' By filing the instant constitutional petition, the petitioner has challenged the judgment dated 14.10.2011 rendered by the learned Addl. District Judge, Samundari, whereby, the civil revision filed by the respondents was accepted and order dated 1.7.2011 passed by learned Civil Judge was set aside, through which, he declined to allow the extension of time for deposit of amount in the sum of Rs, 8,50,000/- 2.The synopsis of the case are that Tasawar Hussain, Respondent No,2 (hereinafter will be referred 'as decree holder) filed a suit for possession through pre-emption against the present petitioners (herein after will be referred as judgment debtors) which was decreed by the learned trial Court vide judgment and decree dated 22.6.2011 with the following conclusion: ' "Consequently, I feel that there is no option except to pass the decree in favour of the plaintiff against the defendants subject to deposit of the amount mentioned in the sum of Rs,8,50,000/- by the plaintiff in the Court within 7 days, as per award for properties in both the suits otherwise the suit shall be deemed dismissed. No order as to costs. File be consigned to record room after its due completion."
' The said amount was admittedly got deposited by the decree holder on 30.6.2011 and he also filed an application for extension of time on the same day before the Court of first instance, which had passed the above referred decree. The learned trial Court after fetching report from his office dismissed the same. Being aggrieved, the decree holder filed revision petition before learned lower revisional Court, which has been accepted vide impugned judgment referred in Para 1 ante and being dissatisfied the instant constitutional petition has been filed by the judgment debtor.
3. Learned counsel for the judgment debtor has argued that the learned trial Court passed a conditional decree in favour of the decree holder, who was bound to comply with the conditions embodied in the decree and on his failure, the learned trial Court had rightly dismissed his application for extension of time. He has further submitted that after the announcement of judgment and decree, the learned trial Court had become functus officio and there was left no scope and jurisdiction to extend the time for the Court, which passed the decree. Learned counsel for the petitioner while relying upon the cases reported as "Muhammad Yousaf and others Vs. Sain Akhtar" (2007 SCM R 1485), "Assar Ali Shah through L.Rs and 2 others Vs. Syed. Muzaffar Din Shah and 4 others" (2007 SCM R 724), "Shujat Ali Vs. Muhammad Riasat and others" (PLD 2006 Supreme Court 140), "Riaz Hussain Vs. Nazar Muhammad and others" (2005 SCM R 1664) and "Ahmed Yar Vs. Abdul Razzaq and 2 others" (2002 M LD 1010) has prayed for the acceptance of the writ petition and setting aside of the impugned judgment for extension of time to deposit the decretal amount.
4.Conversely, the learned counsel for the decree holder has supported the impugned judgment and prayed for dismissal of the instant writ petition.
5.Before dealing with the arguments advanced by the learned counsel for the parties, it will be appropriate to examine the relevant provision of law through which a Court while decreeing a suit for preemption requires the decree holder to deposit the balance sale price. Section 25 of the Punjab Pre-emption Act, 1991, is relevant, which is reproduced hereunder for ready reference:-- "25. Deposit or refund of excess price.--(1) Where a Court passes a decree in favour of 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.
(2) 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."
6. It is to be noticed that the above referred provision of law permits a Court to require the decree holder to deposit balance sale A price within 30 days of the passing of decree. No doubt the word 'shall' is occurring in the provision, but the same cannot be termed mandatory as it is also significant that this provision does not entail any penal clause at its end as against the preceding Section 24 of the said enactment, which entails the said clause. It is settled by now that where any provision does not contain any penalty/consequences for its non-compliance, the said provision cannot be termed as mandatory merely by the occurring of word 'shall' therein, but the same will be deemed directory in nature and the discretion can be exercised by the Court in a reasonable manner while applying judicious manner to promote the ends of justice. The Civil Procedure Code also provides a method for chalking out a decree when the Court decreed a suit for pre-emption in Order XX Rule 14(a)& (b) which is reproduced hereunder for ready reference:-
(a) specify a day on or before which the purchase money shall be so paid, and
(b) direct that on payment into Court of such purchase money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a) the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase money and the costs (if any) are not so paid, the suit shall be dismissed with costs.
