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Petitioner: MUHAMMAD NAWAZ and others VS Respondent: MUHAMMAD SADIQ and another
Court Name: Supreme Court of Pakistan Judge(s): Fazal Karim, Fazal Ilahi Khan, Ajmal Mian Title: MUHAMMAD NAWAZ and others vs MUHAMMAD SADIQ and another Case No.: Civil Appeal No, 395 of 1992 Date of Judgment:1994-11-08 Reported As: 1995 SCMR 105 Result: Appeal allowed
JUDGMENT
JUDGMENT ' AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 29-2- 1992 passed by a learned Single Judge of the Lahore High Court in Civil Revision No, 272 of 1991 filed by the respondents against the judgment dated 20-6-1991 of the learned Additional District Judge, Islamabad, in Civil Appeal No, 106 of 1984 and Cross Appeal/Objections No,107 of 1984 filed by the appellants and the respondents respectively, whereby the appellants' above appeal was allowed and the respondents' cross-objections were dismissed in respect of the pre-emption dispute and extension of time for deposit of the balance of the pre-emption money was allowed up to 26-12- 1985 i,e. The date on which the respondents had deposited the balance of the price of the pre- empted suit property, allowing the same by setting aside the aforesaid judgment of the learned Additional District Judge by holding that the extension of time for deposit of the above balance amount was not justified and, therefore, the pre-emption suit stood dismissed on the expiry of the time allowed for deposit of the balance of the price. Leave to appeal was granted to consider, whether the learned Judge in Chambers fell into error in not following the law laid down by this Court in the case of Bhai Khan v. Allah Bakhsh (1986 SCM R 849) and in the case of Muhammad Irshad v. Ch. Fazal Haq (1991 SCM R 2149). 2. The relevant facts leading to the filing of the present appeal are that suit land measuring 3 Kanals 1 Marla bearing Khasra No, 111/2 comprising Khatooni No, 28, Khewat No, 19 being 19/20 share of the total land measuring 3 Kanals 4 Marlas as per Jamabandi for the year 1971-72 situated in the revenue estate of Trambri, Tehsil and District Islamabad, was owned by Muhammad Arif, who sold the same to respondent No, 1 (Muhammad Sadiq) for Rs,20,000 through a registered sale deed dated 10-12-1975. It appears that at the time of registration of the sale deed, respondent No, 1 paid
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Rs,9,500 before the Sub-Registrar and as regards the balance it was stated in the sale deed that it was already paid. It seems that before the appellants' predecessorin-interest, Muhammad Jee, filed the pre-emption suit in question, respondent No, 1 sold the suit land to respondent No, 2 (Mst. Bushra Khanum) on 29-7-1976 for a consideration of Rs,36,000 through a sale-deed. Muhammad Jee filed the above pre-emption suit on 10-12-1976 for pre-empting the original sale affected by Muhammad Arif in favour of respondent No, 1 on the basis of his alleged rights as co-sharer, owner of estate and tenant against respondent No, 1 alone. It appears that the above suit proceeded ex parte and an ex parte decree in favour of Muhammad Jee was passed on 16-5-1977 fixing the price of the suit land as Rs,9,500 and not Rs,20,000 as was mentioned in the sale-deed. The above sum of Rs,9,500 was deposited by Muhammad Jee as was ordered in the decree. It seems that respondent No, 1 filed an application under Order IX, Rule 13, C.P.C. For setting aside the above ex parte decree, but the same was dismissed on 25-10-1979. Thereupon, respondent No, 1 filed an appeal which was allowed on 11-11-1981 and the aforesaid ex parte decree dated 16-5-1977 was set aside and the case-was remanded to the learned trial Court after impleading Mst. Bushra Khanum, who was formally impleaded by the trial Court as defendant No, 2 on 26-5-1982. It may be pertinent to mention that before the above appeal was allowed, Muhammad Jee sold the suit land to one Hakeem Muhammad Fayyaz and his wife for a sum of Rs,1,00,000 on 21-5.1980. It appears that Muhammad Hafeez son of Muhammad Jee filed a pre-emption suit against the aforesaid purchasers, Hakeem Muhammad Fayyaz and his wife. It seems that while the above suit was pending, Muhammad Hafeez died leaving behind respondents Nos. 3 to 6 as his legal representatives. The aforementioned pre-emption suit was decreed but since no deposit of the pre-emption money was made, the suit was dismissed on 29-7-1982. It may also be stated that after the dismissal of the above suit, aforesaid Hakeem Muhammad Fayyaz and his wife made a gift of one Kanal out of the suit land in favour of Muhammad Jee. 3. Be that as it may, after the above remand order upon allowing respondent No, l's aforesaid appeal, the pre-emption suit of Muhammad Jee proceeded against respondents Nos. 1 and 2, but during the pendency of the suit Muhammad Jee died in December, 1983, leaving behind the appellants as his legal representatives. Eventually, the above suit was decreed on 31-3-1984 and inter alia it was held that