1999 PLP 1999 (SCMR)

MUHAMMAD BASHIR JEHANGIRI, J.

This appeal by leave arises out of a judgment of a learned Single Judge of the Lahore High Court, Lahore whereby writ petition filed by Ghulam Rasul respondent-vendee was accepted, the impugned order dated 8-9-1987 passed by the learned revisional Court (Additional District Judge) was set aside and that of the learned trial Court dated 24-1-1987 non-suiting the pre-emptor/appellant herein for his failure to deposit pre-emption money within the stipulated time was restored.

2. The circumstances in which this order came to be passed may be briefly stated as follows:

3. Ghulam Rasul respondent No.2 purchased land measuring 11 Kanals and 10 Marlas in village Budha Dharag, Tehsil Narowal. Muhammad Yousuf appellant pre-empted the aforementioned sale of land. As respondent-vendee did not enter appearance in the trial Court, the suit was decreed ex parte on 6-7-1982, directing the appellant to deposit pre-emption money inclusive of Zar e-Panjam before 19-9-1982 failing which the suit shall stand dismissed. On 8-7-1982 respondent-vendee moved an application for setting aside ex parte decree. The appellant-pre-emptor, however, failed to deposit the pre-emption money amounting, to Rs. 15,000 inclusive of Zar-e-Panj am before 19-9-1982. On 2-10-1982 application filed by respondent-vendee for setting aside ex parte decree was accepted subject to payment of cost amounting to Rs.50 The respondent-vendee did not even deposit or pay to the appellant-pre-emptor the cost of Rs.50. On 10-6-1984 the respondent-vendee sought to withdraw his earlier application for setting aside ex parte decree but the learned trial Judge rejected the application on the ground of non-payment of cost. On 12-6-1984, when the original time had expired on 19-9-1982, the appellant-pre-emptor made an application seeking fresh time for deposit of pre-emption money including Zare-e-Panjam. The learned trial Judge, however, dismissed this application by order dated 24-1-1987 as, according to him, he had become functus officio. On 8-9-1987 the respondent/vendee challenged the aforementioned order before the learned Additional District Judge through Civil revision. The learned Additional District Judge exercising the powers of revisional Court observed that the respondent-vendee was "justified for non-deposit of the pre-emption money" inasmuch as "it was the act of the respondent by moving the petitioner under Order IX, Rule 13, C.P.C., and of the Court for fixing next date as 2-10-1982, when ex parte decree was set aside, that prevented the petitioner from making the deposit of pre-emption money. " The learned revisional Court, therefore, concluded that the respondent-vendee could not take benefit of his own fault by sealing the petitioner's fate for non-deposit of pre-emption money. It was further held that it was "quite unjust and unfair to make statement for withdrawal of the petition under Order IX, Rule 13, C.P.C. after expiry of about two years on 10-6-1984, against the interest of the petitioner, therefore, the appellant-pre emptor was precluded from depositing the pre-emption money, because of the act of the respondent and the order of the Court. In this background, the revision petition filed by the appellant-pre-emptor was accepted, the impugned order dated 29-1-1981 refusing to grant extension by the trial Court was set aside and extension for depositing pre-emption money amounting to Rs. 15,000 inclusive of Zar-e-Panjam was extended upto 18-9-1987 failing which the appellant's suit would stand dismissed.

4. Feeling aggrieved Ghulam Rasool, respondent-vendee challenged the order dated 8-9-1987 in the Constitutional jurisdiction of Lahore High Court.

5. The learned Single Judge who was seized of the writ petition placed reliance of Shah. Wali v. Ghulam Din (PLD 1966 SC 983) and held that the order passed by the revisional Court was clearly without jurisdiction and, therefore, it could not have been sustained in law. It was also observed that the respondent-vendee had come to the Court with unclean hand inasmuch as the appellant was bound to comply with the terms of the decree as required by Order XX, Rule 14, C.P.C. and deposit the pre-emption money within the time stipulated in the decree. Having failed to do so, the respondent-vendee was not entitled to raise the question of the conduct of the appellant in the Constitutional petition. The impugned order of the revisional Court dated 8-9-1986 was set aside and the order passed by the learned trial Court was resorted.

6. Leave to appeal was granted to consider whether the learned Judge in Chambers of the High Court was justified in interfering with the above judgment of the learned Additional District Judge.

