On 18-4-2001 Regular Second Appeal No,258 of 1982 alongwith Regular Second Appeal No,210 of 1985 and Regular Second Appeal No,211 of 1985 were heard and decided by a learned Judge of this Court, which arose out of a pre-emption litigation. The operative part of the judgment reads like this:-- "6. In view of allowing the Regular Second Appeal No,210 of 1985, there is no merit left in the Regular Second Appeal No,211 of 1985, filed by Mst.Shamim Akhtar, therefore it is hereby dismissed. Before parting, it may be observed that if the pre-emptors have not yet deposited any part of the sale price as directed by the trial Court, they are allowed 15 days time to do the needful. In case said amounts are not deposited, the suit filed by the pre-emptors shall be deemed to have been dismissed. No order as to costs." The judgment stately was assailed before the Hon'ble Supreme Court of Pakistan and was upheld.
2. On 17-5-2001 Civil Miscellaneous No,3-C of 2001 was moved in Regular Second Appeal No,210 of 1985 "under section 151, C.P.0 read with section 5 of Limitation Act, 1908 for extension of time for deposit of sale price by the pre-emptors." This application and some miscellaneous applications filed later on have been coming up for hearing before the learned Judge, who had decided the above mentioned appeals, however, on 11-11-2003 he declined to hear the matter, which then was entrusted by the Hon'ble Chief Justice to this Courts.
3. Extension in time is sought by the applicants on the grounds which find mentioned in paragraphs-2, 3, 4 and 5 of the application. The application has been contested by filing reply thereto controverting the assertions made by the applicant that such an application was not competent as the Court had become functus officio after decision of the appeal and resultant dismissal of the suit.
4. The learned counsel for the parties have been heard in support of their respective contentions.
The learned counsel for the applicants has cited Malik Hadayat Ullah and 2 others v. Murad Ali Khan (PLD 1972 SC 69), which was a case pertaining to the non-deposit of Zar-ePanjum' and Sherin and 4 others v. Fazal Muhammad and 4 others (1995 SCMR 584), which deals with the import of sections 5 and 14 of Limitation Act, 1908 qua filing of an appeal.
'The learned counsel for the respondent on the other hand contends that no such application is competent and has cited Shah Wali v. Ghulam Din alias Gaman and another (PLD 1966 SC 983), Haji Nawab Khan v. Fazalur Rahman and another (1976 SCMR 502), Bhai Khan v. Allah Bakhsh and another (1986 SCMR 849), Ghulam Haider v. Muhammad Qasim (1992 CLC 1386), Lutaf Ali v. Abdul Ghafur and others (1998 SCMR 1121), and Mst. Naseema Salahuddin and 2 others v. Mst Daulat Fatima and 4 others (PLD 2004 Lahore 103).
5. In view of the paragraph-6 of the appellate judgment, mentioned above, the pre-emptors were required to make deposit of the sale price within 15 days. Consequential effect was that "in case said amounts are not deposited, the suit filed by the pre-emptors shall be deemed to have been dismissed." The judgment as stated above was maintained by the Hon'ble Supreme Court of Pakistan, by dismissing the petition there against on 19-2-2003 without any modification/variation.
Fifteen days time expired on 3-5-2001 whereas the present application was filed before the Court on 17-5-2001. In such circumstances the perusal of the paragraphs 2, 3, 4, and 5 of the application and corresponding reply thereto need to be perused and considered:--
2. That since the judgment was not dictated in the Court Room in presence of the parties, the petitioners/appellants were not aware of the aforesaid condition. Certified copy of the judgment/ decree was obtained in a bit late as the same remained, in the process of preparation, of decree sheet, the copy could not be obtained in due course of time also because the rival party had applied for the same for filing appeal in the Hon'ble- Supreme Court.2. It is denied. The judgment was pronounced in open Court on 18-4-2001 in the presence of counsel for both the parties. It is vehemently denied that the petitioners are unaware of the direction of the Honourable Court for deposit of pre-emption money. The vendees obtained certified copy of the judgment on 3-5-2001 and filed civil petitions for special leave to appeal before the Honourable Supreme Court of Pakistan which were heard on 5-11-2002 and were accepted through an oral order of the Court. However subsequently the matter was reheard and the petitions for special leave to appeal were dismissed by judgment dated 19-2-2003. The present application is dated 16-5-2001 whereas the time for deposit of pre-emption money has expired on 3-5- 2001. Thus the application is wholly incompetent and not maintainable in law. The Court has become funtus officio as the direction of the Hon'ble Court became operative automatically and there is no lis pending before the Court. In view of the above facts the application being devoid of any merits requires to be dismissed. It is further submitted that the petitioners have not taken the Court into confidence and has put up a totally baseless excuse. It is admitted that certified copy was obtained a bit late and could be obtained in due course of time. The petitioners have failed to specify the dates and have intentionally and deliberately suppressed the relevant facts in order to obtain a favourable order.
3. Thatafter obtaining the copy and its perusal, some delay has caused in checking/tracing the record/receipts of deposit of such money and in consulting the counsel for the purpose. The petitioners have now come to conclusion that substantial part of sale price was, deposited at the relevant and a part of the same is outstanding as yet which they are ready to deposit but the specified period of 15 days has elapsed which merits being extended for few days for giving an opportunity to petitioners to do the needful. Hence this petition.3.As stated it is not admitted. The petitioners have not disclosed as to how much pre-emption money they have deposited and what remains to be outstanding amount which remained unpaid in the Court.
4. That the petitioners could not comply with the direction of the Hon'ble Court in due course of time due to the aforesaid unavoidable circumstances being beyond the control of the petitioners, therefore, they are entitled to the extension of time for the purpose.4. It is denied.
5. That under the circumstances of the case and law on the point, the petitioners are entitled to the grant of relief prayed for.5. It is denied.
It may be appreciated that in a pre-emption matter a composite decree is passed by the Court in terms of Order XX Rule 14 Code of Civil Procedure, 1908, fixing the time for deposit of pre-emption money. If the terms of the decree are complied with by the pre-emptor, he succeeds and in case he fails to make deposit as ordered by the Court, the suit is dismissed and the same decree endures for the benefit of the defendant/vendee. Valuable right thus accrue in favour of the vendee on account of default by the pre-emptor in complying with the terms of the decree. He (vendee) cannot be denuded of such right unless good cause is shown and extension in time is granted by condoning the default.
14. It is noteworthy that admittedly the appeal was heard by the learned Judge on 18-4-2001 judgment wherein was not reserved or postponed. The assertion of the respondent is that the judgment was pronounced in open Court in presence of counsel for both sides, which finds support from the noting in the file. In the circumstances I entertain no doubt whatsoever that on conclusion of hearing of the appeals the judgment was announced by the learned Judge and the plea of the petitioners that they were not aware of the condition for deposit of the A pre-emption money looses its credibility. Since on the factual aspect of the matter I am not persuaded to accept the plea of the applicants, I feel no necessity to dilate upon the other aspects of the matter as to the power of the Court to extend time except to observe that in appropriate cases B where the fault, act or omission is wholly attributable to the Court or its official, such power can be exercised by the Court to relieve a party from oppression and injustice.
The application being without substance is dismissed accordingly.