plaintiffs Nos. 1, 4 and 5 were directed "to deposit the decretal amount by 3rd February, 1983 failing which their suits shall be deemed to have been dismissed with costs". This is vide judgment and decree of the learned Civil Judge, ist Class, Wazirabad, dated 3rd January, 1983.

5. Plaintiffs Nos. 1, 2, 4 and 5 filed Regular First Appeal impleading plaintiff No. 3 as respondent No. 2 because he was said to be not available.

6. Alongwith the R. F. A. miscellaneous application bearing C. M. No. 365‑C/83 was filed praying that a stay order with regard to the deposit of the decretal amount may kindly be granted till the disposal of the above titled appeal. The learned Judges dealing with it passed the following order on 24th January, 1983. "There is no justification for allowing this petition as no irreparable loss will be caused to the appellant if the amount is deposited. The learned counsel has also prayed for extension of time, but this request also cannot be granted as he still has a period upto 3rd February, 1983 for making the deposit. The Civil Miscellaneous petition is dismissed." Against this order, the appellants filed Civil Petition No. 97 of 1983 before the learned Supreme Court. It came up in Chamber in connection with the application for interim relief before a learned Judge of the Supreme Court on 2nd February, 1983 who was pleased to pass the following order : "Learned counsel submits that the purchase price according to the petitioners was Rs. 1,75,000 whereas the price determined in the decree is Rs. 3,85,

000. Let the petitioners deposit Rs. 1,75,000 and furnish security for the remaining amount." When the petition came up for hearing, before the learned Supreme Court on 2nd March, 1983 it was observed as follows : "In support of the petition for leave to appeal the petitioner's learned counsel has submitted before us that the Regular First Appeal having been admitted by the High Court, wherein the question of the correct. ness of the price of the land as determined by the trial Court has been questioned, the refusal of the stay order during the pendency of the appeal will amount to depriving the petitioners of the right to question the correctness of the amount payable by the trial Court. In support of this submission reliance has been placed on Samanda v. Muhammad Sharif P L D 1966 Lah.

414. There may have been some force in the submission but is of no avail in view of the fact that the petitioners who were allowed by this Court to deposit the amount which even according to them was paid by‑ the vendee, namely, Rs. 1,75,000 and to furnish security for the remain ing amount have not complied with this order. This fact was pointed out to us by respondent No. 1 and Mr. Aitazaz Ahsan learned counsel for the petitioners was unable to controvert it. According to respondent No. 1, petitioner No. 1 Muhammad Sadiq, who was the brother of the vendor Nusrat Ali was the person who had persuaded her to buy the land and now that the family had received the price of the land they had filed this pre‑emption suit to also retain the land without returning their money. It is clear from the conduct of the petitioners that they are not interested in paying the sale price of the land within any reasonable time and appear to be interested only to keep the matter lingering, which is evident from the fact that they have even failed to deposit Rs. 1,75,000 which even according to them, was the real price of the land, as allowed by this Court. It is true that by the refusal of the stay the suit of the petitioners shall stand dismissed, but they themselves are only to blame for this situation. This Court, by its order dated 2nd February, 1983 had allowed them an opportunity to save their suit by depositing the admitted sale price of the land and furnishing security for the remain ing amount. Their conduct in not availing of this facility tends to support the submission of respondent No. 1 that the petitioners are not interested in paying the sale price of the land but merely wish to keep the matter lingering. We cannot encourage them in such an enterprise. This petition is, accordingly, dismissed.

7. On 12th,April, 1983 C. M. No. 2007‑CJ83 was filed on behalf of respondent No. 2 in the appeal to be transposed as an appellant. Notice was given of this application to the parties. Learned counsel appearing for the vendee‑respondent has submitted that the application is barred by time because the decree is dated 3rd January, 1983 and the application has been filed on 12th April, 1983 and since the applicant has not filed the appeal within time against the respondent, request for his being transposed as an appellant is out of time. He relied on Gul Muhammad etc. v. Mir Zaman and another (P L D 1954 Lah. 406). In reply to this, the learned counsel for the appellant has submitted that in case of transposition of one party from one side to the other, question of limitation does not arise. He placed reliance on Krishnabai w/o Bapuji Bari and others v. Mst. Parvati Bai widow of Dr. Shankar Pandurang Gogte and others (A I R 1944 Nag. 298). In support of the applica tion for transposition, it is stated that the appellant had gone, during the pendency of the suit, abroad and had returned to Pakistan only recently and since he has already been impleaded as pro forma respondent in the appeal by the other appellants, he may be transposed at his proper place of being an appellant. In the circumstances of the case no real prejudice is likely to be caused to the respondent as there are already other appellants equally qualified arrayed against the respondent to oust her. We deem it in the fitness of thing and in interest of justice that the applicant is transposed. We order accordingly. Costs shall abide by the final result.

