P L D 1969 Lahore 636 (PLP)

"Did the plaintiff comply with the order of the Court regard ing the deposit of pre‑emption money."

4. By his order dated the 25th January 1963, the learned Administrative Civil Judge after hearing the parties came to the conclusion that the plaintiff's failure to deposit the full pre-emption money before 1‑30 p.m. on 4th July 1962, amounted to his failure to comply with the condition precedent on which the pre‑emption decree was passed in his favour. Therefore, his pre‑emption suit stood dismissed on 4th July 1962 and his subsequent tender of Rs. 7,400.00 at 4‑30 p. m. on that date and its deposit in the treasury on the following day did not avert the dismissal of his pre‑emption suit. The learned Additional District Judge on appeal by the plaintiff, however, came to a contrary conclusion. He opined that since the decree in the suit was essentially based on the compromise of the parties, therefore, the provisions of rule 14, Order XX, C. P. C. did not "strictly speaking" apply to the case. In support of this view, the learned Additional District Judge relied upon Rehmat Khan and another v. Nawab Khan (A I R 1925 Lah. 91). On this view of the matter the learned Additional District Judge held that the tender of Rs. 7,400.00 by the plaintiff‑respondent's special attorney at 4‑30 p.m. on 4th July 1962, though after Court hours, "substantially complied with the terms of the compromise decree". Accordingly he reversed the order dated the 25th of January 1963, of the learned Administrative Civil Judge. Hence this second appeal by the defendant‑vendee.

5. Learned counsel for the appellant‑vendee argued in the first instance that the appeal by, the plaintiff‑respondent against order of the learned Administrative Civil Judge dated the 25th January 1963, holding that the pre‑emption suit stood automa tically dismissed on 4th July 1962, owing to the plaintiff's failure to deposit the pre‑emption money, was not competent and, therefore, the appellate order of the learned Additional District Judge was wholly without jurisdiction. The argument was that an order relating to the payment or non‑payment of the pre‑emption money in compliance with the terms of the decree was not made appealable under section 104, C. P. C. read with Order XLIII, rule 1 ibid, therefore, the respondent's appeal before the Additional District Judge and the appellate order passed by his purporting to reverse the order of the learned Administrative Civil Judge was corum non judice.

6. Learned counsel for the respondent did not dispute the proposition that the order dated the 25th January 1963, was not appealable under Order XLIII, rule 1, C. P. C. Neverthe less he sought to maintain the validity of the appellate order passed by the learned Additional District Judge on three‑fold ground. Firstly, it was urged that the appellant‑defendant did not question the competency of the appeal before the learned Additional District Judge and contested the appeal against him only on its merits. Having failed on merits he cannot now turn round to canvass against the competency of the appeal before the lower Appellate Court. Secondly, it was urged, that the question before the Administrative Civil Judge and for that matter in appeal before the learned Additional District Judge was germane to "the execution, discharge or satisfaction" of the pre‑emption decree within the meaning of section 47, C. P. C. and, therefore, was appealable as a decree. Lastly it was urged that even assuming for the sake of argument that the first appeal before the learned Additional District Judge was not competent, that would necessarily affect the competency of the instant appeal and that, therefore, the objection was self- destructive.

7. In my opinion, the argument in reply to the proposition canvassed on behalf of the appellant‑vendee has no substance. As to the first contention it is axiomatic that right of appeal is a creature of statute. An appeal is competent only if the relevant statute so provides and not otherwise. It is equally well‑established principle that parties by agreement cannot confer B jurisdiction upon a Court. A fortiori any omission to raise objection against jurisdiction where none exists, will not confer jurisdiction by estoppel as it were. See monograph 1178 Helsbury's Laws of England, 2nd Edn., Vol. 8, which for the relevant purpose reads :‑ "Where, by reason of any limitation imposed by statute, charter or commission, a Court is without jurisdiction to entertain any particular action or matter, neither the acquiescence nor the express consent of the parties can confer jurisdiction upon the Court, nor can consent give a Court jurisdiction if a condition which goes to the jurisdiction has not been performed or fulfilled . . . . Where a Court takes upon itself to exercise a jurisdiction it does not possess, its decision amounts to nothing." Bepin Behari v. Mohit Kumar (I L R 1 Cal. 149), is also in point. It is, therefore, manifest that consent cannot give jurisdiction and want of jurisdiction cannot be waived either. There‑I fore, the mere fact that the appellant‑defendant did not raise any objection to the jurisdiction of the learned Additional District Judge to entertain the appeal against the order dated the 25th January 1963, would not preclude him from agitating the matter for the first time in this appeal.