7. While keeping in mind above referred provisions as well as the judgment and decree dated 22.6.2011, whereby, the pre-emption suit of the decree holder was decreed, the concluding lines, whereof have been reproduced supra, it is found that the Court used the words "shall be deemed dismissed" instead of using the words like "shall stand dismissed", which clearly shows the intention of the Court that it did not become functus officio on the day of passing the decree. However, use of the words "shall be" in this regard indicate that till the end of events likely to be occurred in the future in relation of the condition imposed in the judgment and decree, the Court remained itself alive and when any Court uses the words in its finding entailing penal clause "shall be dismissed or decreed" whatever the case may be, it makes such a decree of preliminary nature and said decree cannot be termed as final decree. But where a Court uses the words "stood dismissed" in its penal clause, then to my mind such a judgment and decree will fall within the meaning of final decree. So the concluding words that "otherwsie the suit shall be deemed dismissed" reflects that the Court, who passed the decree, had still to control over the matter.
8. I am fully in agreement with the preposition that decree normally puts end to a suit and power of Court to pass any other order with respect to that particular suit thereafter also comes to end as the Court becomes functus officio but in case of a preliminary decree, or where the Court still reserves its control over the matter, the same does not become functus officio and still retains control over the subject matter. Despite presence of a default clause in the decree, Court was not precluded to extend time on the strength of powers conferred to.
9. Next question that whether in the present case the decree holder remained indolent or vigilant to deposit the balance sale price before the Court is also important. The perusal of application for extension of time filed by the decree holder before the trial Court reveals that he applied for the certified copy of the judgment and decree on the very next day of passing of the judgment and decree i.e, 23.6.2011, which was supplied to him on 29.6.2011 and he thereafter rushed to the concerned bank for the deposit of the balance sale amount, but till that time the bank was closed and he, on the very next day i.e, on 30.6.2011, not only deposited the amount, but also filed the application for extension of time. The alleged assertion of the decree holder was not denied by the judgment debtor on its merit. The decree holder deposited the amount on the next day after the receipt of the attested copies of the judgment and decree for which he applied only after one day, when it was delivered by Court. All this was done by the decree holder vigilantly and his indolent act is no where reflected in the said series of acts.
10. The case law referred by the learned Counsel for the judgment debtor is distinguishable as in Mohammad Ashraf s case (supra) while passing the conditional decree on 22.7.1984 the concerned Court imposed the condition that in failure to deposit balance sale price on or before 17.9.1984, the suit shall stand dismissed. In the said case almost 2 months (a reasonable) time was granted, whereas, in Israr Ali Shah's case (supra) the suit was decreed on 27.7.1986 with the direction to deposit balance amount within a period of one month, failing which the decree shall be null and void and in Shujaat Ali's case (supra) the suit was decreed on 30.3.2004 with a condition for deposit of balance consideration within a period of 2 months otherwise suit having stood automatically dismissed. However, in Riaz Hussain's case (supra) the suit was decreed on 9.10.1984 with a condition to deposit the remaining sale price till 9.12.1984 failing which the suit stands dismissed. The minute reading of the said judgments reveals that in the said cases, at the time of passing conditional decree the phrase "shall be deemed to be dismissed" was not used as in the present case and secondly in all the said cases maximum/reasonable time had been allowed by the concerned Court for the deposit of balance price. Moreover, it is also not clear from the perusal of the said judgment's that the decree holders vigilantly on the same day when they received the certified copies had moved the application for the deposit of balance sale price. The basic difference is that in the case in hand learned trial Court only granted 7 days time to the decree holder for deposit of the remaining sale price, whereas, the law has provided that the Court will require the pre-emptor to deposit balance sale price within a period of 30 days whereas in the cases referred by learned counsel for the judgment debtors, as discussed above, maximum time was granted to the preemptor to deposit the remaining amount. In view of such facts and circumstances, this Court is of the view that the learned lower revisional Court did not commit any illegality or perversity while passing the impugned judgment, which is based on sound reasons and does not call for any interference by this Court. Even otherwise, the learned counsel for the petitioners failed to point out any illegality, perversity or jurisdictional defect in the impugned judgment to warrant interference by this Court in the writ petition which cannot be heard as an appeal against the original order.
11. The epitome of the above discussion is that the instant writ petition being devoid of merit and substance is hereby dismissed.