2004 PLP 795 (CLC)

Pervaiz Inayat Malik for Petitioner. Fazal Miran Chohan for Respondents Nos. 1 and

2. Saleem Akram Ch. for Respondents Nos.4 to

10. Nemo for Respondent No.

11. Date of hearing: 6th November, 2003. A suit to pre‑empt the land subject‑matter of the litigation instituted by the late Ch. Dewan Bakhsh was decreed by the Assistant Commissioner/Collector Shakar Garh on 21‑6‑1984 with the direction "to pay the decretal amount after deducting amount of Zar‑e‑Panjum already deposited by him within one month of this order and decree otherwise the decree shall void". Both sides filed appeals there-against which were dismissed by the learned Additional Commissioner (Revenue), Gujranwala Division Gujranwala on 9‑4‑1985, observing that "the appeal of Dewan Bakhsh plaintiff/pre‑emptor/decree‑holder will not survive and is dismissed hereby as his suit stood dismissed". That order was assailed by Ch. Dewan Bakhsh only in revision before the Board of Revenue which was dismissed on 26‑6‑1985. Writ Petition No.4286 of 1985 was then filed by him which was allowed on 19‑10‑2000. The operative part thereof reads as under:‑‑ "After hearing the learned counsel for the parties and gone through the law on the subject I am of the view that this question has to be answered in favour of the petitioner pre‑emptor. In law if the time granted by the trial Court expires during the pendency of an appeal the same can be extended by the Appellate Court if the matter is pending adjudication. If the pre‑emptor has challenged the price at which the property had been sold he is entitled to have a decision on the merits of this claim. This rule stands settled by the Supreme Court of Pakistan in its judgment reported as Shah Wali v. Ghulam Din alias Gaman and another PLD 1966 SC 983, and was followed by a Division Bench of this Court in Muhammad Ismail v. Muhammad Ashraf PLD 1982 Lah.

197. The Additional Commissioner while dismissing the suit had referred to a decision of a Division Bench of this Court in Muhammad Siddiq v. Mst. Shakeela Jamil 1983 CLC 1705 but that case is distinguishable on facts inasmuch as the Appellate Court had specifically refused to stay the operation of direction to deposit the pre‑emption money. Unfortunately the attention of the learned Judges was not drawn to Shah Wali's case (supra) as also the judgment of the Supreme Court in Muhammad Shabbir v. Bashir Ahmad 1974 SCMR

24. In view of what has been stated above, this petition is allowed, the impugned judgments and decrees are set aside and the case is remanded back to the Commissioner for decision of the matter afresh."

2. Pursuant thereto the matter was taken up by the Executive District Officer (Revenue), Narowal who vide order, dated 3‑10‑2001 accepted the appeal of Dewan Bakhsh to the extent that "he has a superior right of pre‑emption over the defendants regarding the suit‑land. The original suit filed by the appellant stands accepted and is decreed in proportionate sum of Rs.31,

350. The appellant/plaintiff is directed to pay deposited amount after deducting Zar‑e‑Panjum within 15 days from the date of this judgment. This order was assailed by the petitioner before the Board of Revenue which revision petition has been dismissed vide order, dated 31‑10‑2002. The present petition under Article 199 of the Constitution thus has been filed before this Court.

3. The case was still at the motion stage but as the parties are represented, their learned counsel have been heard at length and I propose to dispose of the petition accordingly.

4. Insofar as the decree in favour of the pre‑emptor is concerned, in view of concurrent findings by all the Courts, there is no scope left for interference. As to the power of the Court in regard to the extension of time to deposit the pre‑emption money suffice it to observe that the Court can keeping in view the facts and circumstances of a case to allow extension in making deposit of the pre‑emption money. Judgment in the above writ petition was not assailed by anyone and has thus become final. It is thus, that the Appellate Court has extended the time. Reference in this context may be made besides Shah Wali's case PLD 1966 SC 983 to Nazir Ahmad v. Ghulama and another 1987 SCMR 1704. No illegality has been committed nor there is any jurisdictional error in the order to that extent which could warrant interference by this Court. There is, however, an important aspect of the matter which cannot be overlooked or ignored by the Court that the pre‑emptor had remained in possession of the land and had also not deposited the pre‑emption money which was required to be deposited in the year 1984. The contention of the learned counsel for the petitioner that without realizing the appreciation in the value of the land and the worth of money i.e. Rs.31,350 in 1984 the Executive District Officer, Narowal, has allowed the deposit of the same money in 2001, is not without substance. Thus, inequity has indeed occurred in this matter of which the Court cannot be oblivious. The Authorities below have not adverted to this essential aspect of the matter. which renders their orders to be judicially reviewed, being unjust, unfair and unreasonable. Thus, maintaining the original decree and order of the Executive District Officer, insofar as the pre‑emptor has been given extension in making deposit of the pre‑emption money, the matter is remitted to the Executive District Officer, Narowal to determine the equivalent worth of Rs.31,350 with reference to the date it was required to be deposited. Statedly the sum of Rs.31,500 has been deposited by the pre‑emptor soon after the order of Executive District Officer, whatever difference is found by him, will be ordered to be deposited within reasonable time. The petition is disposed of accordingly. Let the parties cause their presence before the Executive District Officer, Narowal on 1‑12‑2003. H.B.T./A‑23/L Order accordingly.