8. The second contention proceeds on the fallacious assump tion that there existed an effective decree in favour of the plaintiff-respondent and that the proceedings before the learned Administrative Civil Judge, which culminated in the order dated the 25th January 1963, related to the execution discharge and satisfac tion of that decree. A somewhat similar question arose in a recent case before their Lordships of the Supreme Court in Shah Wali v. Ghulam Din (P L D 1966 S C 983). In that case too a pre‑emptor deposited the pre‑emption money as specified in the decree but owing to a bona fide mistake it fell short of the requisite amount by Rs. 123.75 and the question that ultimately was debated before their Lordships was whether it was competent either to the trial Court or to the Appellate Court under section 148, C. P. C. to extend the time for the deposit of Rs. 123.75 after the expiry of the terminal date as fixed in the original decree. The question was answered in the negative. In support of the argument canvassing the jurisdiction of the Court to make such orders in the circumstances of the case, section 47, C. P. C. was also invoked. Their Lordships by the majority judgment repelled the contention by the following observations at page 994 of the report :‑ "The short answer to the contention that the question of extension of time for payment into Court, of pre‑emption money, might be covered by section 47 of the Code of Civil Procedure as a question relating to the execution, discharge or satisfaction of the decree, is that the executing Court cannot as a rule go behind the decree save perhaps in circum stances of an exceptional character." It is plain that section 47, C. P. C. presupposes an executable decree and it is only then that the question relating to its execution, discharge and satisfaction can possibly arise. In the instant case, on the other hand, the decree in favour of the plaintiff‑respondent was conditional and unless that condition was satisfied it remained inchoate. That being so, there could hardly be any question of its execution, discharge or satisfaction, unless the condition precedent subject to which it was made was satisfied. An argument invoking the provisions of section 244 of the Code of Civil Procedure of 1877, which corresponds to section 47 of the present Code, raised in somewhat similar circumstances as in this case, was repelled in Gangadhar v. Anrudh Singh ((1908) 110 Cal. 148). That case arose out of a pre‑emption suit in which the Court of first instance had held that for failure to deposit the sale price within the time specified, the suit shall stand dismissed. The decree‑holder preferred an appeal from that order to the District Judge describing as an appeal under section 244, (old C. P. C.). The District Judge allowed the appeal and .set aside the order dismissing the suit on the ground that the sale price was duly deposited. A learned Judge of the Oudh Chief Court, in revision, set aside the order of the District Judge holding it to be entirely "without jurisdiction because a question of payment or non‑payment of a pre‑emptive sale price in compli ance with a decree . . . . . is not a question of execution open to appeal under section 244". This view was later approved in another case of the same Court in Janga Singh v. Lachhmi Narain (A I R 1920 Oudh 25).

9. To the last contention of the learned counsel for the respondent the short reply is that once it is held that the learned Additional District Judge had no jurisdiction to entertain the appeal, as he did not have in the instant case, then in any case his order will be liable to be set aside in revision under section 115, C. P. C. It is not disputed that there is nothing to prevent this Court from treating this appeal as revision against the impugned order which being wholly without jurisdiction must be set aside. Even otherwise it was held in Ram Ratan Prasad and others v. Banarsi Lal and others (A I R 1930 Pat. 280), that where the lower Appellate Court entertains as appeal which does not lie to that Court, a second appeal is competent against the decision of that Court.

10. For the foregoing reasons I have no doubt in my mind that the respondent's appeal before the lower Appellate Court was wholly incompetent and, therefore, the instant appeal must succeed on that ground alone.

11. As the case was also argued on merits and I have formed my opinion on them. I incline to base my judgment on the merits of the case also.

12. The facts as set out in the beginning are not disputed. Therefore, the short question that arises for consideration is whether the tender of money at 4‑30 p.m.‑three hours after the normal Court hours‑on the terminal date could be considered as a valid tender so as to constitute the satisfaction of condition precedent subject to which the pre‑emption suit was decreed in favour of the plaintiff‑respondent. It was argued by learned counsel for the respondent that the order of the learned Administrative Civil Judge dated the 4th April 1962, decreeing the plaintiff's suit did not expressly provide that the pre‑emption money shall be deposited during Court hours. Nor is it the requirement of rule 14, Order XX, C. P. C. that the pre‑emption money be deposited before the rising of the Court. By contrast learned counsel referred to section 15 of the Oudh Laws Act (XVIII of 1876), which reads as follows: "If such purchase money or amount is not paid into Court before it rises on that day the decree shall become void, and the plaintiff shall so far only as relates to such sale or mortgage lose his right of pre‑emption over the property to which the decree relates." On the basis of the phraseology of the above section, it was stressed that in the absence of any such provision prohibiting the presiding officer from accepting the deposit after the normal Court hours, there was nothing to prevent the learned Adminis trative Civil Judge to accept for deposit Rs. 7,400.00 even at 4‑30 p.m. on 4th July 1962. The argument disregards the provisions of rule 7 of Chapter I‑B of the High Court Rules and Orders, Volume I, to which a reference has already been made in this judgment, which inter alia expressly forbids a presiding Judge of a civil Court to accept any petition after he has risen for the day and the petition box is brought back to the Court Room for the third time. This rule has been framed under section 122 of the Code of Civil Procedure and, therefore, has the force of law. The argument also conveniently overlooks the fact that at the time when Subedar Baqar Hussain, special attorney of the plaintiff, made the first application on the 4th July 1962, he had no money with him and when at last he brought the money the learned Administrative Civil Judge declined to accept the same and left it to the applicant to deposit the same "on his own responsibility" on the following day. A question of same nicety would certainly have arisen if the learned Administrative Civil Judge had thought it fit to accept the tender of the money even after Court hours. But since he in the exercise of his discretion did not choose to accept it, therefore, the stark fact remains that the pre‑emption money was not deposited until 5th July 1962, which was past the date specified in the decree and which had definitely the effect of nullifying the decree in favour of the plaintiff‑respondent.

13. For the foregoing reasons I accept the appeal with costs, set aside the order of the learned Additional District Judge and restore that of the learned Administrative Civil Judge treating the suit as dismissed on the 4th July 1962. K. B. A. Appeal accepted.