the price of the suit land was Rs,20,000 and not Rs,9,500 as was claimed by Muhammad Jee. The trial Court directed Muhammad Jee to pay the balance price before 30-4- 1984. It appears that against the above judgment/decree dated 31-3-1984 the appellants filed Civil Appeal No, 106 of 1984 against the fixation of the price of Rs,20,000; whereas respondent No, 2 filed Cross-objections No, 107 of 1984. The learned Additional District Judge by his judgment dated 22-9- 1985 dismissed the appellants' above appeal and allowed respondent No, 2's aforesaid cross- objections and thus dismissed the aforementioned pre-emption suit inter alia on the ground of limitation. It appears that on 26-12-1985 the appellants, on their own, deposited the balance of the above price of Rs,20,000. They also filed Civil Revision No, 45-D of 1986, which was allowed by the Lahore High Court on 27-2-1991 and the case was remanded to the appellate Court for decision afresh on the appellants' above appeal and respondent No, 2's aforesaid cross-objections. After the above remand, the learned Additional District Judge heard the above appeal and cross- objections and through his common judgment dated 20-6-1991 allowed the appellants' aforesaid appeal and dismissed respondent No, 2's above cross-objections. While allowing the above appeal of the appellants, the learned Additional District Judge also extended the time for the deposit of the balance of sale price up to 26-12-1985 i,e. Up to the date when the appellants had deposited the balance amount after the aforesaid judgment dated 22-9-1985 of the learned Additional District Judge dismissing the appellants' aforesaid appeal and allowing respondent No,2's cross- objections. Thereupon, respondents Nos. 1 and 2 filed above Civil Revision No, 272 of 1991, which was
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allowed by the judgment under appeal. After that the appellants filed a petition for leave to appeal, which was granted to consider the above question. 4. The sole question which requires consideration is, as to whether the learned Additional District Judge while allowing the appellants' above appeal by his aforesaid judgment dated 20-6-1991 was competent in law to extend the time for the deposit of the balance of the sale price up to 26-12- 1985. 5. In support of the above appeal, Mr. Bashir Ahmad Ansari, learned Advocate Supreme Court appearing for the appellants, has vehemently contended that as the learned Additional District Judge was competent to extend the above time, the learned Judge in Chambers was not justified in interfering with the above exercise of discretion by the learned Additional District Judge. ' On the other hand, Mirza Anwar Baig, learned Advocate Supreme Court appearing for respondent No, 2, has candidly conceded that an appellate Court is competent to extend the time for deposit of balance of sale price in a pre-emption suit while disposing of an appeal, but he submitted that the discretion to extend time is to be exercised reasonably, fairly and justly, and since in this case it was not so exercised, the learned Judge in Chambers was justified in interfering with the above exercise of discretion. 6. Before dealing with the above contentions of the learned counsel for the parties with reference to the facts of the present case, it may be pertinent to refer to some of the judgments on the point in issue. ' The first judgment of this Court which needs consideration is in the case of Shah Wali v. Ghulam Din alias Gaman and another (PLD 1966 SC 983), which was decided by a Bench of five learned Judges headed by A.R. Cornelius, C.J. In the above report leading opinion was rendered by SA: Rahman, J. But A.R. Cornelius, C.J. And Hamoodur Rahman, J. While agreeing with the conclusion arrived at by SA. Rahman, J. Appended their separate notes. The brief facts of the case were that respondent No, 1 (Ghulam Din) filed a suit for pre-empting the sale of 6 Kanals and 4 Marlas of agricultural land. The suit was decreed by the trial Court on 21-2-1961 and a decree was granted to respondent No, 1 plaintiff subject to the condition that he had deposited in Court on or before 31-3- 1961 a sum of Rs,3,000 on account of preemption money including 1/5th already deposited by him under section 22 of the Punjab Pre-emption Act. It was also provided that failing completion of the above deposit by the due date, the suit was to stand dismissed with costs. Against the above judgment, the appellant/vendee filed an appeal, which was allowed and whereby the pre-emption money was enhanced to Rs,8,000 which was directed to be deposited within one month of the appellate decree dated 30-3-1962. Thereupon, respondent No, 1 plaintiff filed a second appeal in the High Court, which was treated as a revision owing to an amendment in the relevant law and the same was dismissed in limine on 9-10-1962. It appears that before 30-4-1962 which was the last date for deposit of the balance of preemption money as per above appellate judgment dated 