' GHULAM MUSTAFA MUGHAL, C.J.--- Thus aoorak has been field against the judgment and order passed by Additional District Judge, Sehnsa, on 05.05.2012, whereby the judgment and decree passed by the Civil Judge, Sehnsa, on 29.11.2011 has been set aside.
' Precise facts forming the background of the instant appeal are that Gul Bahar Khan (deceased) predecessor in interest of respondent herein, filed a suit for possession on he basis of right of prior purchase in respect of suit land comprising Khasra No, 328 measuring l 12 marlas, Khasra No,396 measuring 2 kanal 12 marlas, Kliasra No,404, measuring 5 kanal 1 merle total measuring 5 kanal 9 marlas situated' in Village Garhota Tehsil Sehnsa District Kotli against defendants in the Court of Civil Judge Sehnsa on 21.08.2009. It was stated that the suit land was in the ownership of defendant No,2, who sold the same vide sale deed dated 27.04.2009 to defendants/respondents. It was claimed that the plaintiff was co-sharer in the Khewat/Khata and his land is also adjacent to sold land. It was further averred that the defendant/vendee is lacking these qualifications, hence, the plaintiff has prior right of purchase in respect of the sold land vis a vis to vendee. It was claimed that the land was sold in lieu of Rs,9,00,000/- and the same amount was paid to defendant No, 2, which is also market value of the land but in order to deprive the plaintiff, from the right of pre- emption the amount has been entered in the sale-deed as Rs,28,00,000/- which in fact has not been paid.
' The suit was contested by defendant No,1 by filing written statement. It was pleaded by him that the suit is not maintainable in its present form. It was further stated that the plaintiff has no cause of action. It was claimed that the plaintiff has no prior right of purchase vis a vis to the vendee. It was further claimed that consideration amount was fixed as Rs,28,00,000/- which has been paid to defendant No,2, and the same is also the market value of the land. The learned trial Court framed issues in light of the pleading of the parties. The parties were directed to lead evidence pro and contra. At the conclusion of the proceedings, the learned Civil Judge Sehnsa, vide his judgment and decree dated - 29.11.2011 decreed the suit subject to payment of Rs,28,00,000/- alongwith the expenses of sale deed. It was further ordered that decretal amount along with the expenses of sale deed will be deposited within a period of one month, failing which, the suit would be deemed to have been dismissed. Gul Bahar Khan, Pre-emptor, feeling aggrieved from the said judgment filed an appeal before Additional District Judge Sehnsa on 26.12.2011. Along with appeal, an application for suspension of the impugned judgment was also made on the same date i,e, 26.12.2011. The learned 1st Appellate Court suspended the impugned judgment till next date of hearing and fixed the date as 06.01.2012. After hearing the learned Advocates for the parties, the learned Additional District Judge Sehnsa accepted the appeal vide its judgment and decree dated 05.05.2012 and remanded the case to the trial Court for fresh decision in accordance with the observations made in the judgment under challenge.
' Syed Tufail Hussain Bukhari, the learned Advocate appearing for the appellant, vehemently argued that the judgment passed by the learned Additional District Judge Sehnsa dated 05.05.2012 is capricious, erroneous and is a nullity in the eye of law because there was no valid appeal before him at the time of the decision of the case. The learned Advocate maintained that the appeal was filed before the Additional District Judge Sehnsa on 26.12.2011 and judgment and decree passed by the learned Civil Judge Sehnsa was suspended till 06.01.2012 and on the aforesaid date no application for extension in the order was filed till the final conclusion of the appeal. He submitted that as the suspension order was not holding the field from 06.01.2012, therefore, it was enjoined upon the respondents, herein, to deposit the decretal amount before the trial Court at least within one month or apply to the Court through a written application for extension of order dated 26.12.2011. The learned Advocate argued that decree passed by the learned Civil Judge was conditional subject to payment of decretal amount within one month, therefore, the appeal filed on behalf of Gul Bahar Khan, stood automatically dismissed for non-depositing of amount on 06.01.2012. He further argued that as the judgment and decree of trial Court dated 29.11.2011 was not existing, hence, the appeal before the Additional District Judge Sehnsa was not a valid appeal. The learned Advocate submitted that the case has been remanded by the learned Additional District Judge for determination of market value, which was amply proved by the vendee and remand was not at all desirable. He submitted that remand cannot be ordered in routine, rather should be ordered in extraordinary circumstances. He argued that a case cannot be remanded for filling the lacunas of a paty. According to the learned Advocate there is sufficient evidence on the file and the proper course for Additional District Judge was to decide the controversy itself instead of remanding the case to the trial Court. In this regard, the learned Advocate referred to and relied upon the following case law:
1. Qasim Hussain Shah v. Muhammad Gulzar Khan [PLD 1984 SC (AJK). 155];
2. Muhammad Siddique Khan v. Sardar Muhammad Akbar Khan and 5 others [2013 MLD 514];
3. Zia ul Hag v. Umar Hayyat and 3 others [2013 SCR 165];
4. Muhammad Zahid Naseem Adil v. Muhammad Shafi and others [2007 YLR 21901;
5. Mst. Isrhad Begum v. Mst. Gul Farosha and others [2003 YLR 724].
' The learned Advocate further argued that no benefit can be given to a party who is not vigilant while prosecuting his case and if negligence is committed by the Counsel that would be deemed negligence of the party. He submitted that due to lapse committed in civil cases accrued right of other side cannot be snatched specially in pre-emption cases because right of pre-emption is draw back on the freedom of contract and Court has strictly interpreted the provisions of Pre- emption Act. In this regard, the learned Advocate placed reliance on case titled "Zahid Ahmed v.
Deputy Director Adjudication and 2 others" reported as [PLD 2006 Karachi 252].
