2001 PLP 2153 (YLR)

(5) Whether the defendants have incurred any expenditure in connection with the registration/completion of‑ the sale in question and are entitled to recover the same from the plaintiff in the event of the suit being decreed? (6) Whether the defendants have effected any improvements over the land in dispute? If so, when to what extent and effect? (7) Whether the suit has been intentionally undervalued for the purposes of court‑fees, if so, to what effect? (8) Relief. 3.In Civil Revision No.494 of 1984 petitioner Mst. Fajjan filed a pre‑emption suit in respect of land measuring 12 Kanals sold by her brother Subeh Sadiq in favour of respondents/defendants vide Mutation. No.130 dated 26‑6‑1983 in lieu of Rs.30,

000. She claimed superior right of pre‑emption being a real sister of the vendor and also contended that only a sum of Rs.16,000 were actually paid as sale price. The respondents/defendants contested the suit. They denied the superior right of pre‑emption of the plaintiff and also stated that the sum of Rs.30,000 was fixed in good faith and actually paid as the sale price. Similar issues were framed in this suit by the trial Court.

4. The learned trial Court vide judgment and decree dated 9‑7‑1984 decreed the suit of the petitioner in Civil Revision No.493‑D of 1984 but found the sale price to have been fixed in good faith and actually paid at Rs.8,500 only. According to the said decree the‑ aforesaid amount minus 1/5th pre-emption money was directed to be deposited within two months of the date of the said decree failing which the suit shall be deemed to have been dismissed.

5. In identical circumstances, the civil suit in Civil Revision No.494‑D of 1984 was also decreed on 9‑7‑1984. According to the said judgment and decree the sale price determined by the trial Court was Rs.16,000 only and the plaintiff/pre‑emptor was directed to deposit the said amount after deducting the 1/5th pre‑emption money they deposited in the Court within two months of the said decree failing which the suit for pre‑emption would be deemed to have been dismissed.

6. Separate appeals were filed against the aforesaid judgments and decrees, dated 9‑7‑1984 by the vendees. First appeal in Civil Revision No.493 of 1984 was registered as Civil Appeal No. 142 of 1984 while Civil Appeal in Civil Revision No.494‑D of 1984 was registered as No. 141 of 1984.

7. In both the appeals, controversy was confined to Issue Nos.2, 3 and 5 regarding the actual sale price and of the value of any expenditure incurred by the vendee. In the judgment and decree of the Appellate Court in Civil Revision No.493‑D of 1984 an amount of Rs.20,000 was fixed as sale consideration and Rs.800 was fixed as incidental charges. This amount of Rs20,800 was to be paid by the pre‑emptor/petitioner less amount already deposited within one month from 5‑11‑1984 failing which it was held that the suit shall stand dismissed with costs.

8. Similarly, the Appellate Court in Civil Revision No.494‑D of 1984 fixed a sum of Rs.30,000 as sale consideration and also directed the petitioner/pre‑emptor to deposit the said amount by deducting the amount already paid within one month of the date of decree failing which the suit shall stand dismissed with costs.

9. At the very outset Chaudhry Abdul Sattar, Advocate, learned counsel for respondents in these civil revisions contended that the civil revisions were liable to be dismissed on the ground that in terms of the judgment and decree dated 5‑11‑1984 passed in appeal, the petitioners in both the cases have failed to deposit the amount as directed by the judgment dated 5‑11‑1984 within one month thereof and thus, according to the judgment of the Appellate Court their suit for pre‑emption shall stand dismissed. He further submitted that both these Civil Revisions Nos.493 of 1984 and 494 of 1984 came up before this Court for the first time on 11‑12‑1984 i.e. after the expiry of one month from the date of decree of the Appellate Court and that the Appellate Court's decree having taken effect, the respective pre‑emption suits of the petitioners shall stand. dismissed and that the civil revisions were liable to be dismissed on this ground. Sheikh Muhammad Sharif Zafar, Advocate, appearing in both the civil revisions does not controvert the factual position as stated by the learned counsel for the respondent. It is admitted that the judgment and decree were passed by the First Appellate Court on 5‑11‑1984 according to which the sale price determined by the Appellate Court in each case was to be deposited within one month of the date of the said decree. It is also a matter of record that the operation of impugned appellate decree was suspended on 11‑12‑1984.