30-3-1962, respondent No, 1 had deposited a total sum of Rs,7,076.25. Respondent No, 1 plaintiff also held a mortgage over the suit land to the extent of Rs,800 which he was entitled to deduct out of money to be deposited by him. It appears that even after including the above mortgage money of Rs,800 there was shortfall of Rs,123.75. ' On 22-5-1962 the appellant/vendee filed an application before the trial Court pointing out that in view of the above shortfall in the deposit of the pre-emption money, respondent No, l's suit was to be dismissed with effect from 30-4-1962. He also prayed for the costs out of the pre-emption money deposited in the Court. The trial Judge granted the above application and held that the suit stood dismissed and also granted Rs,5 as the costs to the appellant/vendee. Respondent No, 1 plaintiff applied for extension of time to make up the deficiency of the pre-emption money to the trial Court under sections 47 and 48 of C.P.C. But the learned trial Court dismissed the above application on 31-11-1963. Respondent No, 1 plaintiff filed an appeal against the above order, which
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was allowed by the learned District Judge, Jhelum, through his order dated 18-4-1963. He held that the suit of the appellant/vendee did not stand dismissed and ordered the deposit of the above balance of Rs,123.75 on or before 2-5-1963. The appellant/vendee challenged the aforesaid order by a revision petition in the erstwhile High Court of West Pakistan. The above revision was treated as a second appeal in view of West Pakistan Ordinance XLIV of 1962 but the same was dismissed by the learned Chief Justice by his order dated 5-9-1963. Leave to appeal was granted against the above order in view of the conflicting decisions in the High Court on the question, as to whether extension of time could be granted to a successful preemptor on appeal against an order of refusal to extend the time when the original decree was not under appeal. SA. Rahman, J. In his opinion held that since no appeal against the original pre-emption decree was pending before the District Judge, Jhelum, he was not competent to allow extension of time for the deposit of pre- emption money against the order of refusal of the trial Court to extend the time after , the matter was finally adjudicated upon earlier by the District Judge. It was also held that the order of the learned trial Judge to extend the time to deposit the pre-emption money was not appealable. It may be pertinent to reproduce the concluding part of the above opinion, which reads as follows:-- "After giving my full consideration to the facts and circumstances of the case, I have reached the conclusion that for the respondent's default in making payment of the correct amount within the time fixed by the appellate decree, his suit stood dismissed 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. I would, therefore, allow the appeal, set aside the order passed by the High Court, and hold that the respondent's suit stands dismissed, in terms of the decree of the Court of appeal. The appellant should have his costs in this Court and the Courts below." ' Cornelius, C.J. While agreeing with SA. Rahman, J.'s opinion inter alia observed as follows:- "It is conceivable that had a prayer in respect of this matter been raised before the High Court between the time that the second appeal was filed and the date 9th October 1962, when it came up for hearing, the High Court may within its powers, as appearing from the authorities cited, have granted relief by way of extension of time. But with the dismissal in limine, the situation developed that the High Court never became seized of the appeal and those powers did not fall to be exercised, nor could it be said that the order of the trial Court dismissing the suit was, in the circumstances, made in disregard of the superior jurisdiction of the High Court. There being in fact a shortfall, the condition that the suit would stand dismissed on the 30th April 1962, if the amount fixed by the District Judge was not duly deposited, came into operation, and although it may be regretted that a just claim which had been duly established was thus brought to a nullity, yet the claim being one for pre-emption, it is susceptible of being avoided for a technical fault." ' Cornelius, C.J. Also adversely commented upon the correctness of the view found favour with the Lahore High Court in the case of Sukhram Das v. Nazar Muhammad (ILR 6 Lah. 316), in which it was held that the pre-emption suit was liable to be dismissed for failure on the part of the pre-emptor to comply with the condition regarding payment of the pre-emption money contained in the decree dated 22-3-1916 of the trial Court, though the matter remained under litigation inasmuch as the vendee's first appeal was allowed and the pre-emption decree was set aside. In second appeal, the High Court restored trial Court's pre-emption decree through a judgment dated 2-2- 1920, but the time for the deposit of the pre-emption money was not fixed by the High Court. The pre-emptor deposited the same on 26-2-1920, which was found not in terms of the trial, Court's decree by the High Court, in the above report. Cornelius, C.J. Highlighted the various courses which were open to the pre-emptor/decree-holder in the facts of the above case as under:- "Speaking with respect, that is a conclusion with which I find myself unable to agree. The matter may have been corrected by obtaining from the High Court an order supplementing its appellate