8. On coming to the merits of the appeal, the learned counsel for the appellant vehemently contended that the evidence of the appellants was wrongly closed under Order XVII, rule 3, C. P. C. on 2nd January, 1983 because the appellant No. 1 had although taken two months time on Ist November, 1982 to produce his own evidence yet had filed an application on 4th December, 1982 saying that the witnesses had refused to appear until they were summoned by the Court and, therefore, a request was made that the witnesses be summoned through Court. Learned trial Court passed an order presumably on 9th December, 1982 (page 143 of the trial Court file) that they appellant may take the summons but the responsibility under Order XVI, rule 7, C. P. C. will remain his own. The appellant took the summons to the two witnesses, namely, Nusrat Ali and Muhammad Amin but they could not be served as the former was stated to have gone to Karachi and the latter was stated to be on leave (pages 215 and 217 of the file). In these circum stances, the learned counsel for the appellants submits that the closing of the evidence of the appellants was illegal. The appellant No. I was not even given opportunity to make his own statement. Learned counsel relied on Mst. Bashir Bibi v. Aminuddin and 9 others (P L D 1973 S C 45), Abdul Rashid and 10 others v. Maj. Zia‑ul‑Hasan and another (1982 C L C 239) and Muhammad Sadly v. Walayat Khan and others (P L D 1983 Azad J & K 7). Learned counsel for the respondent has submitted that the appellants were trying to just linger on the litigation as has been observed by the learned Supreme Court. We have gone through the file. The appellants have, on 1st November, 1982 obtained two months time to produce their own evidence. When the case came up for hearing after two months on 2nd January, 1983 not only no evidence was produced but the appellant No. 1 was not even present. This shows complete indifference to one's own commitment and to the order of the Court Moreover, the two witnesses sought to be summoned, namely, Nusrat Ali and Muhammad Amin, as stated by the learned counsel for the appellants, were to speak about the sale .price. Now the first witness is the vendor and the second is a stranger. We do not see how these two witnesses by oral testimony could detract from the documentary evidence about the sale price which had been paid before the Sub‑Registrar. Appellant No. 1 cannot complain justifiably that his statement was not recorded because he himself was not present on the date of hearing. We find no justification to prolong the litigation by remanding the case for recording the aforesaid evidence as urged by the learned counsel for the appellants. Learned counsel for the respondent appears to be right that the appellants are just lingering the litigation as observed by the learned Supreme Court. Therefore we come to the con clusion that the order of the learned trial Court closing the evidence of the appellants calls for no interference in the circumstances of the case. The second point urged by the learned counsel for the appellants was that plain tiffs Nos. 2 and 3 were proceeded ex parte on Ist November, 1982 which shows total lack of understanding of the Code of Civil Procedure because there is no question of proceeding ex parte against the plaintiffs. At best, the suit of the plaintiffs could be dismissed. The learned counsel is quit right on the point. The learned trial Court had recorded on Ist November, 1982 that none was present on behalf of plaintiffs Nos. 2 and

3. Ex parte C proceedings are taken against them. Their suit should have, in fact, been dismissed for default. The use of inapt language however cannot affect the ultimate judgment and decree. Thirdly, the learned counsel for the appel lants contended that the sale price of Rs. 3,35,000 was too much exaggerated. The land had, in fact, been sold for Rs. 1,75,

000. The land in question measures 109 kanals 18 marlas. It is situated in Tehsil Wazirabad, District Gujranwala. The sale price comes to‑just over Rs 3,000 per kanal. The earnest money Rs. 1,35,000 as well as the balance of sale price Rs. 2,00,000 were both paid before the Sub‑Registrar. The oral evidence produced by the vendee‑defendant respondent supports the aforesaid payments. The plaintiff appellants have produced no evidence to the contrary. In the circumstances, we find that there is no substance in the contention. Learned counsel for the appellants, fourthly, submitted that the price of the tube‑well could not have been added towards the sale price. The factum of the tube‑well on the site , is not disputed by the appellants nor that it was not sold under the registered sale‑deed. Since it was there and formed part of the improvement of the land and paid for, its price was rightly allowed. As regards the last contention tat the expenses in the form of registration, fee, counsel fee and stamps etc. could not have been added to the sale price. it has obviously no force for the reason that all these amounts were paid by' the vendee and if the pre‑emptor wanted to get into the shoes of the vendee, he had to pay what the vendee had done. Therefore, there is no force in this contention either.

