NASIM HASAN SHAH, J.-This appeal by leave of this Court is directed against 'the judgment and order dated 30-3-1973 passed by the Lahore High Court in Civil Revision No. 690 of 1969.
2. The facts which form the background, are that the appellant herein brought a suit to pre-empt the transfer of land in dispute in favour of respondent No. 1 by respondent No. 2 herein describing the transaction as sale. The suit was resisted by the respondents on the ground that the transaction was an exchange and not a sale that in any event the appellant did not possess a superior right of pre-emption. The learned trial Court held the transaction to be a sale and decreed the appellant's suit on 13-1-1969 on payment of Rs. 12,000 including the sum of Rs. 1,000 already deposited as 1/5th probable sale price-and directed that the amount should be deposited in Court on or before 13-2-1969 failing which the appellant's suit was to stand dismissed.
3. Against the judgment of the learned trial Judge both tile parties filed separate appeals. In the appeal by the appellant herein on an applica--tion made in that behalf, the learned District Judge suspended the operation of the decree on 8-2-1969 in so far as it related to the deposit of the pre- -emption money.
4. The learned District Judge on 21-6-1969 dismissed both the appeals and maintained the judgment of the trial Court. However, the learned District Judge in the appeal filed by the appellant herein did not make any direction with respect to the deposit of pre-emption money, notwithstanding that the operation of the decree dated 13-1-1969 had been suspended under the order dated 8-2-1969 and remained so until the decision in the two appeals, the terminal date for deposit (13-2-1969) having expired in the meantime. The appellant did not make the deposit of the remaining sum of Rs. 11,000 after the dismissal of his appeal but submitted an application on 11-7- 1969 before the District Judge for extension of time originally fixed by the trial Court for the deposit of the pre-emption money. The learned District Judge dismissed this application on 18-7-1969 observing :- "In case where the lower Court has already fixed the time for the deposit of the pre-emption money it is unnecessary for the appellate Court to refix the time or to enhance the time. At the time, the appeal was decided the period for depositing the pre-emption money fixed by the lower Court had not expired therefore, it was unnecessary to give fresh period or to extend the time. As on the application of the petitioner the operation of the impugned decree was suspended, therefore the unexpired period allowed by the lower Court for the deposit of pre-emption money restarted running from the date on which the appeal was dismissed. Six days were yet at the disposal of the appellant to obey the order of tile lower Court on the date on which the operation of the decree was suspended which means that within six days from the disposal of the appeal the petitioner would deposit the pre-emption money fixed by the lower Court. No grounds have been given why the petitioner could not deposit the pre-emption money within six days of the decision of the appeal. If any reasonable ground had been given for which he was prevented from depositing the amount within the said time, of course, his application would have been considered:
5. Dissatisfied with the above order, the appellant filed a revision petition (C. R. No. 690/69) before the Lahore High Court which was disposed of by a learned Single Judge of the said learned Court.
The following two contentions were raised before him:-
(i) The learned District Judge should have fixed the time for deposit in his order while disposing of the appeal of the petitioner. Reliance is placed for this purpose on Order XX, rule 14, C. P. C.
(ii) There was sufficient ground for condonation of delay particularly when the original decree of the learned trial Court was suspended by the learned District Judge."
Both the above contentions were overruled. As regards the first contention it was observed that the decree of the learned Additional District Judge was not that of variation of the decree of the trial Court and, therefore, the provisions of Order XX, rule 14, C. P. C. Could not be invoked. So far as the second contention was concerned, it was observed that no doubt it was correct that on the 8th February, 1969, the decree of the learned trial Court directing the appellant herein to deposit the amount in dispute by the 13th February, 1969, was suspended; this order of suspension remained operative only up to 21-6-1969. The appellant could have, therefore, made the necessary deposit up to 26th June, 1969. He could take advantage of the period of time which was left over after deducting the period during which the decree of the trial Court remained suspended by the learned District Judge, i. e. a period of five days. This was not done and instead the appellant filed an application for extension of time. In the circumstances of the case, it was within, the discretion of the learned District Judge to extend or to refuse to extend it. He had exercised this discretion against the appellant herein and it was not possible to interfere with the exercise of his discretion under section 115, C. P. C. The revision petition was accordingly, dismissed on the above view of the matter by order dated 30-3-1973. Hence this appeal.
