1990SCMR 1571 (PLP)

MUHAMMAD AFZAL ZULLAH, C.J.‑‑Leave to appeal has been sought by the defendant side in a pre‑emption suit, against the dismissal by the High Court, of their Civil Revision. The controversy which now remains to be resolved is whether the late deposit of the pre‑emption amount would nullify the decree passed in respondent's favour. The trial Court while decreeing the suit in respondent's favour had directed the payment of the balance decretal amount by 30th November 1983. An appeal having been filed before the High Court the decree -holder made an application for suspension of the order of deposit. The High Court instead of deciding this application finally before 30th November, 1983 and on the decree‑holder's own asking permitted him to make the deposit by 5‑12 1983. This order was subject to all just exceptions. The decree‑holder, however, did not make any deposit by 5‑12‑1983, presumably because the said application was not decided finally and was kept pending on account of which the decree- holder, prima facie, could wait for its final decision before making the deposit. The said application (C.M. 6016/C‑83) was again taken up for consideration on 28‑2‑1984 and the following order was passed:‑‑ "The condition precedent imposed by the learned trial Court, namely, the deposit of the sale price and so also the direction given in the order dated 28‑11‑1983 have not been complied with. The learned counsel for the appellant however states that it would not affect the sustenance of the R.FA. "Since the appeal has already been admitted to regular hearing the effect of non‑deposit of sale price can be taken note of alongwith the main case. The civil miscellaneous stands disposed of." Subsequently the appeal was sent to the District Court for decision. It was partly allowed. The decretal amount was enhanced. There was some award for the costs of improvements. The learned First Appellate Court in this second round did not agree with the petitioner/vendee's plea that the failure to make the deposit earlier of the decretal amount in accordance with the direction of the trial Court, nullified the decree. In Revision also the High Court did not agree with this plea and petitioner's Civil Revision having been dismissed, leave to appeal has now been sought. Learned counsel stated that the question of late payment of the decretal amount is the sole question which now needed to be resolved. He accordingly addressed argument on that point. The main plea is that the application dated 27th November, 1983 stood disposed of on 28‑11‑1983 and in any case it was also formally disposed of on 28‑2‑1984. However, there is a fallacy in this argument, namely, that although the petition was formally disposed of by order dated 28‑2‑1984, the question raised therein was deferred for decision to a later stage and admittedly the respondent/decree‑holder did make the deposit prior to that stage. It was, therefore, not merely the default of the decree‑holder but also the orders of the High Court passed on this application, which kept it pending till 28‑2‑1984 and thereafter although it stood formally disposed of the question raised therein remained pending decision. The trend of authority is that in such like circumstances when it is on account of an act of Court that a party is likely to suffer harm, the Court would not let it suffer any such harm. See for example Malik Hadayat Ullah and 2 others v. Murad Ali Khan (PLD 1972 S C 69). Moreover it was held in Bhai Khan v. Allah Bakhsh and another (1986 SCMR 849) that it is the discretion of the Court in such like matters to treat the deposit as without default. The High Court having applied mind on this aspect of the matter in a detailed judgment, acted on this rule. The respondent/decree‑holder could not in the circumstances of this case be penalised for act of Court. The exercise of discretion in favour of the decree‑holder does not contravene any law or principle. The impugned judgment is otherwise also unexceptionable. Leave to appeal, therefore is refused. H.B.T./H‑112/S Leave refused.