Tassaduq Hussain Jillani, J.--This appeal by leave of the Court is directed against the judgment dated 1.01.2002 vide which the civil revision of the respondent-plaintiffs was allowed, the period for deposit of pre-emption money was extended and suit was decreed.
2. Facts in brief are that respondent-plaintiffs suit for preemption qua the land subject-matter of this appeal was decreed by the trial Court on 22.07.1984 subject to deposit of Rs. 84,800/- by or before 17.09.1984 after deducting Zar-i Panjum, if any. The said judgment and decree was challenged in appeal by the respondent-plaintiff insofar as the quantum of sale consideration was concerned. The precise contention of respondent-plaintiff was that the sale consideration was Rs.
55,000/- and not as claimed by the defendant. While admitting the appeal, the Appellate Court did not suspend the operation of the judgment and decree but directed that the decretal amount to the extent of Rs. 25,000/- shall not be paid to the vendor. The decree holder instead of depositing the entire amount in terms of the decree deposited only a sum of Rs. 55,000/- as sale consideration. Not only the appeal was dismissed but even the suit met the same fate for non- deposit of the preemption money within the time allowed by the trial Court. This was vide judgment and decree of the learned District Judge dated 26.06.1994. This was challenged before the High Court by way of a civil revision which has beep allowed vide the impugned judgment dated 25.01.2002.
3. Leave was granted by this Court vide order dated 24.08.2004: "After hearing the learned counsel for the parties, we are inclined to grant leave to appeal inter alia to consider the question of law. whether the High Court was legally competent and justified to extend the period for deposit of part of preemption amount specifically directed by the trial Court to be deposited before a particular date and upheld by the appellate forum. Order accordingly."
4. In support of this appeal, learned counsel for the appellant submitted that the learned Appellate Court had rightly dismissed the suit of the respondent-plaintiff as the pre-emption money had not been deposited in terms of the direction of the trial Court; that the judgment and decree contained a default clause; that in the event of default of payment of sale consideration, the suit had to be dismissed; that it was a self operative judgment and decree and the Court was not competent to extend the time. In support of the submissions made, learned counsel relied on the following judgments:
(1) 1975 SCMR 1426 (ii)Haji Nawab Khan v. Fazal-ur-Rahman (1976 SCM R 502)
(iii)1997 SCMR 420 (iv)Muhammad Taj v. Subedar Muhammad Rasheed (1989 SCM R 505).
5. Learned counsel for the respondent-plaintiff, on the other hand, submitted that the learned Appellate Court while admitting the appeal and issuing notice to the appellant-defendants did not direct him to deposit the entire decretal amount; that since he had challenged the quantum of the sale consideration, the learned Appellate Court should have suspended the judgment, and decree to the extent of deposit of sale consideration. but instead passed an order on 30.08.1984 to the effect that, "the decreed amount to the extent of Rs. 25.000/- be not paid to the respondents".
According to him, the plaintiff was misled by the tenor of the afore-referred order and the non- deposit of amount within the period directed by the trial Court (on or before 17.09.1984) should not non-suit him. He further contended that the Appellate Court had sufficient discretion to grant reasonable time to deposit the amount by extending the period which power the Court did not exercise for reasons untenable in law. In such a circumstance, according to him, the learned Revisional Court amptly interfered with and reversed the judgment and decree of the Appellate Court and thereby extended the period within which the respondent-plaintiff was directed to deposit the sale consideration. The impugned judgment on that score, he argued, is unexceptionable. In support of the subthissions made, learned counsel relied on Bhai Khan v. Allah Bakhsh (1986 SCM R 849), Nazir Ahmad v. Ghulama (1987 SCM R 1704), Dost Muhammad v. Nazar Hussain Khan (1984 SCM R 325).
6. We have heard learned counsel for the parties and have given anxious consideration to the submissions made.
7. The pre-emption suit was decreed on 22.07.1984 by the Civil Judge 1st Class Pasroor, the operative part of which carried a default clause as under: "As a result of my findings on the above discussed issues the suit of the plaintiff is decreed subject to the payment of Rs. 84,800/- including Zare-Punjam and costs of registration of the sale-deed.
The plaintiff is directed to deposit the above amount after deducting Zare-Punjam if already deposited by him on or before 17.09.1984 ,failing which, the suit of the plaintiff shall, stand dismissed."
8. The respondent-plaintiff challenged the quantum of sale consideration by way of an appeal in which notice was issued to the appellant-defendant. No stay was granted against the judgment and decree and the Court merely directed that, "the decreed amount to the extent of Rs. 25,000f- be not paid to the respondents". The appeal was finally dismissed on 26.06.1994 and while doing so, the suit was also dismissed as the learned Appellate Court was of the view that the provisions of Order 20, Rule 14 CPC are mandatory and on account of failure of the pre-emption to deposit the pre-emption money within the time allowed by the trial Court "the operation of which was never 'suspended, had entailed in the dismissal of the suit and the suit of the plaintiff stood dismissed automatically." In reversing the judgment and decree of the learned Appellate Court vide the impugned judgment and decreeing, the suit, the learned High Court invoked provisions of Section 22 of the Punjab Pre-emption Act, 1930, read with Order 41, Rule 13 of CPC and relied on a judgment of this Court reported at Muhammad Arshad v. Ch. Fazal Haq (1991 SCM R 2149).
