' YAHYA AFRIDI. J.---Through this single judgment, this Court shall dispose of two revision petitions, as common question of law is involved therein and both arise out of a consolidated judgment dated 4-12-2006 passed by the Additional District Judge-II, Mansehra. Where by the learned Appellate Court has allowed further time to the respondent for deposit of decretal amount. The particulars of the revision petitions are as follows:--
(i) Wali Khan and others v. Waheed Ghani Khan (C.R. No,94 of 2007).
(ii) Mumtaz Khan v. Waheed Ghani Khan (C.R. No,95 of 2007)
2. The brief and essential facts leading to the present petition are that the present respondent had pre-empted two sale transactions by exercising his right of pre-emption in respect of properties comprised in `Khasra' Nos.1503, 1504 and 1505 measuring 130 kanals' 8 `Marlas' to the extent of 532/13824 and 5/13824 shares, situated in Mauza Sachan Kalan' , Tehsil and District Mansehra, which has been transferred in favour of Wali Khan, Said Ghulam and Mumtaz Khan, petitioners in both the aforementioned petitions, vide Mutations Nos.4407 and 4425 dated 7-9-2000, respectively. In this regard, the respondent instituted two separate suits for possession through preemption on the basis of co-sharership, contiguity and participation in amenities and appendages.
' The suit of the respondent was contested by the petitioners by filing their respective written statements. Based on the contesting pleadings of the parties, the trial Court framed nine issues.
' The parties produced their evidence and after hearing learned counsel for the parties, the learned trial Court decreed both the suits of the present respondent and he was directed to deposit the remaining decretal amount, within thirty days vide separate judgments and decrees dated 12-7- 2005.
' Aggrieved thereof, the present petitioners impugned the same in appeal. The learned Appellate Court, while dismissing the appeals vide separate judgments and decrees dated 22-4-2006, directed the respondent to deposit the remaining decretal amount, within 30 days before the learned trial Court, failing which the suits were to be deemed as dismissed.
' The present respondent moved two separate applications dated 10-6-2006 and 9-6-2006, respectively, seeking extension of period for deposit of decretal amount. The said applications were contested by the present petitioners by filing their written replies. The learned Appellate Court, after hearing the learned counsel for the parties, accepted the said applications and the respondent was allowed to deposit the balance decretal amount, within 15 days, vide consolidated judgment and order dated 4-12-2006.
' Hence, the present revision petitions.
3. The learned counsel for the petitioners vehemently argued that the learned Appellate Court clearly held that in case of failure of the respondent to deposit the decretal amount within 30 days, his suit shall be deemed as dismissed; that after deciding the appeals, the learned Appellate Court had become "functus officio" and it could not extend the period for second time to deposit the remaining decretal amount by a further 15 days; that as the respondent has not complied with the directions of the Appellate Court, within the stipulated time of thirty days, therefore, his suit stood dismissed; that a valuable right had accrued in favour of the petitioners by not depositing the decretal amount by the respondent; and that no plausible reason was advanced by the present respondent in his application for extension of time, but the learned Appellate Court has wrongly and illegally exercised jurisdiction for extension of period. Learned counsel for the petitioners placed reliance on Muzaffar v. Ali Khan and 3 others (1989 CLC 2342), Muhammad Irshad v. Ch. Fazal Haq and 5 others (1991 SCMR 2149), Saadullah Khan and 2 others v. Sheikh Ghulam Qasim through Legal heirs and others (PLD 2011 Peshawar 47), Riaz Hussain v. Nazar Muhammad and others (2005 SCMR 1664), and Shujat Ali v. Muhammad Riasat and others (PLD 2006 SC 140).
