1991 PLP 2109 (MLD)

The order of the High Court with the notes endorsed thereon by the District Judge and the Sub-Judge was handed over in original to the applicant on 10th October, 1984 by the Sub-Judge, Pallandari.

4. The applicant submitted another application on 11th October, 1984 in the High Court at Muzaffarabad. The order of the High Court, dated 8th October, 1984 alongwith the notes of District Judge, Rawalakot and Sub-Judge, Pallandari endorsed thereon were also placed on record. The application dated 11th October, 1984 is in fact a continuation of the earlier application, dated 8th October, 1984 and the order of the High Court endorsed thereon of the same day.

5. As recorded in para 1 above, the application was once disposed of on 26th April, 1986 by the learned Chief Justice with .the following order: " ..In view of the reasons listed above, the application succeeds. The petitioner is allowed to deposit the decretal amount in question within a period of three months from the date of announcement of this order." This order was set aside by the Supreme Court on 21st February, 1988 and the case was remanded for a fresh decision. The instant order will dispose of the application dated 11th October, 1984 which in fact is a follow up action of the applicant in view of the order of the learned Judge of the High Court dated 8th October, 1984.

6. I have heard the learned counsel for the parties and perused the record. The only point canvassed by the learned Counsel for the non-applicant is that the Court had become functus officio after passing the order dated 11th July, 1984 and no extension could be granted for deposit of the decretal amount. The learned counsel further stated that the Court had lost the control of the case after its adjudication, hence the decree in favour of the applicant had abated. He, in support of his contention, cited P L D 1966 S C 983, 1970 S C M R 502, 1986 SCMR849and1976SCMR

802. The learned counsel for the applicant, controverting the assertion of the learned counsel for the non-applicant, stressed upon the fact that the application for enlargement of time was presented before the Court on 8th October, 1984 when the applicant had still a full day at his disposal to deposit the decretal amount in view of the order of the Court and the Court had still seisin over the matter in controversy. He cited P L D 1983 S C (A.I&K) 174 in his support. The authorities cited from both sides are unanimous on the point that. Court can enlarge the period only if it has control over the case.

7. The power of a Civil Court to enlarge the time for the doing of any act, is regulated by section 148 of the Civil Procedure Code. The provisions of the section read: "...Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period even though the period originally fixed or granted may have expired." A plain reading of the section reveals that if the time is granted by the Court, it may extend it from time to time. The power may be exercised on the basis of an application, suo motu or on the oral prayer of a party. The right of pre-emption, no doubt, is recognised as a part of Muslim Law, but is predatory in nature as it substitutes a rightful vendee. In view of its nature, the Code of Civil Procedure has prescribed a special procedure for decrees in pre-emption suits. Order 20, Rule 14, Civil Procedure Code, regarding the same, postulates: " (1) Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase-money has not been paid into Court, the decree shall-- (a) specify a day on or before which the purchase-money shall be so paid, and (b) direct that on payment into Court of such purchase-money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have secured from the date of such payment, but that, if the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with costs." The rule quoted above relates to the Court which decrees the suit and if a pre-emption decree is challenged in appeals, the orders of all the Courts merge in the order of final appellate Court and the latter only can enlarge the time in such a case. The powers of the Court, in view of section 148 of the Civil Procedure Code, seem unfettered and the time can be enlarged even if it has expired. The superior Courts, however, have interpreted the provision to mean that the discretion of enlarging the time can only be exercised if the Court has control over the matter and not otherwise. Reference can be made to P L D 1983 S C (AJ&K)

174. The test of determining as to whether the Court has control over the matter or not, is better replied by Mr. Justice Hamood-ur-Rehman in Shah Wali's case reported as P L D 1966 S C 983 (1000) in these words:

"The real test, in my view, is whether the decree has been made in such terms as to indicate that the Court has finally disposed of all matters so that it is to operate automatically or whether the Court has still retained some control over the litigation. An examination, therefore, has to be made of the precise terms used in the decree. In the present case, the decree of the trial Court used the words that in the event of default the suit "will be dismissed". These are not words of automatic operation, for, they contemplate a further order dismissing the suit. But the District Judge in the appellate decree made good this defect by stating that in the event of default the suit `will be treated as dismissed'. These words were capable, in my view, of operating automatically without any further order by the Court."

8. Viewed on the touchstone of the lest laid down in the above-quoted precedent, the order of the High Court dated 11th July, 1984 whereby the period for depositing the pre-emption money was fixed as 8th October, 1984 the learned Judge in the chamber has not ordered the dismissal of the suit in case the applicant failed to deposit the same. The Court, in the circumstances, still retains seisin over the action. Even otherwise, the language of Order 20, Rule 14, sub-rule (1)(b), i.e. ",,,,,,the suit shall be dismissed with costs", unequivocally suggests an action in future i.e. happening of the event on a specified day, as mentioned in Order 20, Rule 14, sub-rule (1)(a). The appropriate order has to be recorded by the Court on the day so fixed. The legislature has very wisely couched the words. The intention seems to vest the Court with the discretion of helping a bona fide decree-holder to be benefited by the fruits of his decree by the indulgence of the Court in enlarging the period if, on account of any reasonable cause, he is not able to deposit the pre-emption money within or on the specified day. The provision confers a guided discretion in the Court. That is why a conscientious lag of period is stipulated from the date of passing of the order fixing the amount of pre-emption money and the date of its payment in the Court. This lag of period clearly visualises that the Court ought to wait till the order is complied with or otherwise. The final order is to take its shape on that date. The Court, in the instant case, could pass an order of dismissal of the suit (appeal being a continuation of suit) on 8th October, 1984 had the applicant failed to deposit the amount or enlarge the period, if prayed for, as in the instant case.

9. The applicant has rightly invoked the jurisdiction of the Court. The Courts below should have reported back to the High Court for proper orders as it was only the High Court, which was seized with the matter on 8th October, 1984. Moreover, the learned Judge in the chamber, while entertaining and forwarding the application to the District Judge, gave a genuine belief to the applicant of enlargement of time, otherwise a full day was left with the applicant to arrange and deposit the amount. No one can be made to suffer for the fault of Court. The applicant has been fighting the war of litigation since 1977 and has successfully won it on merits, in spite of being besieged in strict legal provisions relating to' law of pre-emption. The victory cannot be allowed to frustrate on technicalities.

10. The learned counsel for the applicant has stated that the pre-emption money has been deposited on 16th June, 1986 in the Court of Sub-Judge, Pallandari, in compliance with the order of this Court, dated 26th April, 1986 which was set aside, on appeal, by the Supreme Court and is succeeded by this order on remand. The order having been substantially complied with, the decree in favour of the applicant has become finally operative. In the circumstances of the case, the application succeeds and is hereby accepted with costs. A.A./471/H.CA. Application accepted.