1. DORAB PATEL, J.-On 16-8-1967 one Kamal Khan sold some agricultural land in Pishin District, to the respondent, therefore on 5-10-1967, the petitioner filed a suit in the Court of the Administrative Civil Judge, Quetta to pre-empt this sale. The suit was initially contested by the respondent, but was compromised by the parties at the intervention of the elders of the locality. According to this compromise, the respondent conceded the peti--tioner's right of pre-emption provided further that the petitioner paid the agreed price of Ks. 5,095 to the respondent before the Tehsildar, Pishin at the time of the attestation of the entry of the mutation of the sale. Further this amount had to be paid to the respondent on 26-8-1968 and in the event of the petitioner's failure to pay the sale price on 26-8-1968, his suit was to stand dismissed automatically. This compromise was made the rule of the Court in due course and the petitioner claims that he went to the office of the Tehsildar, Pishin on 26-8-1968 and in the presence of the respondent, the mutation entry for the sale was entered in the register of mutations by the Patwari. But, the pre-emption money was to be paid before Tehsildar at the time of the attestation of the sale by the Tehsildar, and, the petitioner claims that he had come to the Tehsildar's office with the said sum of Rs. 5,095 in order to give it to the respondent, but before the Tehsildar could arrive, the respondent disappeared, therefore, he was not able to pay the respondent, and the Tehsildar could not effect the attestation of the entry for the sale. The petitioner then claims to have rushed to Quetta with the pre-emption money and to have filed an apple--cation on the same day in the Court of the Senior Civil Judge for the deposit of the pre-emption money in Court. However, as the Court time was over, this application could not be presented to the learned Senior Civil Judge on 26-8-1968, and was presented instead to the clerk of the Court. Further, according to the procedure then in force, this amount of Rs. 5,095 had to be deposited in the State Bank of Pakistan, but as it was also too late for the State Bank to receive moneys from the public, the petitioner obtained the challan from the State Bank, but deposited the sum of Rs. 5,095 the next day. He also filed an application on 27-8-1968 in the Court of the Senior Civil Judge in which he prayed that the money thus deposited should not be paid to the respondent until be got the mutation of sale attested in the petitioner's favour. This application was dismissed by the Senior Civil Judge on 23-6-1969 on the ground that it was not maintainable, because the petitioner had, in breach of the terms of the compromise decree, not deposited the sale price on 26-8-1968.
2. As the petitioner had admittedly deposited the sale price on 27-8-1968, he filed a review application of this order of 23-6-1969, and the review was pressed on the ground that the learned Administrative Civil Judge had ignored the provisions of section 148 of the Civil Procedure Code. It is not surprising that this review application was opposed the respondent, but unfortunately for the respondent, in the events mat happened, it came up for hearing before the Civil Judge, 1st Class, Quetta who by his order dated 5-11-1970 reviewed the order of his predecessor (the learned Administra--tive Civil Judge). In allowing the review the learned Civil Judge observed; "It is further the case of the applicant that he had moved an apple--cation for depositing the amount in the Court on 26-8-1968 which was delivered back to him late during the course of the day and as such the amount was deposited on the next day. The contention of the applicant could have only be proved through evidence. No opportunity has been given to the applicant to adduce evidence in support of his' contention. - - - - - - - - - - - - - - - - - - Under Order XLVII, rule 1 a Court is competent to review an order on account of some mistake or error apparent on the face of the record or for any other sufficient reason. Since in the present case the applicant has been adjudged as defaulter : in the order under - review without any opportunity being given to him for adducing his evidence to prove his contention, the order suffers from an error apparent on the face of the record . . . The order dated 23-6-1969 is accordingly reviewed, recalled and set aside."
3. Then having reviewed his predecessor's order the learned Civil Judge, Quetta framed the following issues :---
(1) Whether the application of the applicant/plaintiff dated 27-8-1968 is not competent ?
(2) Whether the applicant/plaintiff complied the terms of the decree and has not committed any default?
(3) What should the order be ?
