' This Regular Second Appeal has been filed by Mirza Ghulam Husain and it has arisen out of a suit for pre-emption filed by him against the respondent, Muhammad Bashir. On 8th March, 1976, the Civil Judge, Wazirabad, District Gujranwala, who was seized of the suit, directed the appellant to deposit Rs, 12,000 as zar-e-panjam (1/5th of the pre-emption money) before 13th May, 1976. Instead of so doing, he, on 12th May, 1976, made an application for extension of time for the deposit of zar- epanjam stating that as delay had occurred in the maturing of his wheat crop he had not been able to arrange for zar-e-panjam. He also offered to furnish security in terms of the provisions of section 22 of the Punjab Pre-emption Act, 1913, if so directed. A notice of his application was given to the respondent who filed a reply resisting the application. The learned Civil Judge found no force in the application and dismissed the suit by his order dated the 25th November 1976. His order was challenged by the appellant by taking an appeal to the District Judge, Gujranwala, but the same was dismissed on 22nd September, 1979. He has, therefore, come up in second appeal to this Court.
2. The appeal was dismissed by the learned District Judge for the reasons that the appellant had not paid the requisite court-fee therefor within the period of limitation and that the order of the learned trial Court whereby the appellant was non-suited due to his failure to deposit zar-e- paajam within the stipulated period was unexceptionable.
3. While arguing the appeal before me, learned counsel for the appellant contended that the appellant had given the amount constituting zar-e-panjam to his counsel, before the stipulated date, for being deposited with the learned trial Court but instead of depositing it with that Court he (counsel) had misappropriated the same and had, of his own, made the aforesaid application to the learned Civil Judge for extension of time for deposit of zar-e-panjam. The argument proceeds that on the dismissal of the suit, without taking the appellant into confidence, his counsel also filed the first appeal by paying the deficient court-fee. According to him, it was during the pendency of the first appeal that the appellant came to know of the fraud practised by his counsel and then he engaged another counsel in his place. As for the deposit of zar-e-panjam, it was also pleaded by him that since the application for extension of time, which was made before the stipulated date, was not immediately dismissed by the learned trial Court the appellant was deprived of one day which was otherwise available to him for making the requisite deposit and thus he was entitled to extension of time for making the deposit. In this connection he placed reliance on Elahi Bakhsh and others v. Mst. Sardar Begum (I). In regard to the deficiency in court-fee for the first appeal, {{FOOT NOTE}}
(I) PLD 1967 B J 5 {{FOOT NOTE}} learned counsel_______ for the appellant maintained that the deficiency had been made good during the pendency of the first appeal and, therefore, it could not be dismissed for non-payment of the requisite court-fee at the time of the filing of the said appeal.
4. In reply, it was submitted by the learned counsel for the respondent that there was no good excuse for the non-deposit of zar-e-panjam by the appellant within the period allowed by the learned trial Court and for the non-payment of proper court-fee on his first appeal at the time of the filing of the appeal and that the story coined by him regarding the fraud attributed to his counsel had been concocted by him with a view to avoiding the legal consequences of his said two lapses. He referred to Mst. Walayat Khatuh v. Khalil Khan and another (I) to contend that since a valuable right had accrued to the respondent due to the appellant's failure to pay the requisite court-fee within the period of limitation he could not be deprived of that right on the strength of a palpably false story touching his counsel in whom confidence had been reposed by him not only at the stage of trial but also for the purpose of taking the first appeal to the learned District Judge.
5. Before considering other points involved in this case, I would like to look into the appellant's plea that he had been duped by his counsel not only in the matter of the deposit of zar-e-panjam but also in connection with the filing of the first appeal without paying the requisite court-fee therefor.
His application for extension of time for depositing zar-epanjam as well as the memorandum of appeal tiled by him before the learned District Judge bear the signatures of the appellant and it is difficult to believe that he had affixed his signatures without knowing the contents of the said documents. In the memorandum of appeal before me it has been stated that the appellant is illiterate and that he was asked by his counsel to sign blank sheets of paper but there is nothing to support his plea in this behalf. Strangely enough, the memorandum of appeal submitted in this Court bears the signatures of his special attorney, Akhtar Husain, who is his son. No explanation whatsoever is forthcoming as to why the appellant had not signed the memorandum of appeal himself with a view to establishing the correctness of his assertion which, in view of the nature thereof, can be vouchsafed by him or by his counsel only. There is no affidavit by the appellant or his counsel that the appellant was made to sign blank sheets of paper. Even his special attorney mentioned above had not furnished such an affidavit. The affidavit annexed to the petition (C. M.