' In rebuttal, learned counsel for the respondent vigorously argued that the learned Appellate Court was legally competent to extend the time for deposit of the decretal amount even after the decision of the appeal; that in this regard, the learned Appellate Court had rightly exercised its discretion, as the facts and circumstances of the case had justified extension of period for deposit of decretal amount; and that the respondent has not deposited the remaining decretal amount due to misunderstanding and the act of Court. Reliance was placed on Ali Ahmad v. Mushtaq Ahmad and others (1993 CLC 1219), Muhammad Nawaz and others v. Muhammad Sadiq and another (1995 SCMR 105), Rehmat Ali v. Nabi Ahmad and 2 others (2000 YLR 789), Mst. Mumlikat Begum v. Malik Nasrullah (2004 SCMR 1290). Gul Muhammad and others v. Mataa Muhammad (2004 SCMR 1600), Karam Ellahi's case (2010 CLC 1519) and Nawab Khan's case (PLD 2009 Peshawar 61).
4: Valuable arguments of the learned counsel for the parties heard and the available record of the case thoroughly considered.
5. In order to decide, the present petitions, it would be most appropriate to first address the following two legal issues:-
(I) Whether the, appellate Court had the jurisdiction/authority to extend period of payment of the balance pre-emption amount as provided under section 25 of N.-W.F.P. Pre-emption Act, 1987 ("Act")?
(II) Whether the appellate Court had the jurisdiction / authority to extend the said period of payment of the balance preemption amount after it had rendered its decision in appeal?
6. Reviewing the provisions of the Act, it is noted that Section 24 relates to initial. Payment of 1/3rd of sale price and' Section 25 relates to the final payment of the pre-emption money at the conclusion of the trial. The provisions read as follows:-- "24. Plaintiff to deposit sale price of the property.---(1) In every suit for pre-emption the Court shall require the plaintiff to deposit in such Court one-third of the sale price of the property in cash within such period as the Court may fix: ' Provided that if no sale price is mentioned in the sale-deed or in the mutation, the Court, shall require the deposit of one-third of the probable value of the property.
(2) Where the plaintiff fails to deposit one-third of the same price of the probable value of the property within the period fixed by the Court, his suit shall be dismissed.
(3) Where the plaintiff withdraws the sum deposited under subsection (1), his suit shall be dismissed.
(4) Every sum deposited under subsection (1) shall be available for the discharge of costs.
(5) The probable value fixed under subsection (1) shall be available for the discharge of costs."
".---(25. Deposit or refund of excess price.---(1) Where a Court passes a decree in favour of a pre-emptor on payment of a price, which is in excess of the amount already deposited by the preemptor, the Court shall require the pre-emptor to deposit the remaining 'amount within thirty days of the passing of the decree.
' Where a decree is passed for a lesser amount than the amount already deposited by the pre- emptor, the Court shall refund the excess amount to such pre-emptor."
The bare reading of aforementioned two provisions clearly provide that as far as the initial payment of 1/3rd of pre-emption money is concerned, the legislature has provided a penalty for its failure, which results in dismissal of the suit, as provided in subsection (2) of section 24 of the Act.
Thereby, the provisions of section 24 would be regarded as 'mandatory'. On the other hand, section 25 relating to the time period fixed for payment of balance amount of the pre-emption money at the conclusion of the trial, does not provide any penalty for its failure. Hence, the same is to be considered as 'directory' and not 'mandatory' .
' The present petitions relate to time period fixed for payment of the balance pre-emption amount in the decree and its extension, which is governed by section 25 of the Act.
7. As far as the authority of an appellate Court to extend the period granted under section 25 of the Act, the judicial pronouncements thereon by the apex Court are in concert that the appellate Court has the authority to extend the time period. The principle on the subject matter has been most eloquently stated by the Supreme Court in Muhammad Irshad's case (1991 SCMR 2149), wherein the full bench of the apex Court, after considering Bhai Khan's case (1986 SCMR 849), came to the conclusion that:- "In so for as the second point is concerned, the learned counsel for the respondent seems right that no attention was paid by the Appellate Court to the question of postponing the payment of the pre-emption money during the pendency of the appeal in a clear manner. If proper mind would have been applied the payment would certainly have been postponed. Who was at fault, the Court or the counsel for the appellant it is not necessary to determine in this case because on the law point decided in the case of Bhai Khan the Appellate Court was required even in a case where no application was made for interim order, to examine when deciding the appeal to give reasonable time to the appellant/pre-emptor. In that examination, the refusal to grant time could be only in exceptional cases. In this case the Appellate Court was bound to give reasonable time because there were no exceptional circumstances to exercise discretion otherwise."