4. These issues were framed on 17-2-1971 and thereafter the case was fixed for evidence by the parties on these issues. The evidence was recorded after a delay of more than six years. No proper explanation has been given of this shocking delay by the petitioner in producing his evidence. Be this as it may, after the petitioner had examined three witnesses, he filed yet another application on 17-5-1977 and thereby created complications for himself.
5. The petitioner's prayer in this application was that the challan for the deposit of Rs. 5,095 made by him on 27-8-1968 was missing, therefore, his prayer in the application was:- "In this behalf it is to submit that entry of the amount in the register of year 1968 of Civil Nazir exists and further that it is presumed that the original challan for the deposit of the amount may also be in his custody.
6. It is true to pray that the concerned may kindly be called upon to produce the document on record and/or to require the Civil Nazir to submit his report in respect of the amount deposited in the State Bank of Pakistan."
7. I am unable to understand how it took the petitioner more than six years to discover that the challan of the deposit made by him was missing from the record of the case and I can only express my very great regret at the manner in which the proceedings in the case were thus unnecessarily and unjustifiably delayed. Be this as it may, according to Mr. Basharatullah, this application came up for hearing before yet another Judge, namely, the Civil Judge, Quetta on 16-7-1977 and instead of deciding the application, the learned Judge decided the issues framed by his predecessor on 17-2-1972 in the light of the evidence produced by the petitioner. I have examined this order of the learned Civil Judge. After examining the evidence, the learned Civil Judge has observed in his order of 16-7-1977 :- "However the plaintiff-applicant was under obligation to pay the pre-emption amount to the defendant/respondent/vendee by the due date. In case the respondent had refused, the applicant would have approached Tehsildar, submitted application and tendered/deposited the amount with him."
8. Then with reference to the petitioner's claim that he had deposited the pre-emption money in Court, the learned Civil Judge observed :- "In depositing the pre-emption amount, also the applicant is late by one day, as such he has failed to pay the pre-emption money by the due date as such he has lost his pre-emptive right. Due to the applicant's failure the vendee has gained the right, as such respondent shall now be deemed to be lawful owner of the disputed land, and the plaintiff-applicant's right has been extinguished. . .
9. In view of my above findings I hold that the applicant-plaintiff has not complied with the terms of the decree and has committed default.
10. The present application of the plaintiff is dismissed, with cost. The- file after completion be consigned to record."
11. As this order of the learned Civil Judge was not appealable, the petitioner challenged it in a revision in the District Court, Quetta. And, in the events that happened, this revision came up for hearing before a learned Additional District Judge, who reached the strange conclusion that the impugned order was appealable. And, having held that the impugned order was appealable, the learned Additional District Judge pointed out that the trial Court had "dismissed the application of the petitioner for extension of time to deposit the amount in the Court with the reason that the petitioner had failed to comply with the terms" of the consent "decree." Then after referring to the evidence adduced by the petitioner, the learned Additional District Judge observed that the evidence produced by the petitioner showed- "that he genuinely made efforts to deposit the amount in the terms of the compromise decree, but he unfortunately failed to do so due to certain technical obstacles in his way. The mere omission of the petitioner for (submitting) an application to the Tehsildar for depositing of the concerned amount should not bring him in such an awkward position that he may lose his main case : . ."
12. The learned Additional District Judge then observed;--- "That a compromise decree in view of the circumstances of the present case is still a valid decree.
13. The application for extension of time for depositing the decretal amount is presumed to be an execution application of the said decree and the review order passed by the trial Court while rejecting the first application for execution of the decree, the petitioner could file an appeal against the impugned order but as the petitioner in the circumstances of the case did not find it fit to file an appeal so the revision petition is not to be taken as a bar. I treat this revision petition an appeal.
