1994 PLP 459 (MLD)

Mst. Gullai, daughter of Waryam was owner of 4 Kanals of land at Mauza Ghulaman. in the then Tehsil Bhakkar of District Mianwali. By Mutation No.581 attested on 25-7-1967, she sold it to Fazal respondent for a sum of Rs3,

000. Fateh Muhammad since deceased now represented by his legal-representatives claimed pre-emption in respect of this sale. He asserted his superior right of pre-emption on account of being a real brother of the vendor and a co-owner in the joint Khata with her. Price shown in the sale mutation was disputed and it was asserted that the land was sold for Rs.300 only and the same was its market value. Pre-emption suit was instituted on 12-7-1968. Vendee-defendant resisted the pre-emption suit; denied the superior right of pre-emption claimed against him and asserted full payment of sale price mentioned in the sale mutation. On trial, primary Court decreed pre-emption suit on January 17, 1970 upon payment of Rs.1,200 as sale price of the land to the defendant by a specified date in the decree. It was held that the price shown in the sale mutation was not proved to have been fixed in good faith or actually paid and the market value of the land was Rs.1,

200. On appeal by the defendant, District Judge Mianwali, on 27-6-1970, reversed the decree of the trial Court and remanded the pre-emption suit for a fresh finding on issue No.4 relating to fixation of market value of the land by appointment of a new local Commissioner. Upon remand, the local Commissioner deputed for the purpose reported Rs.1,600 as market value of the land at the time of its sale. His report is dated 15-7-1970. However, the trial Court on consideration of the evidence found that the market value of land was Rs.3,000 and gave decree for pre -emption upon its payment till 25-1-1972, on 23-i1-1971. Plaintiff preferred an appeal in the District Court at Mianwali for reduction in the sale-price. His appeal was dismissed on 1-3-1972; by District Judge, Mianwali who maintained the finding of the trial Court on issue No.4. However, appellant was allowed to deposit the purchase-price, on or before 5-4-1972. Thereupon, a further appeal for a similar relief was filed in this Court by the plaintiff-pre-emptor. It was admitted on 8-5-1972 and ever since was on the docket of this Court. Learned counsel for the parties were heard. Sale-price shown to have been paid in the sale mutation and upheld in the impugned, judgment was conceded at the hearing of appeal by learned counsel for the appellant. Therefore, the solitary point for decision in the second appeal was resolved by concession. Resultant point for consideration was, whether the appellants were entitled to an extension of time for deposit of pre-emption money. Learned counsel for the respondent urged against extension of time. It was submitted that the appellant unnecessarily prolonged the litigation and delayed the deposit of purchase-money on account of which, respondent greatly suffered. Conversely, it was urged that the sale-price stated in the mutation was not found to have been fixed in good faith or actually paid and the trial Court in the first round, had fixed the market value of the land at Rs.1,

200. On appeal,.' the case was remanded for a fresh decision on market value. Local Commissioner appointed for the determination of market value found it at Rs.1,

600. However, on consideration of the entire material, the trial Court had fixed the sale-price at Rs.3,

000. Appeal preferred from the decree of the trial Court on question of market value had failed and thereupon, a second appeal was filed in this Court. In the circumstances, it could not be urged that the appeal was frivolous and the appellant was prolonging its decision purposely. !n my view, in the then prevailing times, a dispute on the market value of the land and an appeal for its reduction on the basis of proof adduced in the suit could not be termed frivolous with an object of prolonging the litigation for mustering the funds for acquiring the land in pre-emption to the annoyance of the respondent. Therefore, as an ordinary rule, the appellant was entitled to an extension of time for deposit of the pre-emption money. It was not an exceptional case for denial of extension of time to them. Relying upon the decision of the Supreme Court in the case of Bhai Khan v. Allah Bakhsh and another 1986 SCMR 849, Ghulam Haider and others v. Mst. Raj Bharri and others PLD 1988 SC 20, appellants were found entitled to an extension of time for depositing the pre-emption money for saving the pre-emption decree in their favour. They were not contributory to delay. In view of the above, second appeal is dismissed but the appellants are allowed to deposit the purchase-price in the sum of Rs.3,000 (minus already paid) on or before 6-12-1993, in the trial Court. In default, the pre-emption suit shall be deemed to have been dismissed with costs. As for this appeal, parties shall bear their own costs. Records be returned, AA./F-111/L Order accordingly,