7. Mr. Shaukat Ali Mehr learned Advocate Supreme Court in support of this appeal contended on the authority of Ahmad Bakhsh and another v. Khurshid Akbar Khan and two others (PLD 1978 Lahore 838) that in an appeal before it, an appellate Court has the power to fix a date by which pre-emption money may be deposited even if the time allowed by the trial Court has by then expired, and the suit has already stood dismissed for non-compliance of the decree of the trial Court. In this context it was observed by the learned Single Judge in the High Court in the precedent of Ahmad Baksh and another (supra) that it was accepted principle that in an appeal before it an appellate Court has the same powers and is capable of performing, as nearly as may be, the same duties as are conferred and imposed by law on Courts by original jurisdiction in respect of suits, instituted therein. According to the learned counsel for the appellant. The learned Single Judge in the High Court was, therefore, not justified to have placed reliance on the precedent of Shah Wali.v. Ghulam Din alias Gaman and another (PLD 1966 SC 983) because the law enunciated therein was not attracted to the facts of the present case and we tend to agree with him. The proposition that was convassed in the Supreme Court in the case of Shah Wati (supra) was whether extension of time could be granted to a successful pre emptor on appeal against an order of refusal to extend the time for depositing pre-emption money when the original decree was not under appeal. It was held that unless in an appeal from the decree itself, the time fixed for deposit of the pr e-emption money is varied, it seems that the successful pre-emptor can disregard the time limit fixed in the decree, at his peril.

8. It would, thus, be noticed that the statement of law noted above in the precedent of Shah Wali is distinguishable on facts from the case in hand. In the instant case the admitted position is that before the target date fixed for deposit of pre-emption money in pursuance of the ex parte decree, i.e. 19-9-1982 the ex parte decree was set aside exactly on 19-9-1982 on or before which the pre emption money was directed to be deposited. For all practical purposes, this suit became pending, therefore, in the interest of justice the trial Court ought to have extended the time for deposit of pre-emption money when it was so approached by the appellant/pre-emptor. We approve the law propounded in the case of Ahmad Bakhsh (supra) that in an appeal before it, an appellate Court is vested with the powers to fix a date by which pre-emption money may be deposited even if the time allowed by the trial Court has by then expired, and the suit has already stood disimissed. for . non-compliance of the decree of the trial Court.

9. We have been able to lay our hand on a precedent of this Court in Malik Hadayatullah and 2 others v. Murad Ali Khan (PLD 1972 SC 69) wherein like the case in hand, the learned Judge in the High Court thought that there was no ground at all for granting an extension although it was argued before him that in that case the Court had made it practically impossible for the appellants therein who were plaintiffs in the pre-emption suit, to comply with the order for making the deposit within the time originally fixed by the Court by its own action, namely, the adjournment of the application for furnishing security instead of making the deposit in cash from the 6th of December, 1967, to the 6th of January, 1968, on which date the pre-emption suit itself was fixed for hearing and further that if the Court had not done so but had disposed of the application soon after it was filed, the present difficulty would not have arisen and the Pre emptors would have had sufficient time to make the deposit in cash. in the instant case also the learned trial Judge had himself rendered it impossible for the appellant who was the plaintiff in the pre-emption suit to comply with the within the time originally fixed in the ex parte order for making the deposit decree itself by its own action, namely, setting aside of the ex parte decree on' 2-10-1982 much after the aforesaid target date of 19-9-1982. If the Court had not set aside the ex parte decree on 2-10-1982, the present difficulty would not have surfaced and the appellant would have had ample time to make the deposit in compliance with the order embodied in the ex parte decree. The revisional Court had the power to extend time even after the expiry of the period originally fixed unless statute prohibited this or unless the order had become final and rendered the Court functus officio. In the instant case, the learned Judge in tile High Court has erred to hold that the trial Court was rendered functus officio because when the ex parte decree was set aside the Court came to be seized of the matter and, therefore, was not rendered functus officio. We reiterate the general principle enunciated in the case of Malik Hadayatullah (supra) that where by an order, time is fixed by a Court for doing any act, the Court can grant extensions from time to time till it ceases to have jurisdiction over the' matter or loses seisin of the matter. The learned Additional District Judge exercising the revisional jurisdiction fixed another date for depositing the pre emption money which had been already fixed by the trial Court in the original ex parte decree. Since the learned Additional District Judge in this case had extended time for deposit of pre-emption money in the circumstances of the case, we are clearly of the view that the High Court grievously erred in holding that the learned Additional District Judge had no jurisdiction at all to grant the extension of time. Reference may be made to subsection (4) of section 22 of the Punjab Pre-emption Act (I of 1913) (since repeated). We are, thus, fully satisfied that this appeal must succeed and we, accordingly, allow the same with costs, set aside the order of the High Court and restore that of the revisional Court. The suit should now be taken up for hearing and disposed of as expeditiously as possible. Let the records be sent down immediately. Costs to follow the event. if the appellant-pre-emptor had not already deposited the pre-emption money, he is allowed to do so within three months from today. H.B.T/M-325/S Appeal allowed