P L D 1973 Lahore 481 (PLP)

Asadullah Siddiqui for Petitioners. A. S. Salam with Zafar Yasin for Respondent. Date of hearing : 5th July 1972. The suit of Bashir Ahmad, plaintiff‑respondent was decreed for possession through pre‑emption by the learned trial Judge by his judgment and decree dated the 8th of April 1965 on payment on or before the 23rd of April 1965 by him of the pre‑emption money in the sum of Re. 20,250.00 after deducting 1/5th of the amount which he had already deposited under section 22 of the Punjab Pre emption Act. He preferred an appeal on the 22nd of April 1965 on the ground that the amount actually agreed upon and paid by the vendee was Rs. 6,750.00. He also prayed for the suspension of the decree. The learned District Judge did not suspend the decree but Instead directed by his order dated the 23rd of April 1965 : "The period of depositing the pre emption amount 13 extended up to 21‑5‑1965. Notice to the respondent for this date. Process‑fee to be deposited within two days". The plaintiff deposited the amount before that date. The respondent, though was served with the notice, did not object to this order. The appeal came up for final hearing on the 4th of June 1965 when it was dismissed by the learned District Judge. The petitioner‑vendee did not even at that stage challenge the order of the learned District Judge whereby he had extended the period for payment of pre‑emption money. The vendee, however, on the 14th June 1965, after the dismissal of the appeal of the respondent, filed revision petition to challenge the order of the District Judge dated the 23rd of April 1965 by which the period for payment of the pre‑emption money was extended. His case is that the appellate Court had no jurisdic tion to extend by an ad interim order the period of payment specified in the decree of the trial Court.

2. The petitioner can succeed in this petition only if he can make out a case that the District Judge has acted either without jurisdiction ; or in excess of jurisdiction, or has, in the exercise of his jurisdiction, acted illegally or with material irregularity. It is not disputed that the learned District Judge when be passed the impugned order was seized of the matter as an appellate Court, and be was competent to bear and decide the appeal. It was held in F. A. Khan v. Government of Pakistan (PLD1964SC520) by Kaikaus, J., that "when an appeal is filed the matter becomes sub judice and is reheard by the appellate Court which does not act merely as a Court of error." In arriving at this decision his Lordship relied on Lachmeshwar v. Keshwar Lal (AIR1941FC5) wherein it was hold that an appeal was a rehearing of the suit and cot merely a proceeding in which the correctness or otherwise of the decision already made by the original Court was to be determined. Varadachariar, J., observed at page 13 of the report : "Once the decree of the High Court had been appealed against, the matter became sub judice again and thereafter this Court had seisin of the whole case . . . . .". In this view of the matter, the appellate Court could pass all orders which it was competent for the trial Court to pass in such matters. It is provided in section 151 of the Code of Civil Procedure : "Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court". In Shah Wali v. Ghulam Din (P L D 1966 S C 983), Cornelius, C. J., observed at page 997: "If power could not be derived from any other source, I conceive that under section 151, Civil Procedure Code, the High Court would have been competent to make such an order as would not only advance the justice of the case, but also have the effect of giving validity to the High Court's own decree of the 2nd February 1920". The appeal was admitted to hearing on the 23rd of April 1965, and it was the last date for deposit of the money. In the event of his failure to deposit the amount, the suit of the plaintiff‑respondent would have been dismissed under rule 14 of Order XX of the Code of Civil Procedure. If the learned District Judge had not found any merit in the appeal, he would have dismissed it in limine under rule 11 of Order XLI of the Code. Since it was not so dismissed it implied that it was not without substance. By the admission of the appeal the entire matter became sub judice and it became competent fore the District Judge to pass an order under section 151, C. P. C.1 as was necessary for the ends of justice.