10. The learned counsel for the petitioner placed reliance on Samanda v. Muhammad Shareef and others PLD 1966 (W.P.) Lahore 414; Ziaud Din v. Ghulam Muhammad PLD 1980 B.J. 5; Khurshid Akbar v. Mian Manzoor Ahmad and others 1982 SCMR 824; Hakim Ali v. Iftikhar Ahmad Khan 1990 SCMR 1571, Muhammad Irshad v. Ch. Fazal Haq 1991 SCMR 2149; Bhai Khan v. Allah Bakhsh 1986 SCMR 849; Muhammad Nawaz v. Muhammad Sadiq 1995 SCMR 105, Muhammad Rafiq Khan .v. Faqir Muhammad 1987 CLC 898 and Faqir Muhammad v. Ghulam Fatima 1993 CLC 283 and submitted that despite the failure of the petitioner to deposit the decretal pre-emption consideration within the time prescribed by the Appellate Court the civil revision is maintainable and that in exercise of revisional jurisdiction this Court can extend the time for deposit of the said amount.

11. After hearing the arguments advanced by the learned counsel for the parties and perusal of the record, the submissions made by the petitioner are found to be devoid of merit. The judgment and decree dated 5‑11‑1984 provided as under: "Amount shall be paid by the plaintiff less already deposited within one month from today failing which his suit shall stand dismissed with costs." The said decree leaves no manner of doubt that in the event of the non‑deposit of the pre-emption consideration within one month of 5‑11‑1984 the suit shall stand dismissed. The present civil revision was filed before this Court and was put up for hearing for the first time on 11‑12‑1984. Neither in the memorandum of the revision petition nor at any other stage did the petitioner refer to the non‑deposit of pre‑emption money in terms of the impugned decree. Even at the time of admission of this civil revision to regular hearing no such disclosure was made. It was merely contended that since the judgments of the two Courts below are at variance the revision petition was liable to be admitted to regular hearing. It was only on 11‑12‑1984 that the order for suspension of the impugned decree was passed. It would thus show that in view of this factual position the pre‑emption suit stood dismissed in terms of, the Appellate Court's decree even on the day when the civil revision was filed.

12. The case of Samanda v. Muhammad Shareef and others (PLD 1966 (W.P.) Lahore 414) is not attracted in the circumstances of the instant case as in that case it was held that:‑‑ "It is contrary of sound ‑principle to compel .the plaintiff/pre-emptor to, pay the amount decreed by the trial Court and to subject him to the penalty of losing the right of pre‑emption, if he fails to do so, when he has a right to question the correctness of the amount 'made payable by the trial Court by means of an appeal against it." Obviously this principle cannot apply to the case in hand where the right of appeal has already been exhausted and it is the decree of the Appellate Court according to which he had to deposit the decretal amount within one month of the Appellate Court's decree. The second case of' Zia‑ul‑Din v. Ghulam Muhammad PLD 1980 BJ. 5 does not help the petitioner either. It. was held therein that whether reasonable time was allowed to appellant to deposit decretal amount or not was hardly a question of law for interference in second appeal. In the instant case neither the question of reasonableness of time has been raised at any stage nor it can be so raised, not being a question of law nor can such a question be raised in revision as it is not a continuation of the original suit. Case of Khurshid Akbar v. Mian Manzoor Ahmed supra and Hakim Ali v. Iftikhar Ahmed supra have no bearing upon the instant revision. Similarly case of Muhammad Irshad v. Chaudhry Fazal Haq 1991 SCMR 2149, Bhai Khan v. Allah Bakhsh 1986. SCMR 849, Muhammad Nawaz v. Muhammad Sadiq 1995 SCMR 105 deal with the power of Appellate Court to extend time for deposit of pre‑emption amount and are irrelevant for decision of present controversy. In Muhammad Rafiq Khan v. Faqir Muhammad 1997 CLC 898 the default in the deposit of decretal amount was occasioned on account of an injunctive order passed by the Appellate Court. and it was thus, held in that case that the pre‑emptor was not at default. Similar is the view expressed in the case of Faqir Muhammad v. Ghulam Fatima 1993 CLC 283.

13. From the above discussion, it is crystal clear that the judgment and decree dated 5‑11‑1984 took effect upon the expiry of one month commencing from the date of said decree dated 5‑11‑1984 and upon the failure of the petitioner/pre‑emptor to deposit the decretal amount within period prescribed his suit stood dismissed with costs. In this view of the matter, the petitioner has been unable to take out any case for exercise of revisional jurisdiction by this Court as there is no legal infirmity or illegality found in the impugned judgment and decree. Further, the petitioner has himself defaulted in the payment of the decretal pre‑emption amount within the time prescribed by the decree of the Appellate Court and on no sound principle of law or equity any indulgence can be granted to 'him. The civil revision is, therefore, dismissed. Parties to bear their own costs. H.B.T./M‑769/L Revision dismissed.