2016SCAJK206 (PLP)

CH. MUHAMMAD IBRAHIM ZIA, J.

The captioned appeal by leave of the Court is addressed against the judgment of the High Court dated 20.3.2011, whereby the appeal filed by the appellant has been dismissed.

2. The precise facts necessary for disposal of this appeal as stated are that respondents No.1 filed a pre-emption suit in the Court of Civil Judge, Sehnsa on 11.5.2007. The suit was decreed by the trial Court on 28.2.2008 and the respondent (decree holder), was directed to deposit the decretal amount along with costs of sale-deed, within a period of one month from the date of decree with the observation that in case of failure in doing the needful, the suit will be deemed as dismissed. Respondent filed an appeal before the learned Additional District Judge, Sehnsa on 28.3.2008 and statedly, on his application, an interim injunction was also issued by the first Appellate Court. The appeal was dismissed for non-prosecution on 7.10.2008 which was subsequently restored and finally vide judgment and decree dated 6.1.2010, dismissed. However, the first appellate Court, on its own accord granted two months' time to the respondent for depositing the decretal amount. The appellant, feeling aggrieved, challenged the judgment and decree of the learned Additional District Judge Sehnsa by way of appeal in the High Court on 5.3.2010. The learned High Court dismissed the appeal vide judgment and decree dated 20.3.2011 while holding that the 1st appellate Court has got powers to extend the time for depositing the decretal amount. The appellant has now challenged the propriety of the judgment and decree of High Court dated 20.3.2011 through the instant appeal.

3. Mr. Abdul Aziz Ratalvi Advocate, the learned counsel for the appellant, after discussion of necessary facts focused his arguments on the point that the appeal before the first appellate Court was dismissed for non-prosecution which was subsequently restored. No application for restoration of the order of interim injunction was made thus, it will be deemed that the order in respect of suspension of the operation of the decree of trial Court became non-existent. Thus, the suit filed by the respondent has to be deemed dismissed. The other point most forcefully argued is that as the appeal before first appellate Court was only for partial modification to the extent of the decretal amount, thus, such appeal cannot be treated as continuation of the suit. The appellate Court was not vested with the powers to extend the time to deposit the decretal amount. It is also urged that no quest was made for extension of time, thus, the sou motu extension of time by the first appellate Court is without lawful authority. The learned Advocate further argued that all these points were raised but have not been properly attended by the High Court. The impugned judgment is not maintainable, therefore by accepting this appeal the same be recalled. He placed reliance upon the cases reported as Maqsood Ahmed and others v. Member Board of Revenue, Punjab, Lahore and others [2007 SCMR 399] and Javed Iqbal and 5 others v. Social Welfare Department and 5 others [2004 SCR 435].

4. Conversely, Mr. M. Reaz Alam, Advocate, the learned counsel for respondent No.1 forcefully defended the impugned on the ground that the arguments of learned counsel for the appellant are misconceived and against law. According to the celebrated principle of law, when the appeal is restored, all the orders and proceedings including the interim injunction became operative. The argument of learned counsel for the appellant that as the appeal before the first appellate Court was only for modification to the extent of decretal amount, hence, cannot be treated as continuation of suit, is totally fallacious and against law. According to provisions of section 107, C.P.C, all the powers of the Courts of original jurisdiction in the suits vest in the appellate Courts. Under the provision of section 148 of the Civil Procedure Code, the Court is vested with the powers of enlargement of time for doing of any act prescribed or allowed by this Code. Under the provisions of Order XX, Rule 14 of the Civil Procedure Code, time for depositing the decretal amount is fixed and the enlargement of time is discretionary power of the Court. In support of his contentions, he referred to the cases reported as Khadim Hussain v. Muhammad Azam Satti [2007 CLC 404] Muhammad Mehrban v. Sadrud Din another [1995 CLC 1541] and submitted that this appeal has no substance which is liable to be dismissed.

5. We have considered the arguments of the learned counsel for the parties and also carefully examined the record made available. A perusal of record reveals that the trial Court vide judgment and decree dated 28.2.2008 directed the decree holder to deposit the decretal amount within one month's period. However, the decree holder filed an appeal and succeeded in obtaining the interim injunction for suspension of the order for depositing the decretal amount on 28.3.2008. Subsequently, the appeal was dismissed for non-prosecution vide order dated 27.10.2008. An application for its restoration was filed on 5.11.2008. and consequently, the appeal was restored. The first appellate Court granted two months' time for depositing the decretal amount. The appellant's appeal against this order has been dismissed by the High Court through the impugned judgment. The only objection raised in appeal before the High Court is regarding the grant of two months' time for depositing the decretal amount. Moreover, the time has been granted without request of respondent and against the pleadings. The learned single Judge in the High Court dismissed the appeal while observing that the first appellate Court was empowered to extend time.

6. The argument of learned counsel for the appellant that the time has been extended without any averment made in the pleadings or written request of the party has no substance. The powers available under section 148, C.P.C., can be exercised by the Court even without any application, suo motu or on an oral prayer. In this regard reference may be made to the case reported as Jahandad Khan v. Muhammad Arif Khan NLR 1991 CLJ 730 and Syed Iqbal Hussain Shah and 10 others v. Muhammad Naseem and another [2010 CLC 22].

