2002 PLP 1664 (YLR)

It was also stated that High Court by order, dated 20‑2‑1990 allowed the plaintiff to receive the memo. of appeal by 20‑3‑1990 for tiling it before learned District Judge, yet he received the same on 18‑3‑1990 and filed the appeal on the same day. And that learned Additional District Judge, upon the consideration, condoned the delay in filing the appeal. And that at the time of dismissal of appeal, learned Additional District Judge validly exercised jurisdiction to enlarge the time for deposit of balance of the decretal amount within two months after considering all the circumstances involved in the case.

5. Having considered the arguments of the learned counsel for the parties and examined the record, I feel that it will be helpful to reproduce the relevant extracts from the impugned judgment, dated 9‑1‑1991 of learned Additional District Judge, Sialkot: "He stressed that the conduct of the appellant was bona tide in determining the valuation for purposes of court‑fee and jurisdiction but disputed the sale amount of Rs.2,87,500 and filing the appeal before Hon'ble High Court. He elucidated that the appeal was admitted for hearing by Division Bench of Hon'ble High Court was subsequently returned to the appellant for presenting it before the Court of District Judge, Sialkot. He added that the Hon'ble High Court permitted the appellant to receive back the memorandum of appeal by 20‑5‑1990 but he received it immediately and filed the appeal before the Court of District Judge on 18‑3‑1990 prior to 20‑3‑1990. The plaintiff has been vigilant in receiving the memorandum of appeal from the High Court and presenting it before this Court. He deposited Rs.1,77,000 as directed by the Hon'ble High Court. He has since acted in bona fide, the delay caused in filing of appeal before this Court is liable to be condoned under section 5 read with section 14 of Limitation Act. Accordingly, the delay is condoned. In result, the appeal fails and is hereby dismissed. A sum of Rs.1,77,000 deposited by the plaintiff/appellant towards sale consideration of the land under order of the Hon'ble High Court, consumed in purchase of Defence Saving Certificates alongwith. profits will be released to the defendant respondents. The remaining sale consideration of Rs.2,87,500 will be deposited by the appellant within period of two months, failing which his suit shall stand , dismissed. On deposit, this amount will also be released to the defendants."

6. The sole point of controversy urged in this second appeal is as to whether First Appellate Court was competent to grant or extend the period for deposit of the sale price or balance thereof by the successful pre emptor upon dismissal of' his appeal. This in fact has ceased to be a question of moot and law thereto has been settled by the Hon'ble Supreme Court of Pakistan in the case, of "Muhammad Nawaz and others v. Muhammad Sadiq" (1995 SCMR 105). The Hon'ble Supreme Court of Pakistan in its elaborate and educative judgment considering the entire law and precedents on the subject, defined scope of "Court's judicial discretion and power" under section 148 of the Civil Procedure Code to enlarge time by holding as under:‑‑ "From the above‑referred case, inter alia, it is evident that the consistent view of this Court is that an appellate Court is competent to extend time for deposit of the pre emption money either during the pendency of an appeal before it or at the time of disposing of the same notwithstanding that the time mentioned in the pre‑emption decree for the said purposes may have expired. Furthermore, an appellate Court may extend time for the above purpose at the stage when an appeal is not admitted for regular hearing by it or a petition for leave to appeal is not granted and such an extension of time will not be nullified by the factum that the appeal or the petition for leave to appeal is subsequently dismissed summarily. However neither a trial Court nor an appellate Court can extend time for deposit of pre‑emption money once the matter stands disposed of and it is no longer pending before it. In such an event, the direction contained in the original decree to the effect that in case of failure to deposit the pre emption money the suit shall stand dismissed, become effective However, the above rule seems to be subject to one exception namely that if an appellate Court varies the finding of the Court below on the quantum of the pre‑emption money, in other words it either increases or reduces the same, in that event it should fix fresh reasonable time for deposit of the pre‑emption money and in the absence of any such fixation. the pre‑emptor may deposit the same within reasonable time as has been held by Cornelius. C.J. and Hamoodur Rahman, J., in the case of Shah Wali v. Ghulam Din alias Gaman and another (supra). It is also evident from the above reports that an appellate Court is not bound to grant extension of time in every case. The conduct on the part of a pre‑emptor today, disentitle him from pressing into service exercise of the above discretionary power by an appellate Court in his favour. It may be observed that it is difficult to categorize all the cases in which a pre‑emptor will not be entitled to seek exercise of the above discretionary power in his favour by an appellate Court. It will depend on the facts of each case. If the sole object of a pre‑emptor in filing of an appeal is to delay deposit of the pre emption money, about the correctness of which, there cannot be any reasonable doubt, to a reasonable man, in such a case an appellate Court may decline to extend the time. It may be stated that the view taken in the above cases has been reiterated by this Court inter alia in the case of Hakim Ali and another v. Iftikhar Ahmed Khan (1990 SCMR 1571) and in the case of Muhammad Irshad v. Ch. Fazal Haq and 5 others (1991 SCMR 2149)."