No, 6069/C of 1979) made by the appellant for grant of interim relief in the present appeal makes no reference to the appellant's averment under examination. Admittedly, the appellant had not made any complaint to the Bar Council alleging that his counsel had been guilty of professional misconduct. It is also not his case that he had taken out any criminal proceedings against him or had filed a civil suit for recovery of the amount allegedly paid by himon account of zar-epanjam.
The appellant took contradictory positions in explaining the non-deposit of zar-e-panjam. Before the trial Court the reason given by him for his shortcoming was that his wheat crop had not matured but before the first appellate Court his plea was that he had been defrauded by his counsel. The second plea, which is clearly an afterthought, was raised by him after about one year of the replacement of his counsel. The {{FOOT NOTE}}
(1) PLD 1979 SC 821 {{FOOT NOTE}} record of the first appellate Court shows that it was on 1st February, 1977 that the appellant had engaged Mr. Muhammad Azeem Bhatti, Advocate, in place of Mr. Muhammad Ashraf Bajwa, Advocate, who had allegedly wronged the appellant, but the application containing the allegation of fraud was filed by the appellant on 5th March, 1978. No reason whatsoever has been given for his more than one year's silence qua the fraud alleged to have been played by his first counsel.
Looking at all the circumstances I am convinced that the appellant was a party to whatever Ch. Muhammad Ashraf Bajwa, Advocate, had done on his behalf and, therefore, he cannot escape the legal consequences of his failure to deposit zar-e-panjam and pay the requisite court-fee on his first appeal in time.
6. As stated above, one of the grievances voiced by learned counsel for the appellant was that since the appellant's application for extension of time for depositing zar-e-panjam was not decided by the learned trial Court before the date fixed for the deposit thereof, the appellant was deprived of an opportunity to make the deposit in question during the period allowed to him. The last date for making the deposit was 12th May, 1976 and the application for extension of time was made on the said date. The reason given in the said application for non-deposit of zar-epanjam earlier was that the appellant had no funds to make the deposit. Therefore, if the application had been dismissed on 12th May, 1976 even then it would not have been possible for the appellant to make the deposit in question on the last date. Moreover, as indicated above, the plea raised by him in his aforesaid application before the learned trial Court was at variance with the one taken by him in his application dated the 5th March 1978, made to the learned District Judge inasmuch as in the latter the stand taken by him was that he paid the amount representing zar-epanjam to his counsel. Thus, the assertion made in his application before the trial Court that he had no funds to deposit zar-e-panjam was belied by what he had stated in his application before the first appellate Court.
7. The case of Elahi Bakhsh and others, which was relied upon by the learned counsel for the appellant, was a revision petition made to the High Court. In the said petition the respondent, who was plaintiff in the suit giving rise to the revision was ordered on the 22nd September, 1965 to deposit zar-e-paniam amounting to Rs, 9,300 before 9th October, 1965.
8. Before the above time fixed by the Court for the deposit money could expire, the respondent made an application to the trial Court on the 25th of September 1965 requesting that the order of the deposit of cash in Court may be modified and she may be permitted to give personal security instead of depositing the probable I/5th value of the property in dispute. The grounds for this application were that the respondent had filed another suit for pre-emption in which she had deposited Rs, 2,000 as zar-e-panjam and the same time had paid Rs, 1,000 as land revenue etc. To the Government. It was further submitted that due to the emergency conditions in the country the plaintiff had not been able to collect her dues from the Arharis and as such she was not in a position to pay Rs, 9,320 for a period of three or for months till her Kharif crop was harvested. This application of the respondent was taken by the Court and the office report was called for the 29th of September 1965. On that date the Court ordered that the application for furnishing personal security instead of cash deposit should be heard on the 9th of October 1965 for which date the original suit was already fixed. On the 9th October, 1965 the application for the furnishing of security was not traceable on the Court file and on the request of the counsel for the plaintiff-respondent the case was adjourned to 24th of November 1965, and the request of the counsel about the extension of time was also accepted that the sum of Rs, 9,320 be deposited before the next date.