(emphasis provided)
' The afore mentioned rule was reaffirmed by the apex. Court in Muhammad Nawaz's case (1995 SCMR 105) that:- "From the above-referred case, inter alia, it is evident that the consistent view of this Court is that 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 purposes may have expired."
(emphasis provided)
' Then in Nazir Ahmad's case (1999 SCMR 342), while referring to Johri Singh's case (AIR 1989 SC 2073), wherein, it was held that:-- "In the cases, of non-deposit of only a relatively small fraction of the purchase money due to inadvertent mistake whether or not caused by any action of the Court, the Court has the discretion under section 148, C.P. C. To extend the time even though the time fixed in pre-emption decree has already expired provided it is satisfied that the mistake is bona fide and was not indicative of negligence or inaction. The Court will extend the time when it finds that the mistake was the result of or induced by an action of the Court applying the maxim actus curiae neminem gravabit' an act of the Court shall prejudice no man."
' The apex Court reaffirmed it and held that:- "We are, therefore, of the view that the failure of the plaintiff/ appellant in deposit of pre-emption money was not intentional and it happened because of the error of the learned trial Judge in calculating the amount as explained above. In the circumstances of this case the plaintiff is entitled to the extension of time under sections 148, 151 and Order XLI, Rule 33 of the Civil Procedure Code."
' In Mst. Mumlikat Begum's case (2004 SCMR 1290), Gul Muhammad's case (2004 SCMR 1600), Riaz Hussain's case (2005 SCMR 1664) and (PLD 2006 SC 140), the apex Court did not grant leave in cases, where the time period was not extended for deposit of the pre-emption money under sections 24 and 25 of the Act.
' In Muhammad Yusuf's case (2007 SCMR 1485), the Full Bench of the apex Court after reviewing the string of cases relating to non-deposit of pre-emption money within the time allowed by the trial Court, finally held that in cases, where the decree clearly stipulated a self-operated default clause' for the suit to be dismissed on failure of payment of the balance pre-emption amount and the decree holder neither deposited the decretal amount nor sought extension of time from the appellate Court:-- "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."
In view of the 'ratio decidendi' of the above mentioned Judgments of the apex Court, it can safely be said that appellate Court has the authority to extend the period fixed by the trial Court under section 25 of the Act.
8. Now moving on to the second issue; whether the appellate Court after rendering its decision can extend the time period earlier fixed in its decision. It is settled principle of law that once the appellate Court had decided the appeal, it becomes functus-officio', unless its jurisdiction is again sought and agitated in review jurisdiction or to correct the any .Clerical or arithmetical error appearing in its decision.
' This matter has been dealt with in Muhammad Nawaz's case (1995 SCMR 105), wherein, it was held by the apex Court that:-- "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 iris 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."
' In the above mentioned case, the pre-emptor had prior to the filing of the appeal and seeking the extension of the time for payment of the balance pre-emption amount, had deposited the same, which was maintained and regarded by the Appellate Court as valid payment of. The balance pre- emption amount. It was in these circumstances, keeping the conduct of the pre-emptor in mind, that the apex Court considered the action of the pre-emptor to fall within the exception to the general rule of not allowing any exception after 'passing of its decision. However, the facts of the present cases are otherwise. The conduct of the present respondent was not as forthcoming as the pre-emptor in Muhammad Nawaz's case (Supra). It would be important to note that the pre- emptor respondent was initially granted thirty days by the Appellate Court to make the payment of the balance pre-emption amount. The respondent-pre-emptor failed to make the said payment.