6. Mr. A. R. Sheikh, learned counsel for the appellant, has addressed a lengthy argument in support of this appeal but the crux of his submission is that both the learned Single Judge, as also the, learned District Judge had overlooked the fact that during the pendency of the, appeal against the pre-emption decree, the First Appellate Court had suspended the operation of the decree of the trial Court. So far as the deposit of the pre-emption money was concerned, and, therefore, the appellant could not possibly have deposited the amount until the decision in the first appeal and by the time it was decided, the time fixed by the trial Court for the deposit of the pre-emption money had expired. Accordingly, the appellant had applied for extension of time for the deposit of the pre-emption money and soma time should have been allowed to him for doing so. In refusing to extend time for the deposit of pre-emption money in the above circumstances, the learned Single Judge committed a legal error and, at any rate, it was a case of arbitrary exercise of discretion.
7. The question, which falls for determination n this case, was also fully examined by the Full Court in the case of Shah Waif v. Ghulam Din alias Gaman and another (PLD 1966 SC 983). The majority consisting of S. A. Rehman, Fazle---Akbar and Muhammad Yaqub Ali, JJ. Observed as under:- "It is well settled that the operation of a decree, passed by a Court of first instance is not automatically suspended, on the mere filing of an appeal therefrom.
This being the position in law, unless in an appeal from the decree itself, the time fixed for deposit of the pre-emption money is varied, it seems that the successful pre-emptor can disregard the time limit fixed in the decree, at his peril. He might, of course, consider that the time allowed for payment by the trial Judge was too short, or that the pre-emption money fixed was excessive. In such a case, he might anticipate that the appellate Court would interfere, in the course of the appeal, with the decree and might give an extension of time for deposit of the correct amount. But if this anticipation is not realised in this regard and he has failed to deposit the money within the time fixed by the Court of first instance, the result must be that his suit would be dismissed."
8. The learned C. J. (Cornelius, C. J.) however, was of the view that "it is not correct to say that in a pre-emption suit if there is an appeal and the appellate Court does not extend the time for payment of pre--emption money but merely restored the order of the Court of first instance, on appeal from the order of the Court of first appeal, dismissing the suit, the time for payment must be regulated by the original decree. The matter in such cases could be corrected by obtaining from appellate Court an order supplementing its appellate decree by fixing a date for deposit of pre- emption money. The rule of `reasonable time' as laid down in AIR 1939 Nag. 279 can be applied and if power could not be derived from any other source, provisions of section 151, Civil Procedure Code, 1908, could be invoked." Hamoodur Rehman, J. Was inclined to a view similar to that expressed by Cornelius, C. J., namely, that in cases where the Appellate Court does not make any order regarding extension of time fixed by the lower Court in making the deposit, which has expired during the pendency of the appeal, the deposit may be paid within a "reasonable time" from the date of the appellate decree. In view of the dictum of the majority, reproduced above, it is arguable that in cases of the present kind, where the Appellate Court does not make any order extending the time with regard to the deposit of the balance of pre-emption amount on dismissal of the pre- emptor's appeal seeking modification of the sale price and the time fixed for making such a deposit has already expired during the pendency of the appeal, the suit is liable to be dismissed on account of the failure of his appeal. In fact, this view was advanced by Mr. A. R. Sheikh himself, in a very rent case entitled Ghulam Muhammad v. Irshad Ahmad (1982 P SC 795), decided on 25-4- 1982, wherein it was contended that on account of the provisions of Order XX, rule 14, C. P. C. The judgment of the trial Court must be given effect to exactly in accordance with its terms because in pre-emption cases the vendee judgment-debtor gains an extraordinary advantage if the plaintiff decree-holder defaults in complying with its terms in that, in the case of the pre-emptor's failing to deposit the amount on the date fixed by the Court, the suit shall be dismissed with costs with the result that a decree by force of statute comes into existence in favour of the vendee defendant, who, prior to the commission of this default by the pre-emptor was only in the position of a judgment-debtor. Hence it was submitted that such a decree cannot be permitted to be annulled by the Appellate Court passing an interlocutory order for extension of time.