14. The respondent challenged this order of 14-12-1977 in a revision in the Baluchistan High Court. The petitioner opposed the revision on the ground that a second revision was barred by subsection (2) of section 115 of the Civil Procedure Code. The learned Judge, who heard the revision rejected this contention because he was of the view that -the learned Additional District Judge had treated the petitioner's revision as appeal, therefore the learned Judge held that the respondent was entitled to challenge the order of the learned Additional District Judge in a revision before the High Court under section 11.5 of the Civil Procedure Code. Next, as to the merits of the case, the petitioner appears to have contended that as he was late in de--positing the pre-emption money by one day only, he was entitled to relief under section 148 of the Civil Procedure Code, but the learned judge held that the petitioner could not invoke the benefit of this remedial provision, because the time for depositing the pre-emption money had been fixed by the parties in a compromise which had been decreed. Therefore, by his order dated 7-12-1978, the learned Judge set aside the order of the District Court and restored the order of the Civil Judge dated 16-7-1977. Hence this petition for leave.
15. No exception can be taken to the view of the learned Judge that time could not be extended under section 148 of the Civil Procedure Code for the payment of the pre-emption money because of the compromise deer entered into between the parties, therefore, although the petitioner had sought a review of the trial Court's order of 23-6-1969 principally on the basis of section 148 of the Civil Procedure Code Mr. Basharatullah very properly dropped this plea. Instead, he vehemently submitted that the petitioner had fulfilled the terms of the compromise decree by bringing the pre- emption money with him to the office of the Tehsildar on 26-8-1968, but the respondent had prevented him from paying the sale price by disappearing from the office of the Tehsildar before the Tehsildar could arrive. In support of this plea, Mr. Basharatullah further contended that the petitioner had filed an application in the Court of the Senior Civil Judge on 26-8-1968 for the deposit of the pre-emption money which had been presented to the reader of the trial Court. As Mr. Chishti vehemently denied the allegation that the petitioner had filed any application in the trial Court on 26-8-1968, I would only observe that it is for the petitioner to prove his allegation that he had filed an application in the trial Court on 26-8-1968, but even if he proves it, it would only be a piece of evidence to support of his plea that the respondent had been prevented from complying with the terms of the compromise decree because of his con--venient disappearance of the respondent from the Tebsildar's office on 26-8-1968. And, I would emphasise here that as the respondent had allowed the order of the Civil Judge dated 5-11-1970 (by which the Civil Judge had reviewed his predecessor's order of 23-6-1969) to become final, the only question before the Court was whether the petitioner was ready and willing to pay the pre-emption price to the respondent before the Tehsildar, but had been prevented from so doing by. The respondent's disappearance.
16. Now, the Civil Judge, who was hearing the case in 1977, suddenly dismissed the petitioner's application by his order dated 16-7-1977 without giving the petitioner an opportunity to complete his evidence. As this order was passed on the petitioner's application on 12-5-1977 for examining the civil Nazar of the Court Mr. Chishti, who has argued at great length on behalf of the caveator, submitted that the petitioner's prayer in this application was to direct the Nazar to produce the original challan which the petitioner claimed to have filed in the trial Court on 27-8-1968 or "to require the civil Nazir to submit his report", and as the Civil Judge had dismissed the petitioner's application of 27-8-1968 on the basis of the Nazir's report, the learned counsel's further submission was that the learned Civil Judge was justified in closing the petitioner's evidence.
17. Mr. Basharatullah did not contest Mr. Chishti's statement that the petitioner had agreed to abide by the Nazir's report. But the report had relevance only to the alleged attempt of the petitioner to deposit the pre-emption money in Court, and even if he had proved this plea, it would only have been a piece of evidence in support of his claim that he had been prevented from complying with the terms of the compromise decree by the respondent. However the question and the only question before the Court was whether the petitioner had been prevented from complying with the terms of the compromise decree as claimed by him. Unfortunately, this crucial circumstance escaped the attention of the trial Court, because of its pre-occupation with the petitioner's contention that he was entitled to extension of time under section 148 of the Civil Procedure Code.
18. And, because it rightly held that the petitioner was not entitled to the benefit of section 148 of the Civil Procedure Code, it not only rejected his plea about the challan but unfortunately it also dismissed his application of 27-8-1968.
19. Mr. Basharatullah submitted that as the petitioner had not closed his evidence, the trial Court was not justified in dismissing the petitioner's application of 27-8-1968 merely because it was not impressed by his plea about the challan. The submission is correct. But, this is fatal to the respondent's claim, because he had erroneously allowed the trial Court's order of 5-11-1970 to become final, and as this order had become final, the trial Court had to permit the parties to produce evidence on the question whether the petitioner had been prevented from complying with the terms of the compromise decree by the respondent.
