2001 PLP 3302 (YLR)

SARDAR SAID MUHAMMAD KHAN, CJ.‑‑‑This appeal has been directed against the judgment and decree of the High Court, dated 25‑11‑2000, whereby the pre emption suit filed by the appellant, herein, was dismissed on the ground that he did not deposit pre‑emption amount within the limitation as was directed by the trial Court.

2. The brief facts of the case are that Noor Muhammad and Gul Muhammad, vendees‑respondents, purchased the suit land from one Gul Dad Khan through a registered sale‑deed, dated 11‑1‑1984. A pre‑emption suit was filed against the said sale‑deed by the appellant, herein, which was decreed by the trial Court vide its judgment, dated 30‑3‑1989, directing the plaintiff‑appellant to deposit the pre‑emption money plus expenses incurred on sale‑deed within thirty days, failing which the suit filed by the appellant would stand dismissed. An appeal was filed by Noor Muhammad and Gul Muhammad, vendees, before the District Judge on 27‑4‑1989 challenging the decree passed in favour of the appellant, herein, whereas Shaukat Khan, appellant herein, also filed a cross‑appeal seeking reductions in the pre emption money on 30‑4‑1989. Both the appeals were dismissed by the District Judge vide judgment, dated 26‑6‑1999. The vendees‑respondents filed appeal to the High Court, inter alia, on the ground that the suit filed by the appellant, herein, stood dismissed because according to the judgment and decree of the trial Court he had to deposit the pre emption money etc. within a period of thirty days, which expired on 29‑3‑1989 but the appellant filed the appeal before the District Judge on 30‑3‑1989, i.e. one day after the expiry of the said date. The High Court accepted the appeal holding that as the suspension order was passed by the District Judge after the date when the suit already stood dismissed, the same was illegal and ineffective.

3. It has been contended by Mr. Nisar Anjum, the learned counsel for the appellant, that the trial Court has not fixed any specific E date for depositing the aforesaid amount and merely directed to deposit the said amount within thirty days which was an ambiguous order. He has further submitted that even otherwise, the period for filing appeal to the District Judge was ninety days whereas the trial Court ordered to deposit the amount within thirty days and, thus, the District Judge rightly condoned the delay for depositing the pre‑emption money. He has contended that even otherwise, the Appellate Court has jurisdiction to extend the period for depositing the pre‑emption money etc. fixed by the trial Court. The learned counsel has argued that he has submitted an application for suspension of the order of the trial Court which was accompanied by an affidavit stating that the delay in obtaining the suspension order was only that of one day which occurred due to a bona fide mistake. An application was also submitted before the District Judge stating that pre‑emption money, as was directed by the trial Court, might be allowed to be deposited. The learned District Judge, vide his order, dated 26‑6‑1999, accepted the said application and condoned the delay of one day which occurred in depositing the pre emption money and allowed its deposit. Consequently, the same was deposited with the Court as is evident from the note on the said application whereby the pre‑emption money amounting to Rs.41,478 was deposited under serial No.441. The learned counsel has argued that the discretion exercised by the District Judge in suspending the trial Court's judgment and allowing the appellant to deposit the decretal amount cannot be interfered with.

4. We have given due consideration to the arguments raised at the Bar. It may be stated that the limitation for filing the appeal before the District Judge is ninety days whereas the trial Court gave only thirty days for depositing the pre‑emption amount i.e. about sixty days earlier than the expiry of period of limitation of appeal. It may also be pointed out that under rule 14 of Order XX, C.P.C. a specific date has to be fixed before which the pre‑emption money is to be deposited but in the instant case the learned trial Judge has merely mentioned that the pre emption amount should be deposited within thirty days; it failed to specify a specific date. Obviously, in view of the nature of the order passed by the trial Court the possibility of a bona fide mistake in depositing the pre emption money cannot be excluded. Even otherwise, the provisions contained in Order XX, rule 14, C.P.C. is of penal nature and should not be strictly construed. A reference may be made to the case reported as Fateh Khan v. Boze Mir (PLD 1991 SC 782), wherein it has been held that provisions contained under Order XX, rule 14, C.P.C. is‑of penal nature and the same should not be strictly construed. It was further held that as no date was mentioned for depositing the pre emption money, the pre‑emptor could not be penalised by dismissing the suit. In a case reported as Bhai Khan v. Allah Bakhsh 1986 SCMR 849 it has been held that the appellate Court has power to extend the time for depositing the pre‑emption money. The discretion exercised for depositing the pre‑emption money in favour of pre‑emptor should not ordinarily be interfered with.

5. It is evident from what has been stated above that in the instant case no definite date was fixed for depositing the pre emption amount; besides, the learned District Judge has not only suspended the order of the trial Court during the pendency of the appeal but he also accepted the application of the pre‑emptor‑appellant and allowed him to deposit the pre‑emption money in the Court which has been duly deposited as stated above. Therefore, we are of the opinion that the High Court was not justified in dismissing the suit of the pre‑emptor‑appellant. In the light of what has been stated above, we accept the appeal and set aside the impugned judgment and decree of the High Court and restore that of the trial Court. Consequently, the pre‑emption suit filed by the appellant stands decreed. H.B.T./215/SC(AJ&K) Order accordingly.