7. Agreeing with the rule pronounced as above regarding appellate Court's power to extend time for deposit of pre‑emption amount during appeal or upon its dismissal, his Lordship Mr. Justice Fazal Karim (as he then was) rendered a dissenting judgment on the entitlement of appellant/pre‑emptor's discretion in his favour by an appellate Court and opined that "phenomenal increase in the price" of land in Islamabad and non‑payment of meagre pre‑emption money by the pre emptor within the available time, were grounds to refuse discretion of extension of time by the appellate Court to the appellant pre‑emptor.

8. The concept of "discretion" was lucidly defined in para. 5 of the dissenting judgment as under: "The very concept of 'discretion' means a right to choose between more than one possible course of action, 'Secretary v.' Tameside' B.C. (1977 AC 1014, 1064, 1065), Judicial discretion' means the power the law gives the Judge to choose among several alternatives, each of them being lawful. (See 'Judicial. Discretion' by Aharon Barak, P.7). As was said in a recent case decided by the House of Lords of England, Mac Shannon v. Rockware Class (1978) 1 All E.R. 625, 631, 632, when the question is of the application of judicial discretion to the facts of the particular case, the Judge in his consideration of the facts should not wear blinkers and that if justice is to be seen to be done, the discretion which will fall to be exercised by different Judges in different cases must manifest a reasonable consistency between one case and another'." It was further observed in para. 7 that: I respectfully agree with my learned brother, Ajmal Mian, J., that it is difficult to categorize all the cases in which a pre‑emptor will not be entitled to seek exercise of the above discretionary power in his favour by an appellate Court. It will depend on the facts of each case. But decided cases provide sufficient guidance as to the matters which entitle a party to the exercise of judicial discretion in his favour and matters which disentitle him:"

9. After discussing the principles laid down in‑precedent cases for exercise of discretion, the learned dissenting Judge, for the reasons above stated, recorded that in the said case before the Hon'ble Supreme Court of Pakistan, enlargement of time should not have been granted by the appellate Court to the pre‑emptor in absence of good reasons thereto.

10. In the present case, the conduct and entitlement of respondent No.1 to the exercise of discretion by the appellate Court in his favour granting extension of time for deposit of the balance of decretal amount, was neither raised in the appeal nor urged at the bar. As such, this question is not involved in the case in hand. Grounds of appeal, however, show that petitioners' conduct in delayed filing of appeal and grant of condonation by the learned Appellate Court was objected to by the petitioners and this ground cannot be taken to be relevant in the context of exercise of grant/extension of time by the appellant Court for deposit of money. As to grant of condonation, the above quoted extract from the impugned judgment shows that the learned appellate Court validly exercised jurisdiction in condoning the delay, in filing the appeal after return of the memo. of appeal by the High Court on 18‑3‑1990. Appellate vigilantly filed appeal before the learned District Judge on the same day i.e 18‑3‑1990. As such, there was no ground to refuse exclusion of time under section 14 of the Limitation Act in filing the said appeal before the learned District Judge.

11. In view of the settled position of law, it is held that learned Additional District Judge properly exercised powers vesting in appellate Court in granting two months' time to respondent No.1 /pre‑emptor for depositing the balance of the sale consideration of Rs.2,87,500 in terms of penultimate para. of the impugned judgment, dated 9‑1‑1991. This appeal is, therefore, dismissed for being without merits. There shall, however, be no order as to costs. Appeal dismissed. Q.M.H./M.A.K./S‑444/C