' The captioned appeals arise out of a common judgment and decree and raised common question of facts and law, hence, were heard together and are decided through this single judgment.
' Precise facts of the captioned appeals are that suit land comprising Khewat No, 26 Khata No, 192 khasra No, 857 measuring 4 kanal 6 marlas situated in village Bharand Tehsil Sehnsa was in the ownership and possession of Defendant No,
2. Out of the said land 3 kanal land was transferred to Defendant No, 1 by Defendant No, 2 vide sale deed dated 29.07.2010. Deewan Ali Khan, appellant in Appeal No, 104/2012 filed a suit for pre-emption against the defendants before Civil Judge Sehnsa on 13.11.2010. It was averred that the plaintiff is Shareek Khewat, Shareek Khata, hence, has preferential right to purchase the sold land vis a vis to Defendant No,
1. It was contended that the land was sold for Rs, 400000/- which is the market value of the land, however, in order to defeat the right of pre-emption of the plaintiff consideration amount has been entered as Rs, 10,00,000/- in the sale deed. The suit was contested by the defendants by filing written statement, it was claimed that plaintiff has no cause of action to file the suit. The other claim of the plaintiff was also denied.
The trial Court framed issues in light of the pleadings of the parties on 19.02.2011 and provided them an opportunity to lead evidence in support of their respective stand. The trial Court at the conclusion of the proceedings decreed the suit vide judgment and decree dated 30.12.2011 and directed the plaintiff to deposit consideration amount along with other expenses within a period of one month. It was further ordered that if the consideration amount is not deposited within the stipulated period the suit would be deemed to have been dismissed. Feeling dissatisfied from the judgment and decree Deewan Ali Khan, pre-emptor filed an appeal before Additional District Judge, Sehnsa on 06.02,2012. The learned 1st appellate Court after hearing the parties vide judgment and decree dated 22.05.2012 maintained the judgment of the trial Court and directed the pre-emptor to deposit the decretal amount as was calculated by the Court, till 29.05.2012, hence, the captioned appeals. Muhammad Yaseen and another have challenged the legality and correctness of the judgment dated 22.05.2012 whereas Deewan Ali pre-emptor has partly challenged the judgment to the extent of determination of the market value of the land, ' Syed Tufail Hussain Bukhari, the learned Advocate appearing for Muhammad Yaseen, vendee argued that pre-emptor has not deposited the amount as was directed vide judgment and decree dated 30.12.2011 within the stipulated period hence, the suit stood dismissed by operation of law on 30.01.2012 before filing of appeal on 06.02.2012. The learned Advocate further argued that after dismissal of the suit appeal before Additional District Judge, was not competent who erroneously entertained the same and suspended the judgment of the trial Court till next date of hearing. The learned Advocate contended that suspension order was not extended beyond 14.02.2012, hence the appeal had become infructuous at least from the aforesaid date. The learned Advocate further contended that some applications were filed for extension in the suspension order but no specific order has been passed by the 1st appellate Court on those applications. The learned Advocate submitted that pre-emptor filed application for copy of judgment on 31.01.2012 and the copies were issued on 03.02.2012 and appeal was filed on 06.02.2012. The learned Advocate submitted that as the appeal was not filed within the time stipulated in the decree of the trial Court therefore, the same was not entertainable. The learned Advocate further submitted that judgment passed by Additional District Judge, is a nullity in the eye of law who has not considered the case law referred to him. The learned Advocate argued that the learned Additional District Judge was not competent to suspend the judgment and decree of the trial Court on an infructuous appeal. The learned Advocate in support of his submissions placed reliance on following case law:-
1. Maqsood Ahmed and others vs. Member Board of Revenue Punjab, Lahore and others [2007 SCMR 399];
2. Qasim Hussain Shah vs. Muhammad Gulzar Khan [PLD 1984 SC (AJ&K) 150];
3. Muhammad Fazal vs. Muhammad Shamoon and another [1994 SCR 185];
4. Muhammad Amin vs. Muhammad Hameed and 2 others [2000 SCR 537];
5. Muhammad Yaqoob vs. Muhammad yousaf and 11 others [2013 SCR 12];
6. Zia-ul-Haq vs. Umer Hayat and 3 others 12013 SCR 165];
7. Muhammad Saddique Khan vs. Sardar Muhammad Kabir Khan and 5 others [PLJ 2013 SC (AJ&K)
134];
8. Mst. Ishrat Begum vs. Mst. Gul Farosha etc. [PLJ 2003 Peshawar 88];
9. Abid Hussain and others vs. Khadim Hussain and others [2005 YLR 520];
10. Mst. Irshad Begum vs. Mst. Gul Farasha and others [2003 YLR 724];
11. Sharimati Sundri Bai vs. Ghulam Hussain [PLJ] 1982 Karachi 222];
