This regular second appeal is directed against the judgment and decree dated 5th May, 1972 of the learned District Judge, Bahawalpur whereby he accepted the appeal of the respondent and decreed his suit for possession by pre-emption of the land in dispute.
2. The relevant facts of the case are that Allah Ditta respondent filed a suit for possession through pre emption of the disputed land on the ground that he was the son of the vendor and had a superior right to pre-empt the sale in dispute as against Shah Nawaz appellant who was a stranger in the estate. The suit was resisted by the vendees and on the basis of the pleadings of the parties several issues were framed but the suit was dismissed by the learned trial Judge holding under issue No. 3 that the pre-emptor/plaintiff waived his right of pre-emption by his conduct vide his judgment and decree dated 24th November, 1970. The respondent challenged the aforementioned judgment and decree in appeal and the learned District Judge, Bahawalpur vide his judgment and decree dated 5th May, 1972 reversed the findings of the learned trial Court under issue No. 3 and decreed the suit in favour of the respondent as afore--mentioned. The operative part of the judgment and decree passed by the learned District Judge is reproduced below:--- ---A decree for possession by pre-emption of the land in dispute is passed in favour of the appellant Allah Ditta conditional upon depositing by him a sum of Rs. 25,000 less one-fifth of the preemption money which may already have been deposited by him, on or before 31st July, 1972. If he deposits this amount by the date mentioned above his suit shall stand decreed and in the event of his failure to do so, his suit shall stand dismissed."
3. The appellant challenged the judgment and decree under appeal mainly on the ground that the learned, District Judge misread the evidence and arrived at incorrect conclusion, in disregard of material on the record while deciding issues Nos. 3 and 4. Issues Nos. 3 and 4 are reproduced hereunder for facility of reference "(3) Whether the plaintiff has waived his right for pre-emption by his conduct ? O. P. D.
(4) Whether the suit is barred by time ? O. P. D."
4. Learned counsel for the appellant at the time of argument sought permission to raise a point not incorporated in the memorandum of appeal which came to his notice subsequent to the filing of the appeal that respon--dent/pre-emptor did not deposit decretal amount as directed by the learned District Judge on or before 31st July, 1972 as such the learned First Appellate Court had no jurisdiction to extend time for depositing the same having become functus officio after the delivery of judgment. It was pointed out that the respondent did not deposit the decretal amount within time but moved an application on 29th July, 1972 seeking permission to deposit the pre-emption money, which application was rejected by the learned District Judge on the same date. The respondent then moved another application on 31st July, 1972 for the same relief, which was allowed, and he was directed to deposit the pre-emption money by 8th August, 1972. It was contended that the appellant was not issued any notice nor he was afforded an opportunity to raise objection to the maintainability of the second application seeking same relief regarding which his first applica--tion was dismissed and that the order was passed by the Court after it became functus officio. Since the appellant was not impleaded as a party, as such he could not include his objection in the memorandum of appeal. He raised this point with the permission of the Court at this stage as envisaged under O. XLI, r. 2, C. P. C. He relied in support of this contention on Shah Wali v. Ghulam Din alias Gaman and another (PLD 1966 SC.983) Jalil Ahmad, etc. v. Muhammad Ishaq etc. (PLD 1972 Kar. 341), Sh. Ayezuddin v. Priya Sankar Choudhury (PLD 1956 Dacca 280) Maung Ba and another v. Maung Tha Yin and others (AIR 1931 Rang. 314) and Mst. Walayat Khatun v. Khalil Khan and another (PLD 1979 SC 821) It was next contended that the learned District Judge did not correctly decide issue No. 3 as it was proved from the evidence on record that the respon--dent/plaintiff having participated in the sale of the disputed land had waived his right to pre-empt the same.
5. Learned counsel for the respondent on the contrary argued that the appellant did not raise the, point of no n-deposit of the pre-emption money within the time fixed by the Court, in the memorandum of appeal as such, he cannot be allowed to raise the same at this stage. He relied on Jiwan Shah etc. v. Mst.Fateh Bihi and another (AIR 1921 Lah. 228). It was also sub--mitted that the decree passed by the First Appellate Court was not in accordance with the provisions of Order XX, rule 14, C. P. C. The direc--tion given by the Court for deposit of the decretal amount before 31st July, 1972 was not complied with and the Court had not become functus officio. It was submitted that the Court was competent to extend time for the deposit of the pre-emption money and the suit could not be thrown on that ground alone. Reliance was placed on Mahanth Ram Das v. Ganga Das (AIR 1961 SC882) and Gopal Fateh Singh v. Sis Ram and another (AIR 1949 E P 283).
6. On the question of waiver learned counsel for the respondent stated that the evidence on the record amply proved that the, plaintiff respondent was present at the time of transaction but there was no evidence that he had waived his right as contemplated under the law.
