' TASSADUQ HUSSAIN JILLANI, J.--- Through this petition, leave is sought against the judgment, dated 13-1-2004 passed by a learned Single Judge of the Lahore High Court vide which petitioner's Regular Second Appeal No,15 of 1994 directed against the judgment and decree of the learned District Judge was dismissed.
2. The facts necessary for disposal of this petition are that respondents filed pre-emption suit qua the transaction of sale subject-matter of this petition. The suit was decreed by the trial Court vide judgment and decree dated 6-4-1967 and respondent/plaintiffs were directed to deposit the pre- emption money by 15th May, 1967 i,e, within 30 days. Respondent filed an appeal against the afore- referred judgment on question of price of the suit-land on 4-5-1967 and the District Judge suspended the operation of the judgment and decree of the trial Court on 5-5-1967.
Petitioners/defendants also filed an appeal, both these appeals were dismissed by the District Judge vide the judgment and decree dated 2-9-1968, through two separate judgments.
Respondents challenged the judgment and decree of the District Judge through Regular Second Appeal No,758 of 1968 again raising the question of price whereas the petitioners did not challenge the judgment of the District Judge as according to learned counsel for the petitioners, on failure of deposit by respondents/plaintiffs within the time mandated by the trial Court the suit automatically stood dismissed and there was no occasion for him to file the appeal. The learned High Court dismissed respondent's regular second appeal on 29-5-1989 against which respondent filed Civil Appeal No,1303 of 1999, the same was allowed and the case was remanded to the District Judge to decide appeal afresh after hearing the parties. This Court inter alia observed as follows:-- "We have heard learned counsel for the parties and we are of the view that it is not necessary for us to decide in this appeal the question, whether the appellant was to deposit the preemption money within 9 days from the date of dismissal of his appeal i,e, on 2-9-1968 by the learned District Judge.
It will suffice to observe that the appellant had filed the above civil appeal without depositing the decretal amount at his peril. Since the appellant's above civil appeal was dismissed by the learned District Judge under misconception that the same was barred by time though factually it was not so, the appellant is entitled to the rehearing of his above civil appeal. (Emphasis is supplied).
3. After remand the learned District Judge vide the judgment and decree, dated 30-6-1994 dismissed the appeal again. The learned District Judge while deciding the appeal afresh also heard petitioners/defendants on merits having allowed their application under Order XLI, rule 33 of the Civil Procedure Code and adverted to the pleas raised by the petitioners/defendants with regard to the question of respondents/ plaintiffs' superior right of pre-emption, as also the question that the suit stood dismissed for non-deposit of pre-emption money in terms of the judgment and decree of the learned trial Court. Both these questions were decided against the petitioners. This judgment of the learned District Judge was challenged by the petitioner in Regular Second Appeal No,15 of 1994 which stands dismissed vide the impugned judgment, dated 13-1-2004.
4. Learned counsel for the petitioner impugns the concurrent judgments of the three Courts below both on merit and also on the question that the pre-emption money having not been deposited by the respondents within the period provided by the trial Court, the suit stood automatically dismissed and there was no occasion for the District Judge to hear him on merit after the remand by this Court. Coming to the merits of the case, he contended that admittedly the land (a piece of 4 Kanals) on the basis of which respondents/plaintiffs claimed their superior right was sold (on 18- 12-1965 whereas the suit was filed on 29-7-1966) by them before filing the civil suit. They had no superior right at the time when they filed the suit and, therefore, the suit could not have been decreed.
5. Learned counsel for the respondents does not deny the fact that respondents/plaintiffs did part with 4 Kanals of land on 18-12-1965 but according to him the said transaction was a transaction of exchange and by virtue of the same transaction they became owner of 20 Kanals of land, the same day i,e, 18-12-1965 and, therefore, they continued to be a Sharik-e-Khata to assert their right of pre-emption. Coming to the question of non-deposit of the pre-emption money, he contended that when the respondents challenged the judgment and decree of the trial Court dated 6-4-1967 before the District Judge by filing an appeal on 4-5-1967, the judgment and decree of the trial Court was suspended by the District Judge on 4-5-1967 and after dismissal of their appeal i,e, on 2-9-1968 they deposited the pre-emption money within a reasonable time i,e, on 8-10-1968.
