Ch. Muhammad Ibrahim Zia, C.J.- The captioned petition for leave to appeal arises out of the judgment of the High Court dated 29.10.2016, whereby the appeal filed by the petitioner, herein, has been dismissed.
2. The plaintiff-petitioner, herein, filed a suit for possession on the basis of right of prior purchase in the Court of Civil Judge, Dhirkot on 17.09.2008 in respect of the land comprising Khewat No.213 and 214 measuring 7 kanal 13 marla and 1 sarsai. The suit was dismissed by the trial Court vide judgment dated 29.06.2010 for want of cause of action. The petitioner filed an appeal before the Additional District Judge Dhirkot on 27.09.2010. The learned Additional District Judge, Dhirkot vide judgment and decree dated 10.03.2016 accepted the appeal in the terms that he shall pay an amount of Rs.6,00,000/- alongwith the other expenses within 15 days otherwise the appeal would be deemed to have been dismissed. Feeling dissatisfied, the petitioner filed an appeal before the High Court on 24.03.2011 while challenging the judgment of first appellate Court to the extent of consideration amount. The learned High Court through the impugned judgment dismissed the appeal, hence, this petition for leave to appeal.
3. Raja Muhammad Shafique Khan, Advocate, the learned counsel for the petitioner after narration of necessary facts submitted that the petitioner within the time prescribed by the first appellate Court for depositing the decretal amount, filed appeal before the High Court and also filed an application for suspension of the operation of impugned judgment and decree. The petitioner has not committed any fault rather it was on the part of the High Court that no order has been passed on the application. The petitioner cannot be penalized for an act of the Court. In this regard he referred to the case reported as Zulfiqar and others vs. Shahdat Khan [PLD 2007 SC 582]. He further submitted that according to the celebrated principle of law, the petitioner's suit cannot be dismissed, specially, in view of the principle of law laid down by this Court in the case reported as Sawar Khan and others vs. Noor Alam and another [1985 CLC SC (AJ&K) 1082]. The principle of law laid down in the referred judgment is fully applicable, thus, it is legal question of law justifying grant of leave.
4. Conversely, Raja Sajjad Ahmed Khan, Advocate, the learned counsel for the respondents submitted that according to the statutory provisions of law the decree in the pre-emption suit operates. It is clearly mentioned in the decree that the plaintiff-preemptor shall deposit decretal amount within 15 days and in case of failure to deposit the amount of decree the appeal would be deemed dismissed. Admittedly, the petitioner has failed to deposit the same, therefore, there is no illegality in the impugned judgment. He further submitted that on the identical proposition this Court has already laid down the principle of law in the case reported as Muhammad Amin Shah vs. Abdul Majeed and others [PLJ 2015 SC (AJ&K) 305]. No question of law is involved, hence, this petition is liable to be dismissed.
5. I have considered the arguments of learned counsel for the parties and examined the record made available.
According to the admitted facts the first appellate Court while accepting the appeal filed by the petitioner passed the pre-emption decree in his favour under the provisions of Order XX, Rule 14, CPC. It will be useful to reproduce here the decree which reads as follows:- {{URDU TEXT}} The decree was passed on 10.03.2011 and clearly contains that the plaintiff-petitioner is directed to deposit the decretal amount within 15 days. On depositing the decretal amount the decree will become final, otherwise, in case of failure the decree, suit and appeal shall be deemed dismissed. The petitioner presented an appeal before the High Court on 24.03.2011 alongwith an application for suspension of the operation of the impugned judgment and decree of first appellate Court. After report of the Reader the Deputy Registrar passed the order for placing the same before the Chief Justice on 30th March, 2011. Neither the petitioner or his counsel drew the attention of the Court for entertaining the application nor made any attempt to place the application before the Court within the time stipulated in the decree. Even, no attempt has been made thereafter. Although the application for interim relief is annexed with the appeal but neither it has been pressed nor the petitioner attempted for placing the same before the Court for hearing. As no interim injunction was obtained by the petitioner, thus, the decree remained operative. Consequently, due to default of the petitioner, decree-holder, the decree, suit and the appeal deemed dismissed. The impugned judgment of the High Court in the light of stated facts appears to be consistent with the statutory provisions as well as principle of law laid down in this context.
6. The learned counsel for the petitioner has relied upon the case reported as Sawar Khan and others vs. Noor Alam and another [1985 CLC SC (AJ&K) 1082]. The referred judgment according to the peculiar facts and circumstances has no nexus with the case in hand as in that case the certified copy of the judgment of trial Court was not annexed with the appeal and the appellate Court despite note of Reader opted for issuance of notices to the party. It was held that the requirement of furnishing the certified copy under Order XLI, Rule 1, CPC would be deemed condoned, whereas, no such proposition is involved in this case. The principle of law laid down in the referred judgment is consistent with the statutory provisions as under sub-rule (1) of Rule 1, Order XLI, CPC the Court is authorized to dispense with the requirement of furnishing the certified copy of the judgment. The other referred case is Zulfiqar and others vs. Shahdat Khan [PLD 2007 SC 582]. It has been held in the referred case that no one should be penalized for an act of the Court or public functionary but in this case there is no such act of public functionary rather it is the conduct of petitioner who has not attempted for obtaining the interim injunction for suspension of operation of the impugned decree.
7. According to the statutory provisions of Order XLI, Rule 5 of CPC mere filing of an appeal does not operate as interim injunction or suspension of the impugned judgment until the decree or order appealed is suspended by the appellate Court. The learned counsel for the respondents has rightly placed reliance on the case reported as Muhammad Amin Shah vs. Abdul Majeed and others [PLJ 2015 SC(AJ&K) 305], wherein, while attending the identical proposition it has been held that: "We conclude the controversy by holding that once a decree with a condition has been passed, it is not within the competence of the Court to extend the time specified in the decree for payment of the amount and that the decree has to be executed as it is and failure on the part of a party to comply with the order renders the decree as inoperative. We may also rush here to observe that we do not entertain any cavil with the powers of the appellate Court to extend the time specified in the decree and in that case the decree can be executed within the period specified by the appellate Court. In the present case the appellate Court, as has been contended, extended the time of two months, which obviously means that the needful had to be done by the appellant within that specified period, which admittedly has not been done in the present case. Even if we accept the version of the appellant that the period specified by the trial Court has to be computed from the date of the judgment of the Supreme Court, we still find no force in the arguments of learned counsel for the appellant as the appellant didn't deposit the amount as directed by the trial Court within 30 days from the date of passing of the final order by the Supreme Court. This argument of the learned counsel along with his version taken in the memorandum of appeal that filing of appeal is sufficient to allow an extended period for the appellant to deposit the decretal amount, is also devoid of any legal force as in presence of a specific provision to the contrary the version so advanced cannot be accepted. We may beneficially refer to Order XLI Rule 5 of Civil Procedure Code, which postulates as under:- 'An appeal shall not operate as stay or proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree by stayed by reason only of an Appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay or execution of such decree."
The above order clearly provides that an appeal itself cannot operate as stay of proceedings in a decree, or order appealed from. It is only possible when specific order has been issued by the Court itself."
The enunciated principle of law is fully applicable to be case in hand. Thus, finding no force this petition for leave to appeal stands dismissed. No order as to costs.