7. I have given careful consideration to the arguments advanced by learned counsel for the parties and perused the relevant record in the light of their submissions. It is not denied that the decretal amount was not paid within time fixed by the Court, viz. On or before 31st July, 1972. It is also proved from the record that the respondent moved an application on 29th July, 1972 seeking extension of time to deposit the decretal amount which application was rejected on the same day and it was thereafter that the second application was moved on 31st July, 1972 which was allowed whereby the respondent was directed to deposit the decretal amount before 8th August, 1972 and no notice was issued to the appellant nor he-was heard when the order allowing permission to the respondent for deposit of the pre-emption money was passed by the First Appellate Court The tenor of the operative part of the judgment and decree reproduced above vividly shows that the respondent was required to deposit the pre--emption money on or before 31st July, 1972 on its failure, his suit stood dismissed as directed by the Court. Since the deposit of the amount was not made on or before 31st July, 1972 thereafter the Court had no control over the matter and the judgment and decree dismissing the respondent's suit attained finality. It is also clear that having rejected application dated 29th July, 1972 the learned District Judge had exercised jurisdiction and it was not open to him to re-exercise the same after two days. After the expiry of the period fixed by the Court for the deposit of the decretal amount a valuable right had accrued in favour of the appellant which could not have been taken away by unilateral ex-parte order passed by the learned District Judge, Bahawalpur. Even otherwise there was no sufficient reason shown in the application by the respondent having failed to comply with the order of the Court in depositing the pre-emption money before 31st July, 1972. The appellant did not know that the learned District Judge had accorded permission for the deposit of the decretal amount upto 8th August, 1972 as he was not aware of the same. His omission to raise objection in the memorandum of appeal in this regard, therefore, was not his fault and thus condonable in the circumstances of the case. I, therefore, allowed him to raise this legal point at this stage. The extension of time allowed by the learned District Judge amounted to variance of the judgment and decree which could not have been done prejudicial to the interest of the appellant without notice to him and having not afforded him opportunity of hearing. The authorities relied by learned counsel for the appellant on the point raised above fully support his contention. For instance in Mst. Walayat Kha:un v. Khalil Khan etc. It was held that no indulgence could be shown for grant of time having effect of causing prejudice to the opposite side whose title had become perfect by expiry of period of limitation. In Sh. Ayezuudin v. Priya Sankar Chaudhury it was held that where the decree or order fixing the time, was not final the Court retained control over the proceedings and was competent to extend time under section 148, C. P. C. But where the order was final the Court became functus officio and could not enlarge time. In such cases it was observed that the relief could be granted upon review by that Court or on appeal by a Court competent to entertain the appeal.
8. Lastly, in Shah Wali v. Ghulam Din alias Gaman and another it was laid down that section 148, C.
P. C. Did not apply where the period was fixed by a decree in a suit and the Court would retain no seisin over the suit. The principle underlying was that since a decree brought an end to a suit, the power of the Court to pass another order with respect to that particular suit thereafter was illegal because the Court became functus officio with regard thereto.
9. The cases referred to above by learned counsel for the respondent are distinguishable for instance in Jiwan Shah etc. v. Mst. Fateh Bibi and another it was within the knowledge of the appellant in that case that the land was ancestral but the same was not challenged before the Appellate Court and this new point was attempted to be raised in argument after limitation far appeal had expired. In the instant case, however, it was not in the knowledge of the appellant that the respondent, did not deposit the extension of time and allowed by the learned District Judge.
The omission to raise the point was for sufficient reason, and therefore, condonable. For the same reason the case cited as Gopal Fateh Singh v. Sis Ram and another was not applicable to the circumstances of the instant case.
10. The case reported in Mahanth Ram Das v. Ganga Das was also on different facts as in that case non-compliance of the direction for payment of deficient court-fee within time fixed by the Court was not held fatal to the suit and it was observed that the Court could extend time under sections 148, 149 and 151, C. P. C. In that case the Court retained seisin over the suit and thus had the power to extend time as against the instant case where final order was passed and the Court had become functus officio when the order was not complied with on or before the fixed date.
11. For the reasons recorded above and taking guidance from the cases cited hereinbefore, I am of the view that the learned District Judge had no jurisdiction to allow the respondent to deposit the decretal amount on or before 8th August, 1972 and the suit of the respondent/pre--emptor stood dismissed on the expiry of the date, viz. 31st July, 1972 fixed by the Court.
12. I have checked up the evidence led by the parties under issue No. 3 and find that the learned trial Court had rightly held the respondent having waived his right to pre-empt the sale in dispute by his conduct as he remained present at the time of transaction with his father, the vendor in this case. The respondent did not cross-examine. Muhammad Ramzan (D. W. 4) and Hasham (D. W. 5) who had stated that Allah Ditta respondent/ plaintiff remained present at the time of transaction.
Mutation (Exh. P/5) also showed the presence of D. Ws. 3, 4 and 6 when the mutation in question was attested. Furthermore, there was apparent contradictions in the statements of P. Ws. Produced by the respondent plaintiff Abdul Rahman (P. W. 1) and Abdul Majid (P. W. 3) stated that the plaintiff/respondent resided with his father in the same house and contradicted the plaintiff on this point. The findings of the learned District Judge being conjectural were untenable.
13. In the result this appeal succeeds and is accepted, the judgment and decree passed by the learned District Judge is set aside and that of the learned Trial Court restored.
14. There shall be no order as to costs.