1983 PLP 1032 (CLC)

This revision petition calls in question the order dated 26th July, 1979 of the learned District Judge, Gujrat, in a pre‑emption matter.

2. The facts relevant for the disposal of his case are that res pondent No. 1 filed a suit for possession through pre‑emption, in respect of the disputed land, which was decreed by the trial Court vide judgment and decree dated 27th May, 1979, subject to the condition that the plaintiff shall deposit Rs. 7,500 towards. the pre‑emption money in the trial Court within two weeks from the date of announce ment of the judgment after adjustment of one‑fifth money, if any, deposited by him in the Court failing which the suit shall be deemed to have been dismissed.

3. This period expired on 11th June, 1979. Respondent No. 1 admittedly failed to deposit the amount by the stipulated date and instead deposited it on 12th June, 1979. Thereafter, an application was moved on 25th June, 1979 for execution of the decree. It was dismissed by the executing Court on 3rd July, 1979 on the ground that the respondents suit stood dismissed on account of his failure to deposit the sale price within the prescribed period. The respondent did not challenge this order of the executing Court and instead filed an appeal on 11th July, 1979, against the decree before of the appellate Court, which was admitted to a regular hearing on 11th July, 1979. Meanwhile the opera tion of the impugned decree was also suspended subject to notice to the respondents‑petitioners for 1st September, 1979. Prior to the hearing of the appeal, learned counsel for the respondent, made a statement on 26th July, 1979, before the appellate Court for withdrawal of the appeal with a prayer for grant of extension of time for depositing pre‑emption money as ordered by the trial Court in the impugned decree. The request of the respondent was allowed, the appeal was dismissed as withdrawh and the respondent was allowed to deposit the necessary sale price by or on 31st July, 1979. Thereafter, application for execution was moved and the respondent was allegedly handed over symbolic possession of the land, in dispute. 4, Learned counsel for the petitioners contended that the impugned order of the learned District Judge granting time to the respondent to deposit the pre‑emption money was wholly without jurisdiction, in that, the effect of withdrawal of the appeal was, as if it had never been presented. In support of this contention reliance was placed on Ram Prasad and another v. Ara Ram and others (I L R 1943 All. 288). In the precedent case a party filed an appeal against the decree and thereafter moved an appli cation for review of the judgment. After the review had been filed the applicant withdraw his appeal. It was held that the fact of the appeal having been filed and withdrawn was no bar to the hearing of the application for review, in that, the appeal which has been withdrawn must be treated as if it had never been presented within the meaning of Order XLVII, rule 1, Code of Civil Procedure.

5. Maulvi Ihsan‑ul‑Haq next placed reliance on the observation made by S. A. Rehman, J., in Shah Wali v. Ghulam Din and another (P L D 1966 S C 983) that, "the pre‑emptors's suit stood dismissed for his default in' making payment of the correct amount within the time fixed by the appellate decree and there was no question of extension of the time involved, either by the original Court or by the appellate Court thereafter, the appeal or revision from the appellate decree having already been dismissed."

6. Learned counsel for the petitioners further submitted that since respondent No. 1 failed to make the payment within the stipulated period, it has the effect of automatic dismissal of the suit and the suspen sion of the operation of the impugned decree by the appellate Court was of no consequence.

7. Sh. Izhar‑ul‑Haq, learned counsel for respondent No. 1, placed reliance on Khurshid Akbar v. Mian Manzur Ahmed and another (1982SCMR824), to con tend that where operation of the decree having been suspended by the appellate Court, unexpired period allowed by the lower Court for depositing pre‑emption money, re‑starts running from the date of dis missal of appeal.

8. The dictum laid down in Khurshid Akbar's case does not help the respondent. In the precedent case, at the time the appeal was decided by the appellate Court, the period for depositing the money fixed by the trial Court had not expired and therefore, it was not necessary to grant fresh period or to extend the time. It .was in this background that observation was made that operation of the decree having been suspen ded on application of petitioner, unexpired period allowed by the lower Court for depositing of pre‑emption money; re‑starts running from the date of dismissal of appeal. In the instant case, at the time, of filing the appeal the period for depositing the pre‑emption money fixed by the lower Court had not only expired but in terms of the decree the suit stood already dismissed. It appears that neither the appellate Court was conscious of this fact nor was this brought to its notice by .the respondent.

9. Sh. Izhar‑ul‑Haq next placed reliance on Muhammad Shabbir and others v. Bashir Ahmad (1974SCMRZ4.) to contend that in terms of section 22 of the Punjab Preemption Act (I of 1913) read with Order XX, rule 14 and section 148 of the Code of Civil Procedure (V of 1908), the time for payment of pre‑emption amount fixed by the trial Court can be extended by the learned District Judge by an interim order in the exercise of his appellate jurisdiction. In Muhammad Shabbir's case a question arose as to whether the appellate Court was competent to extend by an interim order the time for payment of the pre‑emption money as fixed by the trial Court. The answer was in the affirmative. It was held :‑ "The appeal before the District Judge was of right. As the appeal was a continuation of the suit, the learned Judge was fully com petent under section 151 of the Code of Civil Procedure to pass the interim order in question. The appeal having been filed on the very date the time fixed by the trial Court for the payment of the pre‑emption money was due to expire, a refusal to exercise such power would not only have been improper but could have had the effect of making the appeal itself infructuous, and depriv ing the respondent of his statutory right of appeal."

10. The ratio laid down in Muhammad Shabbir's case is not appli cable to the facts of the present case, which is clearly distinguishable, in that, in the instant case,, the appeal was filed after expiry of the time fixed by the trial Court for the payment of the pre‑emption money, whereas in the precedent case the appeal was filed on the last date for the payment of pre‑emption money as fixed by the trial Court.

11. Learned counsel for the contesting respondent next contended that no specific date for depositing the pre‑emption money was fixed by the trial Court but instead the pre‑emptor was ordered to deposit the amount within two weeks from the date of the judgment, and therefore, he was misled by the expression "two weeks". It is not possible to sustain the plea. The expression "two weeks" is very clear and means a space, of fourteen days. It does not suffer from any ambiguity.

12. Learned counsel for the respondent further argued that applying the rule of "reasonable time" as enunciated in Haji lshtiag Ahmad and 2 others v. Bakshava and 7 others (1976 S C M R 420), a pre‑emptor who has failed to make deposit within the time specified in the decree, granted to him by the trial Court, could be allowed to make the deposit within a reasonable time from the decision of the last Court. In the instant case, it is argued that default in the payment of pre‑emption money was of only one day which could have been condoned by the appellate Court by applying the principle of "reasonable time". There is no cavil with this proposition of law. This principle however, is not attracted in the present case. The effect of withdrawal of appeal by the respondent, as held in Ram Prasad's case, was that it had never been presented and therefore, no question arose, of extending the time as there was no live issue before the appellate Court. In view of the above, I hold that the impugned order of the learned District Judge, Gujrat, suffered from lack of jurisdiction, which is hereby set aside in so far as it relates to extension of time in depositing the pre-emption money fixed in terms of the decree of the trial Court. The revision petition is accepted with no order as to costs. W Y‑ H, Petition accepted.