On the 22nd of November, 1965 another application for the extension of the time for the deposit of the 1/5th probable value was made on behalf of the plaintiff-respondent. On 24th of November 1965 the Court ordered that the previous application for furnishing personal security should be traced by the office and the case was adjourned to the 15th of December 1965. On this adjourned hearing it was found that there was a deficiency in the court-fee to the extept of Rs, 107.25 which was ordered to be made up by the 3rd of January 1966. The application for the personal security had also been traced out on that date and since the copy was not supplied to the other side the respondent was burdened with a sum of Rs, 8 as costs for adjournment. On 3rd January, 1966, the case was adjourned to the 10th of January 1966 because the counsel for the respondent was not able to produce the receipt for handing over the copy of the application to the petitioner and as such the respondent was burdened once again with costs. On the 10th of January 1966 the application for the extension of the time as well as the application for the deposit of personal security were considered by the learned Senior Civil Judge and the prayer for the deposit of personal security was rejected and the respondent was ordered to deposit a sum of Rs, 9,320 by the 1st of February 1966 and she was also burdened with a sum of Rs, 50 as costs.
9. The order of the trial Court in this behalf was challenged in revision but was uphled by Muhammad Fazle Ghani Khan, J. (as he then was) for reasons given in the following extract from his judgment :- "I have given the proceedings of the Court with some detail in order to determine whether there has been any gross negligence on the part of the plaintiff by which it could be said that the discretion should not have been exercised in favour of the plaintiff by the trial Court. In the first instance on the 2nd of September 1965 the Court ordered that zar epanjam should be deposited before the 9th of October 1965 but before that time could run out the plaintiff made an application on the 25th of September 1965 that due to the fact that she had deposited a sum of Rs, 2,000 as zare panjam in another pre-emption case and for reasons of emergency conditions in the country some Arhatis were not paying her money which was due to her and were promising to pay her in the near future as such she was unable to deposit the zare panjam but was prepared to give personal security. The trial Court could have easily dismissed this application if it was not prepared to accept the personal security of the respondent for the zare panjam. Had it been done the respondent could have had enough time for the deposit of rare panjam before the 9th of October 1965. But this application was kept pending and was ordered to be taken up on the date fixed for the purpose. Thereafter the application remained untraceable and although the Court extended the time for the deposit of the money from time to toe the application for personal security was not available on the Court file till the 15th of December 1965 and ultimately it was rejected for the first time by the order under revision.
' In these circumstances the respondent could not be said to be either negligent or in any way guilty of such an act which should disentitle her to the exercise of discretion in her favour. Moreover I find that the Court extended time for the deposit of Rs, 9,320 in the presence of the defendant- petitioners on the 9th of October 1965 but no objection was taken on their behalf. The Court had granted time for the deposit of the money up to the 24th of November 1965 but before that time could run out the respondent made another application for the extension of the time but no decision was given by the Court on that application on the 24th of November 1965 nor any specific order refusing the grant of extension of time was passed. On the other hand the Court passed an order that the copies of the applications should be given to the respondent. Again on the 15th of December 1965 the Court did not pass any order either refusing or accepting the application for the extension of the time but adjourned the case with costs against the respondent. On the 3rd of January 1966 the Court once again passed no order one way or the other on the applications, for the extension of the time as well as the application for giving personal security which had been traced by then but adjourned the case to 'the 10th of January 1966 burdening the respondent with costs for the second time.
' In view of the facts enumerated above it is clear that the respondent had been prosecuting her case with due diligence on all the dates when the case was adjourned from time to time and had been making request for the extension of the time for the deposit of the cash security and also had been pressing that personal security should be taken from her but in fact it was the fault of the Court that no order was passed on either of these two applications till 10th of January 1966. These facts are quite distinguishable from the facts mentioned in the above-noted two cases where in each of these cases the plaintiff was found to be at fault. Had the respondent been at fault or had tried to do anything which could have possibly reflected upon her conduct that she was seeking extension of time by false excuse for deposit of money I would have certainly applied the principles laid down in the above noted two authorities. But since her first application was made on the 25th of September 1965 and she had given good reasons for non-deposit of the money and that application was not decided by the Court till the 10th of January 1966 1 do not think that the plaintiff should be made to suffer for the inaction of the Court which was unable to decide an ordinary application for the deposit of personal security for a period of almost tour months."
' The two cases referred to in the above extract have been reported as Saeed Ahmad and others v.
Karam Singh and another (1) and Gharib Shah v. Alain Shah (2).