' In Qasim Hussain Shah case, referred to hereinabove it was observed as under:-- "It is to be remembered that the passing of a decree in a preemption suit on payment of amount is in fact a conditional decree and it does not become perfect until that condition has been fulfilled.
In case of non-fulfillment, the decree is really one of dismissal of the suit".
' In Muhammad Siddique Khan case, the same view has been reiterated by the apex Court. At page 138 of the report, it was observed as under:-- "A perusal of above reproduced rule reveals that while passing a pre-emption decree, the Court shall fix a date on or before which the purchase money is to be paid and the court shall direct the plaintiff to deposit in the court the purchase money together with the costs on or before the day referred to in clause (a) of subsection (1). If the decretal amount is not paid, the suit shall be dismissed with costs. Such decree is final one and the Court becomes functus officio. The court has no control over the matter after passing the decree. While passing the final decree, if the court orders that if a decree holder fails to deposit the decretal amount on or before a particular date the suit shall stand dismissed, in that case the order operates automatically but while passing the decree, if the Court orders that if the decree holder fails to deposit the decretal amount on or before a particular date, the suit will be dismissed, in that case a separate order in default is necessary for the dismissal of suit and tie. Courts always have control over the matter".
' In Zia ul Haqcase, in para 8 of the report, it was observed as under:-- "Now adverting to the next point raised by the learned counsel for the appellants that the decree was against the prevision of Order XX, Rule 14, C.P.C., it may be stated that there was clear direction of the Court that the decretal amount shall be deposited within a period of 45 days failing which the preemption suit shall be deemed to be dismissed. Admittedly the appellant failed to comply with the direction of the Court while not depositing the decretal amount within the stipulated period. This issue has been properly attended by the High Court as well as District Judge and after applying their judicial mind have given the well-reasoned concurrent finding. It is settled principle of law that this Court is always reluctant to interfere in the concurrent findings recorded by the subordinate courts and this practice has been consistently followed by this Court as laid down by a case titled Safdar Ali Khan v. Azad Govt. And 2 others 2010 MLD 1980".
' In Muhammad Zahid Naseem Adil case, it was observed that where an injective order was not extended by trial Court, result is automatic vacation of the order by operation of law.
' Conversely, Mr. Rafiullah Sultani, the learned Advocate appearing for the respondents contended that time for depositing decretal amount was not fixed in the present case by the appellate Court during the continuation of appeal nor order was extended by the Court, therefore, notwithstanding the fact that no fresh application for extension or request was made, appellant cannot be panelized for an act of the Court. In this regard, the learned Advocate placed reliance on case titled "Muhammad lqbal v. Anwaar Anwar and another" reported as [1997 MLD 631], wherein, at page 633 of the report, it was observed as under:-- "In case reported as Muhammad Arif Khan v. Jahanded Khan [1993 SCR 230], it has been held that if in a pre-emption case the Court does not record in the relevant order that in case of default in depositing the pre-emption amount, the suit shall stand dismissed then the court would still have seizing over the matter and can extend time under section 148, C.P.C.".
' The learned Advocate further argued that section 148 of C.P.C. Empowers the Court to extent the time originally fixed by him and this power can be exercised by the Court even without any application, suo mote or on an oral request of a party. The learned Advocate in this regard placed reliance on case titled "Ghulam Rabani v. Muhammad Fiaz and another" reported as 2015 SCR 317.
' I have heard the learned Advocates for the parties and have perused the record with my utmost care.
It is well settled principle of law that civil law is the law of omission and commission. If an act is not performed in due course of time or direction of the Court is not complied with then defaulter has to A suffer. It is also settled principle of law that right of Pre-emption is considered a draw back on the freedom of contract, therefore, the Courts have strictly interpreted the provision of Pre-emption Act. Keeping in view the aforesaid position and record of the case, it may be stated that the learned Civil Judge Sehnsa vide his judgment and decree dated 29.11.2011 directed the plaintiff to deposit the decretal amount along with the expenses of sale deed within a period of one month failing which it was ordered that suit would be deemed to have been dismissed. The order was challenged through an appeal before Additional District Judge Sehnsa on 26.12.2011. The judgment of the trial Court was suspended by the learned 1st Appellate Court on the same date till next date of hearing, i,e, 06.01.2012. On the aforesaid date, the Presiding Officer was performing as District Judge Kotli but no application for extension was made by the learned Advocate for the appellant.
The appellant remained negligent till final disposal of the appeal. In my estimation, non-extension of order dated 26.12.2011, would be resulted into dismissal of the suit and there was no valid appeal before the learned Additional District Judge on which the impugned decision has been taken. I have given thought to the contention of Mr. Rafiullah Sultani, Advocate that the time fixed in case can be extended without any application or even on oral request of the parties. I have no quarrel with the proposition. In this case had the matter brought into notice of the Court through a written application order might have been extended but no application was made by the appellant till disposal of appeal. As the appellant has not requested the Court, therefore, the suit of the plaintiff/ appellant would be deemed to have been dismissed. A perusal of record reveals that it was admitted by the learned Additional District Judge that suit has to be dismissed if the decretal amount was not deposited but the reasons listed by the learned Additional District Judge for remand are erroneous. The learned 1st appellate Court can fix time for depositing of the decretal amount while disposing of the main appeal, if the judgment of the District Court remains suspended. I am of the view that remand was not desirable in the case because parties have led the evidence and there was sufficient material for disposal of appeal even otherwise. It is well settled proposition of law that a case cannot be remanded for filling lacunas in the case of parties.
In view of above -the appeal is accepted and the judgment and decree passed by the Additional District Judge Sehnsa is hereby vacated. Resultantly, the suit filed by the plaintiff stands dismissed for noncompliance of the judgment of Civil Judge Selma dated 29.11.2011. No order as to costs.