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decree of the 2nd February 1920, by fixing a date for deposit of the pre-emption money. Alternatively, the rule of "reasonable time," laid down in the Nagpur case, cited above, may have been applied. If power could not be derived from any other source, I conceive that under section 151, Civil Procedure Code, the High Court would have been competent to make such an order as would not only advance the justice of the case, but also have the effect of giving validity to the High Court's own decree of the 2nd February 1920." ' Hamoodur Rahman, J. In his opinion referred to the various views of the High Court on the above controversy and pointed out that one view is that the time mentioned in the original pre-emption decree remained unchanged even if the appellate decree supersedes the decree under appeal as was held in the case of Sukhram Das v. Nazar Muhammad (Supra). He then referred to the second view, namely, that if the appellate decree is the only executable decree and it fixes no period for depositing the pre-emption money, the appellate decree must be deemed to have incorporated the terms of the decree appealed from with the difference that the period fixed will run from the date of the appellate decree as was held in the case of Rup Chand and others v. Shams-ul-Jehan (ILR 11 Allahabad 346). Finally he referred to the third view i,e. In the absence of any time fixed by the appellate Court for deposit of the pre-emption money, the same may be made within reasonable time from the date of the appellate decree as was held in the case of Guptar Tewari v. Debi Soran Tewari (AIR 1914 Allahabad 48) and the case of Kissan Dewaloo Mali v. Ganga Bai (AIR 1939 Nag. 279). After having referred to the above three views, he concluded as under:-- "Neither the first nor the second nor the last view appear to be based upon sound principles. If the first view prevails then the right of appeal would be rendered illusory unless the deposit has been made even if the pre-emptor is appealing against the quantum of the pre-emtion money or the reasonableness of the period fixed. The second view is on its face inconsistent, for, if the appellate decree has incorporated within it the terms of the decree appealed from how can the starting point of the period be deemed to have been varied by implication. The adoption of the last view would be clearly in disregard of the provision of Order XX, rule 14, Civil Procedure Code. In the circumstances, I would agree with my Lord the Chief Justice that the third view which appears to be more in consonance with reason and justice should be preferred so that inconsistencies are avoided and a successful pre-emptor is not deprived of the fruits of his decree unreasonably." 7. Next judgment which needs to be mentioned is in the case of Bhai Khan v. Allah Bakhsh and another (1986 SCM R 849), in which a Bench of four learned Judges of this Court, after referring the case-law, held as follows:-- "The rule deducible from the decisions of this Court appears to be that an appellate Court can extend the time for deposit of the pre-emption amount both during the pendency of the appeal before it as well as when it dismisses the appeal. Thus, the view of the learned District Judge that he had no power to extend the time for deposit of the preemption amount as the time given by the trial Court in its judgment, had expired, was erroneous. However, the High Court, in its judgment, did not accept the above view of the District Judge. On the contrary, it held that though it had the power to extend the time but that it was not disposed to do so in view of the facts and circumstances of this case, namely, that the appellant was guilty of gross negligence in not bringing his stay application to the notice of the learned District Judge and had mala fide contested the point of deficiency in the court-fee in order to prolong the appeal and thus to gain time. It was on account of these circumstances that the appellant was found disentitled to the exercise of the discretion for extension of time in his favour and not on the ground that the Court had no power to do so." ' The judgment was rendered by Nasim Hasan Shah, J. (as he then was). 8. Next case which may be mentioned is the case of Nazir Ahmad v. G hulama and another (1987 SCM R 1704), which was decided by a Bench of five learned Judges headed by Muhammad