10. From what has gone above, it is evident that the facts of the case of Elahi Bakhsh and others were quite different from those of the case in hand. Some of the distinguishable features which deserve to be highlighted are as follows :
(i) In the precedent case application for furnishing security was made about 15 days before the date by which zar-e-panjam was to be {{FOOT NOTE}}
(1) PLD 1949 Lab. 380 (2) PLD 1952 Pesh. 26 {{FOOT NOTE}} deposited but in the instant case application for extension of time was given on the last date for making deposit of zar-e-panjam.
(ii) The plea raised in the case under report for non-deposit of zar-epanjam was different from the one taken in the instant case and the former had found favour with the trial Court as well as the High Court.
(iii) In the case of Elahi Bakhsh and others the view taken was that the plaintiff had not obtained extension "by false excuse" but in the case in hand the plaintiff did offer false excuses inasmuch as he had taken contradictory positions before the two Courts below for securing extension of time.
(iv) in the cited case the Court had not decided the application for furnishing personal security for for months but there was no such delay on the part of the trial Court in deciding the application of the appellant in the case in band.
' The case of Elahi Bakhsh and others therefore, being distinguishable on facts cannot be made use of by the appellant.
11. Before proceeding further I would also like to make it clear that in a pre-emption case if the plaintiff makes an application for extension o time for depositing zar-e-panjam or for substitution of order for case deposit by an order for furnishing personal security before the date fixed by the trial Court for deposit of zar-e-panjam but his application is not decided prior to such date, that alone would not enable him to escape legal consequences of non-deposit of zar-e-panjanz by the stipulated date. When such an application is filed by him by alleging certain facts in support thereof the trial Court, more often than not, would like to verify those facts by obtaining reply of the opposite-party or otherwise before passing a final order. If the Court adopts that course it would be in consonance with the principles of natural justice and would, in a way, be beneficial for the plaintiff inasmuch as if his plea ultimately finds favour with the trial Court he would be granted the relief asked for by him. But if on hearing the opposite side the Court holds that there is no substance in the plea raised in his application, the plaintiff cannot insist for the grant of relief by blaming the Court for not dismissing his application in limine as soon as it was submitted, especially when he waits for the eleventh hour t' submit the application. When he files the application instead of making the deposit he does so at his own risk, and, therefore, if his application ultimately dismissed he cannot then turn round and plead that it was an act of the Court for which he had not been able to do the needful in time. If a party has to adopt a safer course, he would be well advised to apply for extension of time for deposit of zar-e-panjam or furnishing of securit instead of making that deposit soon after the making of direction for the deposit of zar-e-panjam so as to be able to obtain a final order thereon, after the Court has heard the other party, sufficiently before the stipulated data so that in the event of the rejection of the application, he may have adequate time to secure compliance with the original order of the Court.
In the case before me the appellant had two months' time to deposit zar-e-panjam but he chose the last day of the said period to make the application selecting extension of time for making that deposit or furnishing of security. He cannot, therefore, be allowed to make capital out of the non- disposal of his application on the day on which it was submatted.
12. What follows from the above discussion is that there is nothing wrong with the order of the learned trial Court by which the appellant was non-suited for not depositing zar-e-panjam in time.
The order of the learned Civil Judge in this behalf, however, suffers from a technical defect inasmuch as he had ordered the dismissal of the suit for the aforesaid lapse on the part of the appellant although it should have rejected the plaint under subsection (4) of section 22 of the Punjab Pre-emption Act. His order shall, therefore, be deemed to be an order of rejection of plaint and not of the dismissal of the suit.
13. As for the non-payment of requisite court-fee for his first appeal-it is not disputed that the appellant had paid deficient court-fee at the time of filing that appeal and the deficiency in court- fee was made good after the running out of the period of limitation prescribed for filing the appeal.
Permission of the first Court of appeal was also not obtained for making up the deficiency nor any reason was given for non-payment of the requisite court-fee in time except that the appeal was filed by the appellant's counsel of his own. 1 have already ' repelled the appellant's contention that the appeal was presented by his counsel without associating the appellant therewith. There is thus no reason for overlooking the appellant's default in the matter of payment of proper court-fee in time. Since he had not made good the deficiency in court-fee within the period of limitation, a valuable right had accrued to the respondent due to the running out of the period of limitation which cannot be taken away from him especially when the appellant had not shown sufficient cause for his default. The case of Mst. Walayat Khatun cited by the learned counsel for the respondent is the latest authority in point. The learned District Judge was, therefore, justified in holding that the first appeal was liable to be dismissed for non-payment of proper court-fee within the period of limitation.
14. There is no merit in this appeal. It is, therefore, dismissed with costs.