1984 PLP 348 (SCMR)

SHAFIUR RAHMAN, J.‑Leave to appeal was granted to the defendants vendees to examine whether the pre‑ emptor‑decree‑holder's first appeal, pending m the High Court against the price of the land could survive their non‑compliance with the terms of the decree under appeal entailing dismissal of their suit itself. On the 10th of April, 1973, by a registered deed the appellants purchased the suit land measuring 1026 Kanals 4 Marlas in Mauza Shaman, Tehsil Mailsi District Vehari. The sale was pre‑empted by the respondents‑plaintiffs. Though the sale had taken place on an ostensible price of Rs. 4,00,000 (four lacs) the plaintiffs‑respondents sought to pre‑empt it on payment of Rs. 1,25,000, only. The suit was contested and on 6th of March, 1978, the plaintiffs' suit was decreed on payment of Rs. 4,00,

000. It was also ordered in the sane judgment and decree that if the plaintiffs failed to pay or deposit in Court Rs. 4,00,000 towards the price of the land by 6th of May, 1978, their suit would be dismissed. The pre‑emptors‑plaintiffs filed an appeal on 25th of April, 1979, and alongwith that they filed an application (Criminal Miscellaneous No. 2409/C of 1978) claiming suspension of the order of the trial Court whereby they were required to deposit by 6th of May, 1978, a sum of Rs. 4,00,000 failing which their suit was to stand dismissed. On the 26th of April, 1978, this first appeal was admitted and as regards the Civil Miscel laneous application the following order was passed "Notice for an early date. Meanwhile the amount of Rs. four lacs will not be deposited by the appellant." An application dated 27‑6‑1978 (C. M. No. 2882 of 1978) was filed by the appellants themselves praying as follows:‑ "In the circumstances, it is humbly prayed that the stay order issued by this Hon'ble Court dated 26‑6‑1978 may kindly be ordered to be vacated and the plaintiffs/pre‑emptors may be ordered to deposit the decretal amount within a reasonable time because the original time fixed by the learned trial Judge had already expired." This application filed by the appellants as well as the one (Civil Miscel laneous No. 2409/C of 1978) filed by plaintiffs came up for disposal before the Court on 28‑10‑1978 when the Court passed the following order‑ "We have two applications before us, one is C. M. No. 2409/C of 1978 filed by the appellants praying that the operation of the impugned decree be suspended to the extent that the appellants be not called upon to pay Rs. 4,00,000, on that application, an order subject to notice had been passed on 26‑4‑78, allowing the appellants not to deposit the aforesaid amount of Rs. 4,00,