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Haleem, C.J. The judgment was rendered by Muhammad Haleem, C.J. Leave to appeal was granted to consider: "firstly, whether the High Court was correct in holding that the appellant had waived his objection as to the non-deposit of the balance of the amount under the decree dated 25th of May, 1967 within time by his subsequent conduct in having consented to the passing of the compromise decree by the appellate Court on 17-10-1967, and, secondly that as the suit stood dismissed on 25-5-1967, the appeal had automatically abated and consequently the Additional District Judge had no jurisdiction to record a compromise and pass a decree on that basis." The following was concluded:- "To hold that if the amount, during the pendency of the appeal, was not deposited, the same became invalid as the suit stood dismissed, cannot be regarded as a valid proposition as an appeal is a continuation of the suit and the appellate Court has power in appeal to extend the time for depositing the pre-emption money in which event the original decree is varied to that extent. In Khurshid Akbar v. Manzur Ahmad (1982 SCM R 824), this Court observed: ' A perusal of the judgments relied upon before us shows that the view expressed in the recent pronouncements of this Court is that the time for payment of the balance pre-emption amount can be extended by the Appellate Court by an interim order passed during the pendency of the appeal or while dismissing it and that even this Court can do so pending the hearing and disposal of a petition for leave to appeal filed before it. In all these cases, however, the rule of 'reasonable time' will apply'." 9. The case of Ghulam Haider and others v. Mst. Raj Bharri and others (PLD 1988 SC 20) was also decided by a Bench of five learned Judges of this Court headed by Muhammad Haleem, C.J. The opinion was rendered by Zaffar Hussain Mirza, J., in which a review petition was allowed and the judgment of the Court rendered in the appeal was recalled as it was founded on the assumption that the suit stood dismissed on account of failure on the part of the pre-emptor to deposit the pre-emption money in terms of the original decree. The brief facts were that Ghulam Rasool and others sold their agricultural land to Mst. Raj Bharri and three others for Rs,12,000. Ghulam Haider pre-empted the sale through a suit on the ground that he was a superior right-holder as a co- sharer in the same Khata but his contention was that the sale consideration was only Rs,6,000 and not Rs,12,000 as was shown in the mutation. The trial Court decreed the suit holding the sale consideration to be Rs,7,215 and directed the plaintiff/pre-emptor to deposit this money by 22-6- 1965 failing which the suit was directed to stand dismissed. In appeal filed by the vendee the appellate Court enhanced the sale price to Rs,12,000 but dismissed the appeal in all other respects and ordered the pre-emptor/plaintiff to deposit the amount by 30-4-1966. Being dissatisfied with the enhancement of the sale price, the plaintiff filed a second appeal in the High Court and a stay against the deposit of pre-emption money in excess of Rs,7,215 was granted by the High Court on 28-4-1966. While the above appeal was pending, Ghulam Haider, the plaintiff/appellant, died on 1- 10-1966. However, no application for bringing legal heirs on record was made within time but was presented on 8-4-1969 with an application under section 5 of the Limitation Act. The same was dismissed by the learned Judge in Chambers. The application for deposit of the pre-emption money was also dismissed. Against the above order of the learned Judge in Chambers, a petition for leave to appeal was filed in this Court alongwith an application for stay, which was granted as under:-- "Status quo shall be maintained during the pendency of this petition, provided the petitioners deposit the full price as decreed by the Additional District Judge, Gujrat, by or before the 2nd of February, 1973." ' It appears that the legal representatives of Ghulam Haider plaintiff deposited the pre-emption money in terms of the above order of this Court dated 2-1-1973. However, the appeal was
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eventually dismissed. Thereupon, a review petition was filed, which was allowed for the following reason:- "In view of the facts brought to our notice we have, as stated before, come to the conclusion that the decree passed in favour of the petitioners is fully effective and unaffected by the decision of the appeal by this Court. The legal position arising out of the facts enumerated in this order, is fully consistent with the above-cited portion of the judgment. The balance of the sale price having been deposited by the decree-holder in accordance with the order of the Court, the title passed to them as the successful pre-emptors under Order XX, Rule 14(1)(a) of the C.P.C. While therefore maintaining the final decision of the appeal, we hold that the suit of the…
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