P L D 1979 Peshawar 17 (PLP)

Date of hearing : 7th November 1978. Briefly, the facts giving rise to this second appeal may be stated as under : The plaintiff respondent brought pre-emption suit against the appellant herein. The learned Civil Judge directed the plaintiff to deposit the sum of Rs. 30,000 up to 2-2-78. He moved an application on 26th January, 1978 praying to be allowed to deposit Rs. 10,000 in cash and to furnish security in respect of the remaining amount. This application was, however, rejected on the same date, i. e. 26th January, 1978. The plaintiff respondent then moved another application praying for the extension of time for the deposit of the pre-emption money. Vide order dated 3-1-78 the learned Civil Judge allowed this application and extended the time up to 9-2-78. As stated above, the application of the plaintiff respondent dated 26th January, 1978 that he may be allowed to deposit the sum of Rs. 10,000 in cash and to furnish security in respect of the remaining amount was rejected by order of the same date (viz. 26th January, 1978). Against this order, the plaintiff-respondent preferred appeal before the learned Addl. District Judge. Along with the appeal, he also filed an application for the suspension of the order of the learned Civil Judge dated 26th January, 1978. The learned Add]. District Judge granted this application and directed that until the disposal of the appeal before him, the order of learned Civil Judge dated 26th January, 1978 shall remain suspended. The appeal came up for hearing before the learned Addl. District Judge on 19th February, 1978. A preliminary objection was raised about the competency of the appeal which prevailed with the learned Addl. District Judge and consequently he dismissed the appeal as incompetent but directed the plaintiff respondent to deposit the pre-emption money upto 31-3-78, vide his order dated 20-3-78. It may be mentioned that the plaintiff/respondent in compliance with this order accordingly deposited the pre-emption money. It is contended by the learned counsel for the appellant that once the learned Addl. District Judge held that the appeal of the plaintiff respondent before him is incompetent, he could not grant time to the plaintiff respondent up to 31-3-1978. In other words, his submission is that since the plaintiff-respondent failed to comply with the order of the learned Civil Judge dated 3-1-78 by which he was directed to deposit the pre-emption money upto 9-2-78, his suit, therefore, stands dismissed. I have not been able to appreciate this contention. It is true that the learned Addl. District Judge held the appeal of the plaintiff-respondent as incompe tent. Yet the plaintiff-respondent should not suffer by the act of the Court. The law is well settled in this respect that a party must never suffer by the act of the Court. The learned counsel for the plaintiff-respondent referred to P L D 1978 Lab. 438 to show that the time extended by the learned Addl. Sessions Judge in this case cannot be questioned. In that case, the trial Court directed the pre-emptor to deposit the decretal amount by 23rd May, 1978. The pre-emptor went in appeal before the High Court challenging the decree of the trial Court. The High Court dismissed the appeal. He then filed petition for special to appeal in the Supreme Court and also filed an application for the extension of time in regard to the deposit of decretal amount upon which the Supreme Court passed the following order on 19th January 1977 :- "Time for depositing the decretal amount is extended by one week, i. e. up to and including the 26th of January, 1977, subject to all just exceptions." In compliance with this order, the pre-emptor deposited the decretal amount accordingly. The petition for special leave to appeal came up for bearing on 26th January, 1977, before the Supreme Court when it was dismissed. Thereafter, an objection was raised that as the supreme Court dismissed the petition for special leave to appeal and as its order dated 19th January, 1977 extending the time for the deposit of decretal amount up to 26th January, 1977, was "subject to all just exceptions", the pre-emptor could not avail of the time extended by the Supreme Court and hence his suit would be deemed to have been dismissed. This question was considered by a learned Single Judge of the High Court in the above reported case and his Lordship held that as the pre-emptor appellant did pay up the pre-emption money by the date extended by the Supreme Court, the executing Court, in the circumstances, should have executed the decree. It will thus be seen that if in the peculiar-circumstances of the case, it is found that plaintiff pre-emptor had acted according to the direction of a higher Court in depositing the pre-emption money beyond the date fixed the trial Court, no grievance can be made against him that he has failed t B comply with the order of the trial Court. for in that event he cannot said to have disobeyed the order of the trial Court. In the circumstance I, therefore, do not see any reason to interfere with the impugned order of the learned Addl. District Judge directing the plaintiff respondent to deposit the pre-emption monay up to 31-3-78 which order he accordingly obeyed. This appeal, therefore, fails and is dismissed. Under the circumstances, however, there would be no order as to costs. S. A. H. Appeal dismissed.