9. In Ghulam Muhammad's case (cited above), the preemptor was to deposit Rs. 1,40,000, the balance of the sale price till 30th of June, 1975. He filed an appeal in the High Court, which suspended the payment of the balance amount of the sale price on 30-6-1975. However, the appeal was dismissed on 22-12-1975 but in that order, the time for depositing the balance of the decretal amount was extended up to 18th January, 1976. The order dismissing the appeal was challenged in this Court and on the stay application filed alongwith the petition for leave to appeal, a learned Single Judge passed an order further extending the time for deposit to 26th January, 1976, and the requisite amount was, indeed, deposited on 26th January, 1976. The question arose as to what is the efficacy of an interlocutory order, in a pre-emption matter, passed by an Appellate Court during the pendency of an application for leave to appeal? The contention of Mr. A. R. Sheikh, relying on the dictum of the majority in Shah Wall's case was that the deposit having been made beyond the time allowed by the High Court and the leave to appeal petition having been dismissed by the Supreme Court, in law there was no extension of time. But this contention was not accepted in view of some later pronouncements of this Court, namely, in Muhammad Shabbir and others v.
Bashir Ahmad (1974 SCMR 24) and Haji Ishtiaq Ahmad etc. v. Bakhshaya etc. (1976 SCMR 420), in the first mentioned case, it was held that the time for payment of the pre-emption amount fixed by the trial Court can be extended by the District Judge as an Appellate Court, through an interim order and the dismissal of the appeal will not affect the extension, while in Ishtiaq Ahmad v.
Bakhshaya the view was expressed that the higher Court can grant extension of time to make the deposit, but the time which may be allowed must be a "reasonable time". Relying on these pronouncements, Mr. A. R. Sheikh, in the present case, submitted that the learned District Judge should have given the appellant a reasonable extension of time in making the deposit for the balance of the pre-emption amount after dismissing his appeal on 21-6-1969.
10. A perusal of the judgments relied upon before us shows that the view expressed in the recent pronouncements of this Court is that the time for payment of the balance pre-emption amount can be extended by the Appellate Court by an interim order passed during the pendency of the appeal or while dismissing it and that even this Court can do so pending the hearing and disposal of a petition for leave to appeal file before it. In all these cases, however, the rule of "reasonable time" will apply.
11. The question arises as to what is the rule to be followed where the Appellate Court does not pass any order regarding the extension of time for depositing the balance of the pre-emption amount, as is the case here? In our opinion, in such cases, the rule laid down by this Court in Ansari Brothers v. Holy Trinity Church Trust (PLD1971SC700), must be followed. In this case, refer--ence has expressly been made to Shah Wali's case which still rules the field, as observed by this Court in Haji Nawab Khan v. Fazalur Rehman and another (1976SCMR502).
12. The question, which fell to be considered in that case has lucidly been noted in the Head Note of the printed judgment of Sajjad Ahmad Jan, J. (who dealt with the case in the High Court and which judgment was upheld by this Court) as follows:- "Where an appellate order or a decree affirms the decree or order of the lower Court, without any change or modification, including the time limit with regard to the performance of an act by a certain date, it supersedes the original Court's order in all its details and has to be implemented in the same context and the silence of the appellate order on the point of time cannot be construed as allowing a fresh period of time from the date of the appellate order equal to one allowed by the original Court. Where a decree or order is under an appeal the matter disposed of is re-opened and remains in abeyance, but the confirmation by the Appellate Court restores its provisions as they stood when it was passed.