000. The second application i. e. C. M. No. 3882/C of 1978 has been filed by the respondents praying that the order passed on 26‑4‑78 in C. M. No. 2409/C of 1978 be vacated. (2) The case has been called several times (it is now 12.45 p. m.) but no one has appeared for the appellants. Their application i, e. C. M. No. 2409/C of 1978 is therefore, dismissed in default. The other application of the respondents stands automatically disposed of." The plaintiffs‑pre‑emptors who were the appellants in the High Court then filed another application (C. M. 6060/C of 1978) seeking restoration of their application dismissed in default. This was dismissed on 11th of March, 1979, after examining in great detail the reasons given by the plaintiffs pre‑emptors for their failure to appear and the sufficiency of such an explana tion. The plaintiffs‑respondents filed another application dated 14th of March, 1979 (C. M. 1517/C of 1979) praying as follows‑ "However, following the vacation of stay order as implied in the dismissal in default of C: M. No. 2409/C of 1978 a direction consequential thereupon for extension of time for making deposit of decretal amount was not made although even the present respondents while moving for vacation of stay order had prayed in C. M. No. 3882/C of 1978, that, as the time fixed by the trial Court for making the deposit of dec retal amount had already expired, a reasonable time be fixed to enable plaintiffs/appellants to make the deposit. Considering that the above aspect of the case pertaining to extension of time for deposit has remained unattended to and undisposed of, it is respectfully requested that in the interest of justice a reasonable time may kindly be fixed for that purpose in extension of the time fixed by the trial Court." This application came up for hearing before the High Court on 17‑3‑1979 and the following order was passed thereon‑ "Notice for an early date. If, in the meantime the applicants want to deposit the decretal amount they may do so but such deposit will be without prejudice to the rights of the other party." Another application (C. M. 2120 of 1979 dated 8‑4‑1979) was then filed by the appellants praying that "the Honourable Court may graciously be pleased to pass an order under section 22 of the Pre‑emption Act that due to non‑compliance with the terms of the decree passed by the learned trial Court within the stipulated time the appeal stands disposed of." Both these applications, that is, 1517/C/79 filed by the plaintiffs‑respondents and the other that is 2120/C/79 filed by the appellants came up for disposal before the High Court on. 6th of June, 1979. The Court dealt with both these applications and passed the following order‑ "By the first mentioned application a prayer bad been made for extension of time to deposit the decretal amount. On that, an ad interim order had been passed on 17‑3‑1979 allowing the appellants to deposit the amount if they so wanted but such deposit was without prejudice to rights of the other party. The Court is informed that the decretal amount was actually deposited on 22‑3‑1979. (2) The second mentioned application has been filed by the respondents praying for dismissing the appeal for the reason that the decretal amount has not been deposited within the time fixed by the trial Court. (3) The effect of the deposit of the amount on 22‑3‑1979 on the maintain ability of the appeal can be gone into at the time of the final hearing of the appeal. For the present no order is therefore required to be passed on either of the two applications. The applications will therefore be considered at the appropriate time." Notwithstanding the above order passed by the High Court in the two applications, yet another Application No. 1705/C/1982 was filed by the plaintiffs‑respondents and after narrating the history of the case it was prayed that‑ "it is most respectfully prayed that by accepting this application the aforementioned applications may very graciously be directed to be heard at an early date and the question of grant of extension of time in depositing the decretal amount within reasonable time may very graciously be finally decided." It was in this background of applications by both the parties that on 30th March, 1983, Civil Miscellaneous Application No. 2120/C of 1979 filed by the appellants came to be disposed of by the impugned order. It was held therein that the appeal survived, that the deposit had been made and there was no contumacy on the part of the plaintiffs‑respondents, the appellants before the High Court, and consequently this application of the appellants was dismissed. The learned counsel for the appellants in assailing the judgment of the High Court has conceded this much that a successful pre‑emptor can file appeal without deposit being made in terms of the decree appealed against but does so at his own peril and if the appellate Court does not grant time for making up the default or the deposit then the decree of the trial Court takes effect and the suit stands dismissed. In other words, the failure of the appellant in the first appeal where no such concession is granted automatically results in the failure of the pre‑emptor in the trial Court as well because the decree is contingent or conditional. The main thrust of the arguments of the learned counsel for the appellants, however, is that the plaintiffs‑respondents by seeking an interim relief and by the refusal by the appellate Court to grant it, by refusing to restore their application dismissed in default, had lost the cause irretrievably and the first appellate Court had by so doing exhausted the totality of its powers and it was not left with any discretion in the matter even at the stage when the appeal may have come up for final disposal. On this reasoning it is contended that the decree of the trial Court took effect. The peril at which the pre‑emptor had filed the appeal became real after the refusal by the appellate Court to restore his application. He heavily relied on the provisions of section 22 of the Pre‑emp tion Act and Order XX, rule 14 of the C. P. C. coupled with the general principle that the law of pre‑emption is an exception to the general law of the land relating to freedom of contract and that it is a predatory right, not to be indulgently deserved or exercised. It is contended that full force and strict compliance with the provisions and the orders should be made at all times in order to deserve and enforce a right of pre‑emption. The first proposition advanced by the learned counsel for the appellant that a successful pre‑emptor can maintain his appeal to the end without complying with the composite and contingent decree of the trial Court but does so at his extreme peril is fully borne out by the law laid down in Shah Wali v. Ghulam Din (P L D 1966 S C 983), and fully answers the question to examine which leave was granted. His further contentions that by refusing restoration of plaintiffs' application seeking interim suspension of the decree under appeal the appellate Court exercised a discretion, that the discretion exercised amounted to rejection of prayer to suspend the decree or to extend the time, and that by such an exercise of discretion even at that stage of the proceedings the appellate Court exhausted its entire power do not appear to be correct or sound. The appellate Court in refusing restoration of the application did not exercise the discretion on the question of suspension of decree or on the question of extension of time. On the contrary, the Court in doing so, applied the law on the sufficiency of the reasons given by the party for its failure to appear on a date fixed at a particular stage of the proceedings. It was an altogether different power. Besides, exercise of regulatory powers ad interim pending suit or appeal is directed at preserving, protecting and guiding and not exhausting the more extensive power of finally, effectively and more meaningfully deciding the suit or appeal itself: What is done provisionally, tentatively, on first impression in exercise of a power incidental or ancillary to the power to decide the cause itself cannot determine or control the limits of the main power itself. The "reasonable time" view which was the minority opinion in Shah Wali's case has gained acceptance in Ansari Brothers v. Holy Trinity Church Trust (P L D 1971 S C 700), and Khurshid Akbar v. Mian Manzur Ahmed and another (1982 S C M R 824). In this case the first appellate Court had passed the order that "Meanwhile four la's will not be deposited by the appellant." While dismissing in default the plaintiffs' application the High Court did not advert to the appellants own application praying that "the plaintiffs/pre‑emptors may be ordered to deposit the decretal amount within a reasonable time because the original time fixed by the learned trial Judge had already expired." The first appellate Court at first postponed the decision of this question till the decision of appeal on merits itself and recorded an order to that effect as well but when the parties persisted a decision was given, not penalizing the plaintiffs for the delay which had taken place. It was a sound exercise of discretion for the main appeal is still pending decision and the appellate Court was fully possessed of such a power. For the foregoing reasons we find no merit in this appeal which is dismissed with costs. M. Z. M. Appeal dismissed.