According to him, in absence of any direction of the Appellate Court with regard to the deposit of pre-emption money the same had to be deposited within reasonable time and this aspect has been adverted to by the District Judge which finding has very aptly been affirmed by the learned High Court while dismissing petitioners' appeal. In support of these submissions, he relied on the judgment of this Court in Dost Muhammad v. Nazar Hussain Khan 1984 SCM R 325.
6. We have considered the submissions made by both the learned counsel and have gone through the precedent case-law cited at the bar.
7. A bare reading of the judgment of this Court in Civil Appeal No,1303 of 1999, a paragraph of which has been reproduced in para.2 above would indicate that the question of the effect of non-deposit of preemption money had been kept open to be decided by the District Judge when it observed that, "It will suffice to observe that the appellant had filed the above civil appeal without depositing the decretal amount at his peril". After remand, the learned District Judge repelled petitioners/ defendants' objection regarding this question in para.7 of his judgment on the ground as under:- "After filing of the appeal, order of the learned trial Court directing the deposit of pre-emption money was held in abeyance vide order, dated 5-5-1967. This order was confirmed on 8-6-1967.
Appeal was disposed of under misconception. Moreover no direction was given with regard to deposit of preemption amount. Now after remand, appellant is standing at same position as it was on 8-6-1967 when stay order was confirmed. He deposited pre-emption amount on 8-10-1968 at his own accord."
8. Learned District Judge while giving afore-referred finding did not advert to the fact that respondents/plaintiffs had been granted 30 days to deposit pre-emption money with effect from 6-4-1967 (judgment and decree of the trial Court) and by the time respondents/plaintiffs filed the appeal i,e, on 4-5-1967, a period of 28 days had already lapsed. The judgment of the trial Court was suspended by the appellate Court on 5-5-1967 while admitting appeal of the respondents/plaintiffs but this appeal was dismissed on 2-9-1968. They deposited the pre-emption A money on 8-10-1968 which is after a delay of 36 days after the judgment of the learned District Judge and if the period of 28 days (between the trial Court's judgment the filing of appeal before the District Judge) is added, after a delay of 46 days. The learned High Court while passing the impugned judgment did not consider this ground although it was specifically taken in the grounds of appeal.
9. In matters of deposit of pre-emption money, the law is strict. The judgment to which reference has been made by respondents' learned counsel reported as Dost Muhammad v. Nazar Hussain Khan 1984 SCM R 325 is of no avail to him because in the said judgment the District Judge while disposing of the appeal had by implication extended the period by observing that the pre-emption money should be deposited "within" reasonable time. However, in the instant case there was no direction by the District Judge while dismissing respondents' appeal to deposit the pre-emption money within reasonable time and the effect was that the pre-emption money had to be deposited in terms of the judgment and decree of the trial Court i,e, within 30 days. In the case Khurshid Akbar v. Mian Manzoor Ahmed and another 1982 PSC 812 to which reference has been made by petitioners' learned counsel a similar issue came up for consideration and a delay of 9 days in depositing the pre-emption money was considered fatal. The Court observed as under:-- "According to the appellant, he obtained the copy of the judgment on 2-7-1969. If this was -even taken to be the date on which he became aware of the terms of the order of the learned District Judge, he took no tangible steps towards depositing the pre-emption amount in Court, but merely confined his activities to consulting lawyers in this connection and then moved an application for fixing some time for making the deposit. The delay of 9 days, in the context of the case, was an unreasonably long time when we see that this was a pre-emption matter, the appellant himself had sought the suspension of the decree of the trial Court, so far as making of deposit was concerned to use this Court's expression 'at his own peril' and the slightest indolence and lethargy shown by him after his appeal had failed, could be fatal to his case. Therefore, after obtaining the copy on 2-7-1969, he could not waste any further time."
10. For what has been discussed above, we are of the view that the impugned judgment dated 13-1- 2004 as also the judgment of the District Judge dated 30-6-1994 cannot be sustained in law. This petition is converted into appeal and allowed. Both the afore-referred judgments are set aside and consequently the suit of the respondents/plaintiffs is dismissed for non-deposit of the pre-emption money. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.