Held: an appeal, by itself does not operate as a stay of proceedings under the decree or order appealed from. However, the position would be different in cases where the appellant obtains a stay order from the appellate Court stopping the operation of the order under appeal during the pendency of the appeal. The stay order suspends the operation of the original Court and when an order is suspended by a competent Court in its operation, its performance is obviously avoided and if in the meanwhile the date of the performance expires during the suspension period, the party that had to perform the act on that date cannot be visited with a penalty for not having performed it during the time when its opera--tion was suspended. In such cases, therefore, while the dismissal of the appeal brings about the restoration of the original decree, with all its contents, and provisions, the time for the performance of the act, which had been suspended during the pendency of the appeal is revived from the date of the appellate order to be performed within the period equal to that as enjoined in the original order."
See Holy Trinity Church Trust, Lahore v. Ansari Brothers (PLD 1963 Lah. 489).
This Court upheld the judgment of the High Court in the above case and its findings on this question have been summed up in the Headnote of the printed judgment as follows:- "Under the Rent Controller's order, dated 3-12-59, the tenant was given time up to. 6-1-60 for depositing the arrears of rent amounting to Rs. 6,480, but the future monthly rent was to be deposited before the 5th day of each month. Thus, the tenant was given 34 days in all for depositing the arrears-of rent. On the tenant's appeal, the learned District Judge, by his order, dated 4-1-60, suspended the operation of the Rent Controller's order. Thus 31 days elapsed between the Rent Controller's order and the appellate order suspending the operation of that order. On these facts, it is for consideration whether the said period of 34 days should be counted from 2-4-60 on which date the appeal was dismissed. The learned Single Judge of the High Court has held that the period allowed by the Rent Controller for depositing the arrears should be counted from the appellate order. But, according to the observations made in the case of Shah Wali v. Ghulam Din PLD 1966 SC 983 the rule of "reasonable time" should be applied in such a case. Under the rule of "reasonable time", the tenant in this case could, at the most, claim a period of 34 days from the appellate order for depositing the arrears as was allowed to him under the order of the Rent Controller less 31 days elapsed between the Rent Controller's order, dated 3-12- 1959 and the stay order, dated 4-1-1960 granted by the appellate Court. Hence the tenant, who had already spent 31 days before the said stay order, should have deposited the arrears within 3 days after the dismissal of the appeal on 2-4-1960. But the arrears amounting to Rs. 6,480 was not paid within those 3 days. Thus, applying the rule of "reasonable time", it is found that there was a default on the part of the tenant even in respect of the payment of Rs. 6,480 which represented the arrears up to November, 1959."
See Messrs Ansari Brothers v. Holy Trinity Church Trust.
13. The learned District Judge, in the order, which has been impugned before us, has acted strictly in accordance with the above rule, observing that "at the time, the appeal was decided the period for depositing the pre emption money fixed by the lower Court had not expired, therefore, it w unnecessary to give fresh period onto extend the time. As on the application of the petitioner the operation of the impugned decree was suspended, therefore, the un-expired period allowed by the lower Court for the deposit of the pre-emption money restarted running from the date on which the appeal was dismissed. Six days were yet at the disposal of the appellant to obey the order of the lower Court on the date on which the operation of the decree was suspended which means that within six days from the disposal of the appeal, the petitioner would deposit the pre-emption money fixed by the lower Court. No ground have been given why the petitioner could not deposit the pre-emption money within six days of the appeal' This view was not interfered with by the High Court and we do not think that the High Court acted illegally or arbitrarily in refusing to interfere with the order of the, learned District Judge.