9. The aforesaid arguments have not been dealt with on the premise that the appellants were entitled to a hearing and decision on the merits of the appeal: However, a point arises as to whether the appeal survives for judgment. The appellants were granted decree "to deposit decretal amount by 3rd February, 1983 failing which there suit shall be deemed to have been dismissed with costs". The appellants challenged the decree by means of the aforementioned appeal and asked for stay with regard to the deposit of the decretal amount. The application was rejected and so also the prayer for extension of the time vide order of the learned Division Bench of the High Court dated 24th January, 1983. This order was challenged in the Supreme Court through Civil Petition No. 97/83. Stay was prayed for. This matter came up before a learned Single Judge of the Supreme Court in Chambers on 2nd February,.1983 who was pleased to allow the appellants to deposit what they said to be the sale price Rs. 1,75,000 and to furnish security for ; the remaining decretal amount. The order was not complied with. When the petition came up for hearing before the learned Supreme Court, it was . argued on behalf of the appellants that "the refusal of the stay during the pendency of the appeal will amount to depriving the peti tioners of the right to question the correctness of the amount payable by the trial Court". It was observed by the, learned Supreme Court disposing of the petition that "there may have been some force in this submission but is of no avail in view of the fact that the petitioners who were allowed by this Court to deposit the amount which even according to them was paid by vendee, namely' Rs. 1,75;000 and to furnish security for the remaining amount. have not complied with this order". It was further observed that "it is true that by the refusal of the stay the suit of the petitioners shall stand dismissed, but they themselves are only to blame for this situation". The contention' of the learned counsel 'for the contesting respondent is that the word "suit' includes appeal. (refer to Murad Ahmad and 5 others v. Bashir Ahmad (P L D 1973 Lah. 481). Therefore, when the learned Supreme Court observed that the suit shall stand dismissed, that will include the appeal as well. In reply, the learned counsel for the appellants submitted that the non deposit of the decretal amount, the appellants will not lose their right of appeal questioning the judgment and decree of the trial Court in all matters, including the matter. regarding the correctness of the sale price, or the time allowed for deposit of .the decretal amount. He placed reliance on Thakur Pas and others v. Tulsi Pas (70 P R (1890)), Samanda v. Muhammad Sharif and others (P L D 1966 Lah. 414), Shah Wali v. Ghulam Din alias Gaman and another, (P L D 1966 S C 983) and Murad Ahmad and 5 others v. Bashir Ahmad (P L D 1973 Lah. 481). No doubt, it is laid down in the aforequoted judgments that by non‑deposit of the decretal amount in a pre‑emption suit, the right of the successful pre‑emptor to file an appeal is not lost. He may not deposit the decretal amount and take a chance to succeed on appeal in getting the whole judgment and decree of the trial Court set aside but that is a risk which he takes at his peril because if the, appeal fails, he cannot insist before the appellate Court that he must be granted fresh time to deposit the decretal amount. It will be for the appellate Court to determine as to whether there were circumstances Justifying non‑deposit and grant of fresh time on the disposal of the appeal. But the' question involved in this appeal is as to what is to happen when an appel lant files an appeal and asks the appellate Court to stay the deposit of the decretal amount and the stay is declined ? Order XX, rule 14 of the First Schedule to that C: P. C. provides in sub‑rule (1) as follows : "Where the Court decrees a claim to pre‑emption in respect of a parti cular sale of property and the purchase‑money has not been, paid into Court, the decree shall :‑‑ (a) specify a day on or before which the purchase‑money shall be so paid, and (b) direct that on payment into Court of such purchase‑money together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver posses sion of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase‑money and the costs (if any) are not so paid, the suit shall be dismissed with costs." Order XLI, rule 5, C: P. C. as follows : "An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree ; but the Appellate Court may for sufficient cause order stay of execution of such decree" These two provisions read together require that while decreeing a pre‑emption suit it shall be provided that the sale price shall be paid by such and such date and if that is not done the suit shall stand dismissed. It will be so notwithstanding the filing of an appeal. However, as appellate Court may stay the operation of the decree or deposit of the decretal amount. If it does not do so. it will logically follow that the decree shall have its course and for non‑deposit of decretal amount, the suit shall stand dismissed in accordance with the decree itself. It was argued however that let the suit stand dismissed, but the appeal be heard as if it is against the decree of dismissal of the suit. If the appeal is accepted, time shall have to be given for deposit of the decretal amount. If it fails, still reasonable time should be given per judgment, of the Supreme Court Shah Wall v. Ghulam Din alias Gaman and another. If this reasoning be correct, the aforequoted statutory provisions would come to naught and be rendered redundant. It will be then useless for a trial Court to specify a date within which the decretal amount is to be paid in the pre‑emption suit and useless for an appellant to ask the appellate 'Court to stay the operation of the decree or extend time during the pendency of the appeal, or, for the appellate Court to determine the matter. There must be some flaw somewhere. Interpretation cannot be such. The catch seems to be that either the appeal is not treated as an extension of the suit and with the dismissal of the suit or knocking out of the bottom, the appeal is not deemed to fail and fall to the ground. Or, tile conduct of the successful pre‑emptor is not being taken into account‑that he comes to Court, is granted decree and time to pay for the property. He does not pay. Goes to appellate Court and asks for stay or time. Request is rejected. Nonetheless, he does not pay. Should he not be told that he will not be heard in support of his appeal for his contumacy and non‑compliance of the orders of the trial as well as the appellate Court ? In the present case, the appellants asked for time from the Supreme Court, as well. Their request was acceded to the extent of their own admission about the price of the property and were ordered to deposit that and furnish security for the rest. They did not care to abide by the concession and direction of the learned Supreme Court either. Should a litigant who is granted relief and defies compliance of the orders of the Courts from the first to the last be not told that, sorry, for your own conduct you have lost what you were granted ? . The decree for non compliance of the condition will lead to its own end in the dismissal of the suit and the appeal being only its continuation will come to the same end. This will be in accordance with the application of the letter and spirit of the statutory provisions and in accordance with the due administration of law.

10. In view of what has been stated above, the Regular First Appeal fails and is dismissed with costs throughout. M. A. K. Appeal dismissed.