2001 PLP 542 (MLD)

(iii) It is pertinent to mention here that the trial Court framed issue No.2 in the following terms:‑‑ "Whether Rs.74,400 was actually fixed and paid as price of the suit land?." (iv) Issue No.2 was decided by the trial Court by consent of parties on Holy Qur' an. Learned counsel for respondent No.1/plaintiff and the respondent/plaintiff had given offer that the respondent/plaintiff would pay any price money for the land in question if the vendee/defendant No.1 stated on Holy Qur'an. Offer was accepted and the price was determined as Rs.69,500. (vi) Respondent/plaintiff had challenged the aforesaid decree in respect of price of a land only before the District Judge Kasur. (vii) The District Judge Kasur suspended the operation of the decree vide order, dated 25‑5‑1987. (viii) Appeal was dismissed vide judgment and decree, dated 7‑11‑1987. (ix) Respondent deposited the price on 15‑12‑1987 (x) Respondent No. l filed execution petition before the trial Court and the respondent filed objection petition that the respondent No.1/plaintiff did not deposit the decretal amount within the prescribed period by the trial Court before 10‑6‑1987. (xi) The objection petition was dismissed by the trial Court vide order, dated 8‑10‑1989 in the following terms:‑‑ "Since no time limit was given by the appellate Court, therefore, it would be presumed that the plaintiff/decree holder was bound to deposit the disputed amount within a reasonable time." (xii) Whereas appeal was dismissed by the Additional District Judge in the following terms: "The decretal amount was finally deposited by the respondent/decree holder on 15‑12‑1987 after a period of 5 years from 7‑11‑1987 on which the appellate Court dismissed the appeal of the respondent/pre‑emptor which is in my opinion was quite reasonable time. " (xiii) In case the aforesaid dates are put in a juxtaposition then the respondent No.1 had still 24 days at his disposal for deposit of balance pre‑emption amount on dismissal of his appeal in accordance with the terms of the judgment and decree, dated 11‑5‑1987 till 26‑I1‑1987 but the respondent No.1 deposited the same on 25‑12‑1987, after 18 days. The sole question that the determination by this Court is to be decided whether the Courts below was justified to dismissed the objection petition on the ground that respondent No. l deposited the balance pre‑emption amount within a reasonable time or not. The Hon'ble Supreme Court has considered the aforesaid proposition of law in Shah Wali's case PLD 1966 SC 893 and the relevant observation is as follows:‑‑-- "This being the position in law, unless in an appeal from the decree itself, the time fixed for deposit of the pre‑emption money is varied, it seems to me, that the successful pre‑emptor can disregard the time‑limit fixed in the decree, at his peril. He might, of course, consider that the time allowed for payment by the trial Judge was too short, or that the pre‑emption money fixed was excessive. In such a case, he might anticipate that the appellate Court would interfere, in the course of the appeal, with the decree and might give an extension of time for deposit of the correct amount. But if his anticipation is not realiased in this regard and he has failed to deposit the money within the time fixed by the Court of first instance, the result must be that his suit would be dismissed. The same would be the position if the necessary deposit is not made within the extended time fixed by the appellate Court, as happened in the present case." The Hon'ble Supreme Court has also considered the aforesaid proposition of law in Khurshid Akbar's case 1982 SCMR 824 and relevant observation is as follows:‑‑ "Six days were yet at the disposal of the appellant to obey the order of the lower Court on the date on which the operation of the decree was suspended which means that within six days from the disposal of the appeal, the petitioner would deposit the pre‑emption money fixed by the lower Court. No ground have been given why the petitioner could not deposit the pre‑emption money within six days of the appeal. "This view was not interfered with by the High Court and we do not think that the High Court acted illegally or arbitrarily in refusing to interfere with the order of the learned District Judge." The aforesaid Khurshid Akbar's case was subsequently considered by the Hon'ble Supreme Court in Bhai Khan's case 1986 SCMR 849 and re affirmed the earlier view. The Division Bench of this Court also followed the same view in Bashir Ahmed's case 1998 MLD 1789. The judgment cited by the learned counsel for respondents are distinguished on facts and law. Haji Ishtiaq's case 1976 SCMR 420 