9. In Muhammad Irshad (supra), which found favour with the learned High Court in passing the impugned judgment, this Court allowed 10days time to the pre-emptor to deposit the sale consideration by reiterating the view taken in Khurshid Akbar v. Mian Manzur Ahmed (1982 SCM R 824) and Bhai Khan v. Allah Bakhsh (1986 SCM R 849) to the effect that normally the Appellate Court should grant reasonable time to the pre-emptor while dismissing the appeal but it can in exceptional cases refuse to exercise its discretion in his favour. The view that the Appellate Court has such a discretion was followed in Nazir Ahmad v. Ghulama (1987 SCM R 1704), Dost Muhammad v. Nazar Hussain Khan (1984 SCM R 325) and 1976 SCMR 50.
10. In Bhai Khan (supra), the learned High Court did not extend time as it was of the view that the appellant was guilty of gross negligence in not brining his said application to the notice of the learned District Judge and had for mala fide considerations contested the point of deficiency in the Court with a view to prolong the appeal and thus to gain time. The relief was thus refused.
In Dost Muhammad v. Nazar Hussain Khan (1984 SCM R 325), there was no self operative default clause in the decree and it stipulated that, "if the plaintiffs .failed to pay or deposit in Court Rs.
4,00,000 towards the price of the land by 6th of May, 1978 their suit would be dismissed." The decree thus, did not envisage an automatic dismissal wherein normally the expression used is that in the event of default the suit "shall stand dismissed."
Similarly in Nazir Ahmad v. Ghulama (1987 SCM R 1704 at 1708), in absence of a self operative default clause in the consent decree extended time which was upheld by this Court and in doing so it relied on a previous judgment reported at Khurshid Akbar v. Mian Manzur Ahmed (1982 SCM R 824).
11. In the case in hand, there was an explicit self operative default clause which stipulated that if the decree holder did not deposit the sale consideration on or before 17.09.1984, the suit shall stand dismissed. The decree was passed on 22.07.1984, the appeal against the said judgment was admitted to regular hearing on 30.08.1984. There was no stay order issued against the decree. The direction of the Appellate Court at the time of admitting the appeal that "in the meanwhile decreed amount to the extent of Rs. 25,000/- be not paid to respondents" had two connotations. Firstly that the direction of the trial Court for deposit of the decretal amount by 17.09.1984 was not stayed and the decree holder had to deposit it in terms of the said order. Secondly out of the decretal amount if so deposited, a sum of "Rs. 25,000/- was not to be paid to the judgment debtor. Admittedly, the decree holder did not deposite the amount in terms of the decree and only deposited Rs. 55,000/-.
The appeal was ultimately decided and dismissed on 26.06.1994. During the intervening period of 10 years (from 26.07.1984 to 26.06.1994), no effort was made by the decree holder or to seek extension of time from the Appellate Court and in the event of refusal from the next higher Court. Instead, 'during this interregnum stretching over a period of a decade, the appeal was dismissed in default thrice and thrice it was restored. This contumacious conduct reflects adversely on his bona fides and could not have entitled him to a discretionary relief which the Appellate Court was competent to grant. The judgment and decree of the learned Appellate Court dismissing the appeal as also the suit filed by the respondent-plaintiff, in the afore-referred circumstances, was unexceptionable and could not have been interfered with by the learned High Court vide the impugned judgment.
12.In Muhammad Taj v. Subedar Muhammad Rasheed (1989 SCM R 505), this Court upheld the judgment of the High Court dismissing the suit of the pre-emptor on the ground that in absence of a valid extension of time by the competent forum after time for payment/deposit of pre-emption money had run out, the amount could not be deposited and that the pre-emptor's decree became void.
13.In Haji Nawab Khan v. Fazalur Rahman (1976 SCM R 502), the Court considered the effect of the default clause in the decree and came to the conclusion as follows: "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."
14.In Muhammad Nawaz v. Muhammad Sadiq (1995 SCM R 105), the principles which should guide an Appellate Court to extend time were dilated upon and it was observed asunder: "An appellate Court is competent to extend time for deposit of the pre-emption money either during the pendency of an appeal before it or at the time of disposing of the same notwithstanding that the time mentioned in the pre-emption decree for the said purpose may have expired.
Furthermore, an appellate Court may extend time for the above purpose at the stage when an appeal is not admitted for regular hearing by it or a petition for leave to appeal is not granted and such an extension of time will not be nullified by the factum that the appeal or the petition for leave to appeal is subsequently dismissed summarily. However, neither a trial Court nor an appellate Court can extend time for deposit of pre-emption money once the matter stands disposed of and it is no longer pending before it. In such an event, the direction contained in the original decree to the effect that in case of failure to deposit the pre-emption money the suit shall stand dismissed, becomes 'effective. However, the above rule seems to be subject to one exception, namely, that if an appellate Court varies the finding of the Court below on the quantum of the pre-emption money, in other words it either increases or reduces the same, in that event, it should fix fresh reasonable time for deposit of the pre-emption money and in the absence of any such fixation, the pre- emptor may deposit the same within reasonable time. An Appellate Court is not bound to grant extension of time in every case.
15.In Rehman ud Din v. Sahibzada Jehanzeb (2004 SCM R 418), this Court upheld the view that if the pre-emptor failed to deposit the pre-emption money on account of his negligence, he was rightly non-suited.
16.In Riaz Hussain v. Nazar Muhammad (2005 SCM R 1664), the Court again upheld the judgment of the High Court wherein the pre- emptor was non-suited on the ground of non-deposit of pre- emption money within time and for filing belated appeal.
17.For what has been discussed above, the impugned judgment is neither based on correct appreciation of facts nor the law declared. This appeal is, therefore, allowed, the impugned judgment is set aside the judgment of the learned Appellate Court dated 26.06.1994 is restored and the suit of the respondent-plaintiff stands dismissed, with no order as to costs.