1. SARDAR MUHAMMAD NAWAZ KHAN, C.J.--- Through this appeal, the judgment and decree, dated 28-9-2005 passed by District Judge, Bagh to the extent of sale consideration is under challenge.
2. The relevant facts necessary for the decision of this appeal are that Muhammad Irshad Khan appellant herein brought a pre-emption suit regarding suit-land against Muhammad Tariq Baig and others, respondents herein, in the Court of Civil Judge, Bagh. The learned trial Court, after due process of law, allowed the suit consequently, the parties to lis stood satisfied to the extent of others controversies except price paid for the purchase of the suit-land. The appellant Muhammad Irshad challenged the findings of the trial Court only to the extent of sale consideration. The learned District Judge maintained the findings by the trial Court resultantly, the appeal was dismissed. The said Court while passing the impugned decree directed the appellant/pre-emptor to deposit the decretal amount on or before 15-10-2005, failing which the suit was deemed to be dismissed.
3. A preliminary objection regarding maintainability of this appeal has been raised by the learned counsel for the respondents. According to him, the present appeal has been brought after expiry of stipulated time thus, the pre-emption suit had already stood dismissed on account of failure in depositing the decretal amount. The learned counsel for the appellant when confronted with this objection, submitted that the appeal has been filed within limitation prescribed for it, therefore, this Court was competent to enlarge the time for deposit of decretal amount. He in order to support his contention relied upon Muhammad Nawaz and others' case 1995 SCM R 105 in which the learned Judge observed as under:-- "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.
4. Furthermore, the 1st Appellate Court may extend time for the above purpose at the stage when the 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 similarly. However, neither a trial Court nor an Appellate Court can extend time for depositing 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 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. The conduct on the part of a pre- emptor may disentitle him from pressing into service exercise of the above discretionary power by an Appellate Court in his favour. It is difficult to categorize all the cases in which a pre-emptor will not be entitled to seek exercise of the above discretionary power in his favour by an Appellate Court. It will depend on the facts of each case. If the sole object of a pre-emptor in filing of an appeal is to delay deposit of the preemption money, about.The correctness of which, there cannot be any reasonable doubt, to a reasonable man, in such a case an Appellate Court may decline to extend the time."
5. The perusal of above legal report would show that the Appellate Court is competent to extend the time for deposit of decretal amount irrespective of the fact the time mentioned in pre-emption decree for the purpose may have expired. This view has been taken after having discussed the scope of section 148, C.P.C. And it is a correct view. This Court respectfully subscribes to the view of Honourable Judges. The fixation of the time for deposit of decretal amount or its extension by the Appellate Court is a discretionary matter and it has got nothing to do with those cases where law provides a time for certain purpose. Fixation of time for deposit of decretal amount in a pre- emption case is a discretionary power available to a Court under section 151, C.P.C. And such power is always exercised to meet the ends of justice. The Court while exercising this power has to keep in mind the facts and circumstances of each case and if it reaches the conclusion that it is just to enlarge the time, it should act favourably. However, when the Court had become functus officio, the position is different. In such eventuality the discretion to enlarge the time shifts to the next higher forum i,e, the Appellate Court.
6. Here in this case the present appeal has admittedly been filed within limitation. It is also admitted fact that a high richter scale earthquake took place on 8-10-2005 and this unfortunate incidence paralysed the whole life in Bagh District. The stipulated time in the preemption decree expired on 15-10-2005 meaning thereby that life was yet to return to normalcy. It was a time of 17 days only from the date of decree. This appeal has already been admitted for regular hearing; so it is required to be decided on its merits. When the appeal is to be decided on merits, its dismissal on the basis of stipulation in the pre-emption decree would mean to bar the jurisdiction of this Court to decide it on its merits. This has never been the intention of law neither it is in the interest of justice The appellant is found to have been contesting over the controversy about the price of the suit-land and he has preferred this appeal with the same grievance. Therefore, it cannot be said that he with some ulterior motive is pressing for enlargement of time. So, irresistible conclusion is that this appeal cannot be dismissed on the ground of stipulation in the pre-emption decree.
7. Coming to the appeal on its merits, it may be stated that both the Courts below are unanimous on the point of sale price and market price of the suit-land. This is question of fact to be resolved concurrently, therefore, calls for no interference unless misreading or non-reading of evidence is found to have been committed. The entire evidence on either side is found to have been considered and appreciated in its true perspective. Having done so, the Courts below have reached a correct conclusion which needs no interference by this Court. The appeal being without any merit is hereby dismissed however, the appellant is allowed to deposit the decretal amount as calculated by the First Appellate Court on or before 15th of February, 2008.