laid down the following principle:‑‑ "There being no specific, order by the appellate Court granting extension of time for this purpose, the deposit should have been made within a reasonable time, but it was not made until the 6th of June, 1969. No explanation was furnished by the pre‑emptor for her failure to make the deposit of a period of one month and 8 days after the dismissal of her appeal." The case of Kisan Dewaloo Mali (AIR 1939 Nagpur 279) has also no relevancy. In the cited case the Court allowed the pre‑emptor one month time i.e. extended one month time. Learned counel for the respondents also relied upon Muhammad Nawaz's 1995 SCMR 105 has also relevancy, as the first appellate Court extended the time for the deposit of the balance of sale price by pre‑emptor. Muhammad Shamoon's case PLD 1984 SC (AJ&K) 94 supported the contention of the learned counsel for the respondents and the relevant observation is as follows:‑‑ "There being no specific order by the appellate Court granting extension of time for this purpose the deposit should have been made within a reasonable time i.e. within 30 days after the decision of appeal but it was not made until 24‑7‑1977.' The aforesaid case was decided by the Supreme Court of Azad Jammu and Kashmir whereas our Supreme Court of Pakistan in Khurshid Akbar's case supra decided otherwise (1982 SCMR 824). Even otherwise this case is also distinguished on the ground that in the present case respondent No. I had still 18 days at his disposal for deposit of balance pre‑emption amount, but respondent No. l did not bring on record any ground why respondent No. l could not deposit the requisite amount within 18 days. Judicial concept law is that provision of pre‑emption law must strictly to be complied with to attract A its rigour and even the technicalities, therefore, are also relevant provisions of law person, who wishes to avail himself of a right under such law, is required to be vigilant and see that he complied with all the conditions imposed upon him, The Hon'ble Supreme Court has considered Shah Wali's case. Subsequently in Haji Nawab's case 1976 SCMR 502 and laid down the following principle:‑-- "In any event, it is clear that no relief could be granted, because if the decree of the trial Court stated that in the event of the default in the payment the suit "shall stand dismissed, then, on the happening of the default, the decree became operative of its own force and the time fixed thereunder could not be extended thereafter." It is pertinent to mention here that price was determined and fixed by the Trial Court at the time of decreeing the suit of respondent No. l by the consent of parties on Holy Qur'an, i.e. offer was made by the petitioners counsel and accepted by the respondents meaning thereby issue No.2 was decided between the parties by mutual consent. It is also admitted fact that respondent No. l challenged‑ the decree to the extent of price before the District Judge which was dismissed. This fact brings the case of respondent No. l in the area that respondent No. l did not have sufficient amount to deposit the same when a specific period has fixed by the trial in its judgment and decree, dated 11‑5‑1987, therefore, respondent No.1 before District Judge to gain time to comply the direction of the trial Court. Both the Courts below have decided case in violation of law laid down in Bhai Khan's case 1986 SCMR 846 and the relevant observation is as follows:‑‑ "We share the view of the High Court that the pre‑emptor did not have sufficient funds and was merely interested in gaining time by ‑fling the appeal having hardly any merit and it was therefore, not in the interest of justice to have extended time in favour of the pre‑emptor in this case for depositing the pre- emption amount. " It is settled law that it is only when the full sale price is deposited in accordance with the judgment and decree of the Court then title passes to the successful pre‑emptor by virtue of Order XX, Rule 14(1)(a) of C.P.C. It is also settled principle of law that respondent No. l has no right to file appeal before the District Judge against the issue No.2 which was decided by the consent of the parties by virtue of section 96(3) and the law laid down by the superior Courts in the following Judgment:‑‑ "(1974 SCMR 224) Salim Ahmad's case. (PLD 1970 SC 241) Muhammad Akbar's case. (PLD 1970 SC 311) Mehr Din's case. In view of what has been discussed above, this writ petition is accepted and orders of the Tribunal below are set aside and objection filed by petitioners are accepted and the suit of respondent No. l is dismissed. There is no order as to costs. H.B.T./M‑426/L Petition accepted.