His conduct, in the light of his actions cannot be termed as bona fide so as to fall within the exception referred to in Muhammad Nawaz's case. And finally, the validation to the deposit of the balance amount was granted by the Court, while the 'lis' was before it and not after its conclusion, as in the present petitions.
9. It was also argued on behalf of the respondent-pre-emptor that the time for deposit of pre- emption amount could be extended under section 148 of C.P.C, but this argument of the learned counsel for the respondent is also not sustainable because the benefit of the provisions of section 148 of C.P.C. Is only available, when there is no period fixed in the relevant statue itself. The said principle has been dilated upon and . Confirmed by the apex- Court in Hafiz Muhammad Ramzan's case. (PLD 2012 Supreme Court 764), wherein, it was held that; "The petitioner was obliged to make the deposit in terms of the above Order. (30 days time) and having failed to do so, .His suit was liable to be dismissed as per operation of the law straightaway (section 24). Thereafter, neither petitioner was left with any right to seek extension of statutory fixed time 'of 30 days, nor in law (under reference) it was permissible for the Court to grant any extension, because the Court "under no circumstances has the jurisdiction and the authority to extend this statutory period of 30 days, because the power/discretion of the Court to extend time as envisaged by section 148 of the C.P.C. Is only available to the Court, where the time has been flied, by the Court itself or under the Code of Civil Procedure, but where the time for the performance of an act has been fixed by some other statute, the Court in terms of section 148, C.P.C. Has no jurisdiction at all to enlarge and extend that time."
(emphasis provided)
' Moreover, the apex Court in Shujahat Ali's case (Supra),, though as an `obiter dicta', reaffirmed the decision of the revisional Court not to allow the extension of the time by the Appellate Court, when the said Court had decided the appeal.
10. After canvassing the provisions of the Act and the decision of the Supreme Court of Pakistan, as discussed hereinabove, this Court' notes that;
(i) The provisions of section 24 of the Act are 'mandatory' and the time fixed for payment of the initial 1/3rd of the sale price ought G not to be extended.
(ii) The provisions of section 25 of the Act are 'directory' and the Courts may in appropriate cases extend the time period for payment of the pre-emption amount decided.
(iii) The criteria for determining whether to allow the time period to the pre-emptor under section 25 of the Act, would depend upon whether the delay was caused due to 'bona fide' conduct of the pre-emptor or the 'act of the Court'.
(iv) After a Court has decided a case, it cannot, unless it has assumed review jurisdiction or to correct any clerical or J arithmetical mistake, extend the period of payment of preemption amount under section 25 of the Act.
(v) A Court having decided a matter cannot assume the jurisdiction pre-emption cases, as provided under sections 24 and 25 of the and extend the time period under section 148 of the C.P.C.
In Act, as the said statute has a stipulated time period mentioned therein.
11. This Court is adjudicating the present petition in its revisional jurisdiction, the scope thereof has been provided under section 115 of the Code of Civil Procedure, 1908 ("C.P.C."), which has been dilated upon by the august Supreme Court in Shumail Begum v. Gulzar Begum (1994 SCMR 818) and more recently, reaffirmed in Muhammad Idrees v. Muhammad Parvez (2010 SCMR .5). Keeping in view the guiding L principle regarding exercise of revisional jurisdiction rendered in the above titled cases, this Court considers that the Courts below, while deciding the matter did not apply their conscious mind to the facts of the case and wrongly applied and interpreted the law applicable thereto. Hence, warrants correction by this Court in its revisional jurisdiction.
11. Accordingly, for the reasons stated hereinabove, both the revisions petitions are accepted and the judgments and decrees of both M the Courts below are set aside and the suit of the pre- emptor-respondent is dismissed.