20. I may also observe here that Mr. Chishti did not dispute Mr. Basharatullah's claim that the petitioner had not closed his evidence on 16-7-1977 when the trial Court dismissed even his application of 27- 8-1968, therefore, it follows that the trial Court's order was illegal, and to this extent the criticism of this order by the Additional District Judge is correct. But, whilst criticising the trial Court's order, the Additional District Judge went on to hold that the petitioner had "genuinely mad efforts to deposit the amount in terms of the compromise decree." To say the least, this observation is strange, because the petitioner had no even closed his evidence. Secondly, even if the Additional District Judge was impressed by the evidence which had been brought on the record by the petitioner, the case was being tried by a Court and not by some tribunal guided by whims. Therefore, no finding should have been give by the Court without giving the respondent an opportunity of rebutting the evidence produced by the petitioner, and so apart from the fact that the Additional District Judge wrongly treated the petitioner's revision as an appeal, the order of the Additional District Judge suffers from the same fallacy as that of the trial Court. It has decided the petitioner' application without giving the respondent an opportunity of producing evidence against it.
21. It is true that the Additional District Judge observed in the last paragraph of his order that he was remanding the case to the trial Court for the purpose of deciding the petitioner's application of 27- 8-1968. But this formal direction of a remand of the case was hardly more than an exercise in futility, because the trial Court was bound by the Additional District Judge's observations, and by his earlier observations, the Additional District Judge had totally prejudged the issue in the case in favour of the petitioner. Therefore, I am unable to accept Mr. Basharatullah's submission that we should restore the order of the Additional District Judge even though he illegally purported to exercise an appellate jurisdiction over the Civil Judge's order.
22. I now turn to the impugned order and I would recall here that because the Additional District Judge had purported to convert the petitioner's revision into an appeal, the respondent had challenged the order of the Additional District Judge in a revision and because the learned Judge of the Baluchistan High Court held that the revision was competent, Mr. Basha--ratullah submitted, inter alia, that leave had to be granted because the learned Judge had erred in holding that the petitioner's revision was competent. Mr. Chishti relied on a well-considered judgment of Gul, J., (I say so with respect) in Bahadur v. Mirza A6dul Qayyum and another (PLD 1969 Lab. 636), But, as it is clear- from this judgment that the Additional District Judge had erred in the instant case in treating the petitioner's revision as an appeal, Mr. Basharatullah submitted that even if the order of the Additional District Judge was illegal (which he denied), the only remedy of the respondent was to challenge it in a writ petition. And, at one stage Mr. Chishti appeared to accept this proposition.
23. But, the scope of a writ petition is proverbially narrow, therefore, if we were to accept this proposition, it would mean that the respondent had to suffer on account of the gross error of the Additional District Judge. I would be reluctant to give my approval to a proposition fraught with such consequences and c the better view seems to be that of Gul, J. In Bahadur's case "that where the lower appellate Court entertains an appeal which does not lie to the Court, a second appeal is competent against the decision of that Court." However, even if we were to treat the respondent's revision in the Baluchistan High Court as an appeal, it will not help his case, therefore, as full arguments have not been addressed to us on this point, I would leave open the question as to how the respondent should have challenged the order of the Additional District Judge in the instant case. And I would only observe that the learned Judge has repeated the error of the trial Court by dismissing the petitioner's application of 27-8-1968 without allowing him full opportunity to produce evidence in support of his case. Therefore, on this short ground, leave has to be granted.
24. Now, although the petitioner prays for the grant of special leave, he has been conveniently vague about the precise relief sought by him, there--fore, I have to observe that even if all the petitioner's contentions are accepted as correct, this Court cannot allow his application of 27-8-1968, because that application cannot be disposed of without allowing both parties to produce evidence in support of their respective contentions and as no opportunity has been given to the respondent to produce evidence, the case has to be remanded to the trial Court in order firstly to enable the petitioner to complete his evidence and secondly in order to enable the respondent to produce evidence in rebuttal.