7. According to the admitted facts, the judgment and decree of the trial Court fixing the time to deposit the decretal amount was suspended by the first appellate Court. The argument of the learned counsel for the appellant that the appeal was dismissed for non-prosecution and subsequently restored but no application for restoration of the application of interim injunction was filed, thus, the same became non-existent, has no substance. According to the principle of law when any suit or appeal is dismissed for non-prosecution and subsequently restored, the proceedings conducted in such suit or appeal before dismissal also stand revived. As the matter of grant of interim injunction is part of the proceedings of appeal, therefore, neither any separate application was required for restoration of such proceedings nor on restoration of appeal such order became non-existent, therefore, the argument stands repelled. Our this view finds support from the principle of law enunciated by the apex Court of Pakistan in a reported as Muhammad Saleh v. Muhammad Shafi [1982 SCMR 33], wherein it has been held as under:-- "

11. As for the second contention, it has been repeatedly held that once a suit or appeal, dismissed for default is restored by the order of the Court under Order IX, rule 9, C.P.C, all ancillary orders passed in the suit or appeal before the dismissal also stand revived and become operative since that date with all their legal implications. In Saranatha and others [AIR 1934 Mad. 49], case it was held that as a matter of general rule, where a suit dismissed for default is restored, all interlocutory orders also stand restored. This view was relied upon by the Sindh High Court in Abdul Rehman v. The Federation of Pakistan [PLD 1955 Sindh 248], while holding that an order of restoration under Order IX, rule 9, C.P.C., nor only restores the suit but also the interlocutory orders that may have been passed in plaintiff's favour. In that judgment Mr. Justice Inamullah Khan referred, with approval, to Chitaley's commentary under Order IX, rule 13, C.P.C. which is a pari materia provision. The relevant portion of the said commentary reads as follows:-- 'The effect of setting aside an ex parte decree is to restore the parties to the position they previously occupied and the Court should proceed to decide the suit as it stood before the decree . Any attachment that has been issued or any sale that has taken place in pursuance of the ex parte decree, become null and void ..' The same view was taken by the High Court of Patana in Bankim Chandra and others v. Chandi Prasad [AIR 1956 Pat. 271], and it was held that on restoration of the suit, all ancillary orders passed before its dismissal in default also revive and become operative with retrospective effect. We are, therefore, of the view that when the ejectment application was restored by the learned Rent Controller on 12.12.1979, the order for depositing monthly rent under section 13(6) of the Ordinance also stood revived with retrospective effect, and as such non-compliance with the same rendered petitioner's defence liable to be struck off."

8. The right of appeal is a statutory right of a party. Under the provision of section 107, C.P.C., the powers vested in the Courts of original jurisdiction are also available with the appellate Courts. The time for depositing the decretal amount is fixed by the Court under the provisions of Order XX, Rule 14 of Civil Procedure Code, whereas according to the provisions of section 148, C.P.C., any period fixed or granted by the Court for doing of any act prescribed or allowed by this Code including the period for depositing the decretal amount can be enlarged from time to time. On the legal proposition of enlargement of time, we have benefited from an authoritative judgment of the apex Court of Pakistan in the case reported as Muhammad Nawaz and others v. Muhammad Sadiq and another [1995 SCMR 105], wherein the comprehensive appreciation of the statutory provision of section 148, C.P.C. has been made in the following terms:- "

10. From the above referred case, inter alia, it is evident that the consistent view of this Court is that an appellate Court is competent to extend time for deposit of the pre-emption money either during the pendency of an appeal before it or at the time of disposing of the same notwithstanding that the time mentioned in the pre-emption decree for the said purpose may have expired. Furthermore, an appellate Court may extend time for the above purpose at the stage when an appeal is not admitted for regular hearing by it or a petition for leave to appeal is not granted and such an extension of time will not be nullified by the factum that appeal or the petition for leave to appeal is subsequently dismissed summarily. However neither a trial Court nor an appellate Court can extend time for matter stands disposed of and it is no longer pending before it. In such an event, the direction contained in the original decree to the effect that in case of failure to deposit the pre-emption money the suit shall stand dismissed, become effective. However, the above rule seems to be subject to one exception, namely, that if an appellate Court varies the finding of the Court below on the quantum of the pre-emption money, in other words it either increases or reduces the same, in that event, it should fix fresh reasonable time for deposit of the pre-emption money and in the absence of any such fixation the pre-emptor may deposit the same within reasonable time as has been held by Cornelius C.J. and Hamoodur Rahman , J., in the case of Shah Wali v. Ghulam Din alias Gaman and another (supra). It is also evident from the above reports that an appellate Court is not bound to grant extension of time in every case. The conduct on the part of a pre-emptor may disentitle him from pressing into service exercise of the above discretionary power by an appellate Court in his favour. It may be observed that it is difficult to categorize all the cases in which a pre-emptor will not be entitled to seek exercise of the above discretionary power in his favour by the appellate Court. It will depend on the facts of each case. If the sole object of a pre-emptor in filing of an appeal is to delay deposit of the pre-emption money, about the correctness of which, there cannot be any reasonable doubt, to a reasonable man, in such a case an appellate Court may decline to extend the time." In the referred case, the apex Court of Pakistan has also held that the application for extension of time can even be entertained by the appellate Court after expiry of the time allowed by the trial Court.

9. The case law referred to and relied upon by the learned counsel for the appellant being based upon distinguishable factual proposition hardly applies to the case in hand according to its peculiar facts. Whereas, the case law cited by the learned counsel for the respondent regarding power of attorney is not required to be discussed as the point agitated is not convincing one. Even, otherwise, we have decided the appeal on merits. The Courts below have rightly passed the orders and no illegality has been committed, hence, finding no force, this appeal stands dismissed. No order as to costs. ZC/16/SC(AJ&K) Appeal dismissed.