3. Learned counsel for the petitioner relied on Malik Khan Badshah v. Miram Khan (A I R 1944 Pesh. 22) wherein it was held : "in a pre emption suit the order of the original Court fixing the time under which payment is to be made forming as it does part of the decree of the original Court can only be set aside by the decree of a superior Court. The appellate Court cannot set aside any portion of that decree by an interlocutory order under section 148, C. P. C...." With due respects to the learned Judicial Commissioner, I am unable to agree with this view, for the reason that when an appeal is admitted to hearing the matter becomes sub judice and the Court is seized of the whole matter. In F. A. Khan v. Government of Pakistan Kaikaus, J, repro duced with approval the observations of a Court of foreign juris diction in Garikapati Veeraya v. Subbiah Choudhury (P L D 1957 S C (Ind.) 448) where it was held : " . . the legal pursuit of a remedy, suit, appeal and second appeal, are really but steps in a series of judicial proceedings all connected by an intrinsic unit and are to be regarded as one legal proceeding" and his Lordship proceeded to hold : "We are not at all unfamiliar with cases where an appeal is said to be a continuation of a suit or is included within the word suit. The Legislature when it provides a hierarchy of tribunals for the determination of a dispute is really providing one complete procedure for such determination, proceedings before different tribunals being only steps in this procedure." His Lordship also observed : "In any case once an appeal is filed the matter becomes sub judice and when the appellate authority passes an order the order of the original authority disappears and merges in the order of the appellate authority so that there remains in existence only the appellate order and this order can be made the basis of a suit." The view expressed in Malik Khan Badshah v. Miram Khan, if accepted, would deprive the appellate Court after it is seized of the matter to pass interim orders which it is competent to do under section 151 of the Code of Civil Procedure "for the ends of justice or to prevent abuse of the process of the Court". I may refer to Laxman Vishramji Patwari v. Deorao Vishramji Patil (A I R 1940 Nag. 202) where the plaintiff pre‑emptor had, while challenging the decree of the trial Court on the question of the amount of pre‑emption money, obtained from the appel late Court an order within time fixed for the payment for extension of time. Repelling the contention of the vendee that time could not be extended, it was held "I do not consider that the lower Appellate Court's order in acceding to the request made by the appellant in that Court for extension of time within which to make the deposit ordered by the trial Court can be challenged. The application was made well within the time, and the Appellate Court's order that Rs. 125 the amount which the appellant claimed, should be the correct pre‑emption price was promptly obeyed. To hold that an Appellate Court is incompetent and has no jurisdiction to pass an order might result in debarring a plaintiff‑appellant from his right of appeal altogether." In Holy Trinity Church Trust v. Ansari Brothers (P L D 1963 Lah. 489) ft was observed that "the position would be different in cases where the appellant, as has been done in the present case, obtains a stay order from the appellate Court, stopping the operation of the order under appeal during the pendency of the appeal. The stay order suspends the operation of the order of the original Court and when an order is suspended by a competent Court in its operation, its performance is obviously avoided and if in the meanwhile the date of performance expires during the suspension period, the party that had to perform the act on that date cannot be visited with a penalty for not having performed it during the time when its operation was suspended. In such cases, therefore, while the dismissal of the appeal brings about the restoration of the original decree, with all its contents and provisions, the time for the performance of the act which had been suspended during the pendency of the appeal is revived from the date of the appellate order to be performed within the period equal to that as enjoined in the original order." The appellate Court by extending the period for payment of the purchase money had impliedly suspended the operation of the order of the original Court till the 21st of May 1965. The plaintiff‑respondent paid the pre‑emption money during this period. It is true that the appeal was dismissed and there was no mention made in the judgment or the decree about the extension of the time, but in view of the fact that the Court had passed the order when it was seized of the matter and it was competent to do so, no exception can be taken to that.

4. There is yet another aspect of the case. In F. A. Khan v. Government of Pakistan, Kaikaus J., had also held that "after there has been an appeal even though an appellate Court simply affirms the order of the original Court the only decree or order in existence is the order of the appellate Court" and his Lordship relied on Ram Churn Bysak and another v. Luckhee Kant Bornick and others (16SWRI) and Kristo Kinkur Roy and another v. Rajah Burrodacaunt Roy and another (14MIA465). His Lordship also relied on Lala Brij Narain v. Kunwar Tejbal Bikram Bahadur (37 I A 70 (P C) and Abdul Majid v. Jawahir Lal (30 All. 350 (P C)) to hold that after an appeal has been filed and decided, the decree in the case will be the decree of the appellate Court. In Shah Wall v. Ghulam Din, Cornelius, C. J., held that if in the appellate decree there is no time fixed, the matter in such cases could be corrected by obtaining from the appellate Court an order supplementing the date for depositing the pre‑emption money. It was also observed that the rule of "reasonable time" in such a case can be applied and that if power could not be derived from any other source, provisions of section 151, C. P. C. could be invoked. It was, however, made clear that such power could not have been invoked when the appeal had been dismissed in limine for the reason that the Court could not be said to have become seized of the appeal. In the same case, Hamoodur Rahman, J. (as he then was, now Chief Justice of Pakistan) pronounced that "where the appeal is admitted for full hearing the appellate Court has every right to vary the decree by enlarging time even when the appeal has been filed without making the deposit within the time allowed by the lower Court". His Lordship further observed that if the appellate Court says nothing about the time fixed by the lower Court in making the deposit, the pre‑emption money may be deposited within a reasonable time from the date of the appellate decree, and agreeing with the view expressed by Cornelius, C. J., held that this view "which appears to be more in consonance with reason and justice should be preferred so that inconsistencies are avoided and a successful pre‑emptor is not deprived of the fruits of his decree unreasonably." In this view of the matter also, the respondent‑pre‑emptor could, after the dismissal of his appeal by the learned District Judge, deposit by the order of the appellate Court the pre‑emption money within a reason able time. That situation. however, did not arise, here, because the amount had already been deposited In pursuance of the order of the learned District Judge when the appeal was still pending.

5. For the foregoing reasons, I find no merit in this revision petition which is dismissed, but having regard to the delicate nature of the question of law involved in this case, I make no order as to costs. S.A. H. Petition dismissed.