12. Ghulam Murtaza vs. Qalam Din and another [PLD 1987 AJ&K 166]; ' Conversely, Mr. Rafmllah Sultani, the learned Advocate appearing for the respondents-appellant argued that as the Presiding Officer of the trial Court was on leave therefore, decretal amount could not be deposited within the stipulated period, although the pre-emptor went to Reader of the Court who refused to accept the amount as well application. The learned Advocate argued that plaintiff has a statutory right to file appeal against the judgment and decree passed by Civil Judge, Sehnsa and on filing of appeal the judgment of the learned Civil Judge Sehnsa was suspended and remained as such till final disposal of the case. The learned Advocate contended that vendee and his advocate remained associated with the proceedings and submitted to the jurisdiction of the Court without raising any objection, therefore, now they are estopped by their conduct to raise such objection because the judgment of the 1st appellant Court has been complied with by depositing consideration amount within the period fixed by learned Additional District Judge. The learned Advocate further contended that law is well settled that a litigant cannot suffer for an act of the Court. The learned Advocate submitted that the appellant was entitled to the condonation of delay because at the relevant time Presiding Officer was on leave and the time consumed in obtaining copies of the judgment is liable to be excluded in view of Section 12 of Limitation Act. The learned Advocate submitted that it was categorically pleaded in the plaint and evidence was also led to the effect that consideration amount has arbitrarily been entered in the sale deed in order to defeat the right of pre-emption of the plaintiff but the evidence brought on record on behalf of pre-emptor has been ignored by the trial Court as well as 1st appellate Court. In support of his submissions the learned Advocate placed reliance on following case law:--
1. Muhammad Iqbal vs. Anwaar Anwar and another [PLJ 1997 SC (AJ&K) 1];
2. Ghulam Haider (deceased) by his L.Rs and others vs. Mst. Raj Bhari (deceased) by her L.Rs, and others [PLJ 1988 SC 47];
3. Nazir Ahmed and another vs. Abdullah [1999 SCMR 342];
4. Said Muhammad Khan vs. Muhammad Yousaf and 2 others [2007 SCR 235];
5. Ghulam Rabani vs. Muhammad Fiaz and another [2015 SCR 317];
6. Elahi Bakhsh and others vs. Ahmad Bakhsh and others [2012 MLD 1308];
7. Ghulam Rasool vs. Fazal Dad and another [1985 CLC 1129];
8. Zulfiqar and others vs. Gulzar and others [2006 MLD 1054]; ' I have heard the learned counsel for the parties and gone through the record of the case.
' It may be stated that argument of Mr. Rafiullah Sultani the learned Advocate for pre-emptor that the appellant is entitled to condonation of delay as appeal was entertained by the Additional District Judge and has been decided on merits, is devoid of any force. Order XX Rule 14 Code of Civil Procedure postulates the mode of dictating the judgment in pre-emption suit which is reproduced for ready reference as under:-- "14. Decree in pre-emption suit--(1) Where the Court decrees a claim to pre-emption in respect of particular sale of property and the purchase-money has not been paid into Court, the decree shall--
(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.
' The above reproduced provision of law reveals that in pre-emption suit the Court while issuing decree shall direct the pre-emptor to deposit the consideration amount with the costs if any 'on or before a day fixed under Rule 14 clause (a )of the said Order. It is also stated in clause (b) of the said Rule that Presiding Officer is bound to order that if the amount mentioned is not paid as per direction the suit would be deemed to have been dismissed. The material point in this case is as to whether the decree of the Civil Judge contained such like directions. A perusal of the decree reveals that the learned civil Judge directed the pre-emptor to deposit the consideration money along with the other expenses within one month. The time granted by the learned trial Court was expired on 30.01.2012. During this period the pre-emptor has not filed any appeal nor applied for suspension of the operation of the judgment of the trial Court. The pre-emptor applied for certified copies of the judgment and decree on the last date i,e, 30.01.2012. In my estimation, the pre-emptor was negligent in pursuing his case and has not complied with the judgment. As stated above, the last date for depositing of consideration amount was 30.01.2012 therefore, it was enjoined upon the pre-emptor to file appeal before this date.
' The contention of Mr. Rafiullah Sultani, the learned Advocate for the pre-emptor that no objection has been raised before the 1st appellate Court regarding competency of appeal hence the same cannot be raised in second appeal, is devoid of any force. The question of competency of appeal is legal point which can be raised and determined in second appeal under the provisions contained in Section 100 of Code of Civil Procedure. Law is well settled that no estoppel can be pleaded against the provisions of law. The contention of Mr. Rafiullah Sultani, the learned Advocate for the appellant that decretal amount could not be deposited because the Presiding Officer was on leave hence, the delay could have been condoned, is also devoid of any force because no proof has been appended with the appeal regarding leave of the Presiding Officer nor any application rejected by the Reader of the Court has been appended with the appeal. Even no application has been filed for condonation of delay. As stated above, the plaint stood dismissed on 30.01.2012 for not complying with the direction of the Court therefore, filing of appeal on 06.02.2012 is of no use and the suspension of the judgment at that time is also not helpful to the pre-emptor. The authorities referred to an relied upon by the learned Advocate for the pre-emptor/appellant are not attracted in the case in hand, hence, need not to be discussed.
' The upshot of the above discussion is that appeal filed by Muhammad Yaseen is accepted and the judgment and decree recorded by Additional District Judge, Sehnsa is hereby set aside. The counter appeal filed by pre-emptor Deewan Ali stands dismissed for having no substance in it. A copy of the order shall be appended with the connected appeal.