Even if the rule of "reasonable time" as enunciated in Ishtiaq Ahmad's case which was strongly relied upon by Mr. A. R. Sheikh was to be applied, a close perusal of the judgment in that case shows that it was observed therein that the utmost concession that can be allowed to a pre- emptor, who had failed to make the deposit within the time specified in the decree granted to him .By the trial Court of the Appellate Court and in whose case no fresh extension of time is granted by the higher Court acting in first appeal, second appeal or revision, as the case may be, is the rule of "reasonable time" mentioned by Cornelius, C. J. And Hamoodur Rehman, J. In the case of Shah Wali.
In all such cases, their Lordships observed that the deposit must be made within a "reasonable time" from the decision of the last Court, failing which the suit must be dismissed in terms of the original decree.
14. In the cited case (of Ishtiaq Ahmad) there being no specific order by the appellate Court granting an extension of time for this purpose, it was held that the deposit should have been made within a "reasonable time" It was found that the deposit in that case having been made one month and 18 days after the dismissal of the appeal, the same could not be considered to be a "reasonable time" for doing the needful. Hence the suit of the pre-emptor was dismissed.
15. Mr. Khalid Farooq, appearing for the respondents, submitted that the "reasonable time", in the context of this case, would be the time which was still available for making the deposit on the date when the Appellate Court suspended the decree of the trial Judge which, in this case, would be six days, according to the calculation of the District Judge and 5 days according to the calculation of the High Court. He submitted that the appellant had himself gone in appeal, secured the suspension of the order of the High Court regarding the deposit and had to be very vigilant in taking the necessary steps, arising from the decision of his appeal.
16. We find force in this submission, especially because the learned District Judge, while dealing with the application of the appellant for extension of time has recorded an express finding that the time of six days, which was available to the appellant for making necessary deposit was sufficient.
He further added that if any reasonable ground had been given for which the appellant was prevented from depositing the amount within the said time, his application, of course, would have been considered.
17. Mr. A. R. Sheikh, however, submitted that the judgment of the District Judge, was announced on 21-6-1969, in the absence of the parties because the learned District Judge was absent on the previous date of hearing (6-6-1969) and the date 21-6-1969 was fixed by his Reader. Therefore, neither the parties nor their learned counsel were bound to attend the Court on the said date, even though they might have been present in Court when the said date was fixed. However, he conceded that the appellant had definitely become aware of the result of the appeal on 23-6- 1969, when he filed an application for supply of a copy of the judgment and decree. This copy was supplied on 2-7-1969. As he had to consult his Legal Advisers regarding the course to be followed it took some days to do so. After these consultations he filed an application for extension of time to make the deposit on 11-7-1969, but the same was dismissed on 18-7-1969.
18. We do not think that even on the hypothesis being urged before us the steps taken by the appellant towards depositing the pre-emption amount were steps which showed that he was acting within a "reasonable time". The order sheet of the Court of the learned District Judge shows that the case was fixed for announcement of orders on 6-6-1969, on which date the learned District Judge was absent. The Reader, therefore, fixed the case for the same purpose for 21-6-1969, in the presence of the counsel for both the parties. The judgment in the case was also announced on the said date. Prudence required that someone should have been present on 21-6-1969 before the Court for discovering what happened on the said date. In fact, the appellant had become aware of the result of his appeal on 12-6-1969 because in the application filed on 11-7-1969 praying for fixation of time to make the deposit, it is clearly mentioned that an order was passed on 21-6-1969.
In any case, he applied for a copy of the judgment on 23-6-1969 and was, therefore, definitely aware of the result of his appeal at least on that day. He could, therefore, have. Easily made the deposit by 26-6-1969. However, he took no action in the matter until 11-7-1969 and wasted nearly 18 days after admittedly becoming aware of the order, although the law on the subject, as explained in the Holy Trinity case and in Shah Wall's case provided sufficient guidance on the subject.
19. 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. This 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 ha 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 this case. Therefore, after obtaining the copy on 2- 7-1969, be could not- waste any further time.
20. In these circumstances, we consider that no ground whatsoever has been made out for interfering with the order of the District Judge, as upheld by the High Court.
21. This appeal must, therefore, fail and is hereby dismissed with costs.