1993L82 (PLP)

Facts necessary for the disposal of this Constitutional petition, briefly stated, are that the petitioner's suit for pre-emption was decreed vide judgment dated 23-7-1975 whereby the ,petitioner (plaintiff) was directed "to pay the amount of Rs. 45,000 less already deposited within 30 days from today, failing which the suit shall deem to have been dismissed with costs". Period stipulated in the judgment for depositing the aforesaid amount expired on 22-8-1975, It is an admitted position that the petitioner deposited the pre-emption amount on 23-8-1975 which was clearly beyond the prescribed period. Vendees respondents who were the defendants in the, suit made an application before the trial Court praying therein that the petitioner's suit be dismissed as he failed to deposit the requisite amount within 30 days period fixed in the judgment. Learned trial Court accepted the respondents' application and held that the petitioner having failed to deposit the pre-emption amount within the stipulated time, "the suit of the plaintiff stands dismissed". This was vide order dated 19-11-1975 (Annex. Q. Petitioner challenged this order in revision which was dismissed by the learned Addl. District Judge, Lyallpur vide his judgment dated 16-7-1976 (Annex D). These orders have been brought under challenge in this Constitutional petition. 2. 1 have heard the learned counsel for the petitioner.. It is not denied that the petitioner failed to deposit the pre-emption ' amount within the period fixed by the trial Court in its judgment. That being so, by virtue of express direction in the judgment rendered in the pre-emption suit that in the event of the failure of the plaintiff to deposit the specified amount within the prescribed period, the suit shall be deemed to have been dismissed, petitioner's suit stood dismissed as a necessary consequence of his default. There was no power either in the trial Court or the learned Addl. District Judge to condone the default or to extend the time for deposit. Refer PLD 1954 Lahore 87, facts whereof were almost similar to those in the instant case. In that case, the pre emptor/decree-holder was directed to deposit 'the pre-emption money by 16th June, 1952 failing which the suit would stand dismissed. The pre-emptor deposited the amount on 17th June i.e. a day after the date fixed and moved an application under section 148/151, P.P.C. for extension of time and condonation of delay. Trial Court dismissed the application holding that it had no jurisdiction to interfere with the time fixed in the decree for the deposit of the money. This view was upheld by this Court and relying upon a Fun Bench decision in the case "Himmun v. Fauja" (AIR 1921 Lahdte 6), it was observed "a decree can be altered in appeal, review or revision but neither section 148 nor section 151, C.P.C. can be utilized for this purpose'. Similar view was taken in 1973 Indian Cases 891 and AIR 1925 Lahore

91. In the last mentioned case the decree-holder was required to pay certain - sum of money by the 15th August, 1991 and it was expressly stated that if the money were not paid by the date, the suit would stand dismissed. Decree-holder did not pay whole of tht amount within the time fixed. It was, therefore, held that "his suit must bc considered as dismissed". Reference may usefully be made to a D.B. judgment of this Court reported in PLD 1961 (W.P.) Lahore 743 wherein it was observed that if the terms of the decree are not complied with and the pre-emptior money is not deposited in time, the decree becomes incapable of execution. I was also observed that after the trial Court has passed a decree, it cannot, b3 modifying ihat decree, extend the period of deposit, under section 148 of the Code of Civil Procedure. Learned counsel for the petitioner is unable to cite any authority to the contrary. In view of the legal position aforestated, the learned Courts below rightly held that on account of the petitioner's failure to deposit the pre emption money within the time fixed, his suit stood dismissed. Impugned orders are unexceptionable. Writ petition has no merit and it is accordingly dismissed but with no order as to costs. AA./R-83/L Petition dismissed