MUHAMMAD AMEER BHATTI, J. The petitioners have called-in-question the judgment dated 10.03.2011 passed by the learned Addl. District Judge whereby revision petition filed by the respondents was accepted and time of 30-days for deposit of the decretal amount was granted.
2. The relevant facts, which form the background, are that the pre-emption suit filed by the respondents regarding land measuring 13-Kanals, 2-Marlas situated in Chak No.11 Village Sahjowal was decreed on the basis of compromise arrived at between the parties to the extent of half of the land. However, the learned trial Court while passing the decree on 17.01.2006 recorded the order in the following terms:- "Both the parties have entered into a compromise and have given statements. The respective statements have been recorded. Both the parties have agreed that the instant suit be decreed to the extent of 6-Kanal 13-Marlas from the suit property. The plaintiff has withdrawn his claim regarding the remaining suit property. In light of the statement of the parties the instant suit is hereby decreed in favour of the plaintiff to the extent of six kanal 13-marlas out of the suit property.
The suit to the extent of remaining suit property stands dismissed as withdrawn. The plaintiff is entitled to recover Zar-e-Soim deposited by him in the instant suit titled Nazar Hussain Vs. Ijaz Hussain etc. Parties bear their own cost. File be consigned to the record room after its due completion."
The plaintiff filed an application for review of the order dated 17.01.2006 for correction and incorporation of direction therein to deposit the price of decreed land less the amount of zar-e- soam stipulating the time. Since the obscure order dated 17.01.2006 did not contain all embracing pre-requisites needful for the purpose; the learned trial Court rectified its omissions essential for a valid decree; and reviewed the said order to the following effect:- "Present: The review application has been accepted and the decree is hereby modified to the effect that the price of suit property of 13 kanal was alleged in the suit to be 90000/- rupees. In light of which the value of the property decreed being 6 kanals 13 marlas is approximately 66807/- rupees. Plaintiff is directed to deposit the said amount within 30 days from 25.09.2006 in case of default the suit will stand dismissed".
Accordingly the decree was also prepared in the following manner:- "ORDER: The review application has been accepted and the decree is hereby modified to the effect that the price of suit property of 13 kanal was alleged in the suit to be 90000/- rupees. In light of which the value of the property decreed being 6 kanals 13 marlas is approximately 66807/- rupees.
Plaintiff is directed to deposit the said amount within 30 days from 25.09.2006 in case of default the suit will stand dismissed.
Second application to correct the decretal amount as Rs.66807/- instead of Rs.45687.023 less the zar-e-soam was although allowed yet it did not find mention concerning deduction of zar-e-soam and accordingly on the same decree sheet following words were added:- "Value of 6-K-13M corrected to be Rs.45687.023 as per order of review application dated 10.02.2007".
3. It is added that extension of time to deposit the corrected amount was refused merely on account of the non-availability of written request. Thereafter plaintiffs/respondents' filed another application seeking extension of time to deposit the amount so ascertained; which was also rejected. The plaintiffs/respondents, feeling aggrieved, preferred a revision petition which was allowed and the respondents/plaintiffs were permitted to deposit the pre-emption amount of Rs.45687.023/- less already deposited zare-e-soam; hence this revision petition.
4. The learned counsel for the petitioners comes out with contention that learned Revisional Court erred in law while granting time to deposit the decretal amount after lapse of the stipulated time.
Further maintained that the respondents had the knowledge of amount decreed by the learned trial court although it was excessive and erroneously calculated but plaintiffs/respondents were obliged to deposit that amount in the first instance and thereafter entitled to file the application for its correction with a view to return of the excess amount; hence non compliance of order within stipulated time constitutes punitive action to divest them of any relief. Since the prime obligation of deposit of decretal amount had not been fulfilled within the stipulated time, therefore, an application for extension of time should have been filed at the relevant time, together with the application for correction of order/decree; and that application on account of non-availability of their request for extension of time was rightly turned down. He emphatically added that subsequent application for extension of time was also rightly rejected by the learned trial Court but the same was allowed by the learned Revisional Court in contravention with the principles laid down in Muhammad Shabbir and others vs, Bashir Ahmad (1974 SCMR 24), Bhai Khan vs, Allah Bakhsh and another (1986 SCMR 849), Mst, Sahib Khatoon vs, Allah Ditta and 10 others (1994 SCMR 2002) and Assar Ali Shah through L.Rs, and 4 others vs, Syed Muzaffar Din Shah and 4 others (2007 SCMR 724).
5. On the other hand, learned counsel for the respondents resisted the such contentions on the premise that the application for correction of decretal amount would serve the purpose as it necessitated extension of time even without written prayer of the petitioners; hence it was incumbent upon the Court while correcting amount of decree to grant another opportunity for its deposit by allowing reasonable time; which was overlooked to constrain them to file another application for grant of time which was paradoxically refused by the learned trial court; thus, learned Revisional Court justifiably granted the permission while rectifying the error perpetuated by the trial Court to deposit of decretal amount.
6. I have heard learned counsel for the parties and gone through record of the case with their able assistance.
7. It is not denied by the learned counsel for the petitioners that the earlier order was erroneous in nature as neither the amount was mentioned therein nor the time was fixed for deposit of the purchase amount. However, this order was corrected by the learned trial Court on plaintiffs application but this time error in calculating the price of the land was committed followed by another application moved within time already stipulated and price of the land was corrected. This time another mistake surfaced when the trial Court lost sight of the fate of zar e-soam and in such an eventuality refusal to extend time was neither legally justified nor sustainable in the eye of law.
Learned trial court, in essence, had committed default to calculate the decretal amount and in such eventuality it was obligation of the learned trial Court to extend time under the principle "act of Court prejudice none". Learned trial Court failed to fulfill its obligation by not granting time when it made correction in the price of land. It is noticed that error in calculating the amount was floating on the surface of the order, which entailed the consequence that this error which was liable to be corrected by the learned trial Court, nonetheless a demand to deposit the amount within the time already stipulated and elapsed before making such correction cannot make sense nor will serve the ends of substantial justice.
8. Despite the fact that application for its correction moved by the respondents was allowed and it was a just and equitable ground for extension of time to deposit the amount to be fixed by the learned trial Court, by not exercising this power, had committed material illegality and irregularity, providing justification to the learned Revisional Court to exercise its jurisdiction provided under the law for granting the time to deposit the amount of Rs.45,687.023 less already deposited amount of zar-e-soam. In such eventuality, the learned Revisional Court has not committed any illegality or irregularity. The order of the learned Revisional Court is in consonance with the law and I am fortified in this regard by the dicta laid down by Hon'ble Supreme Court in a case reported as Nazir Ahmad and another vs. Abdullah 1999 SCMR 342 wherein it was held as under:- "The crucial point in the case is; as to whether, the plaintiff/appellant intentionally failed to comply with the deposit order or whether there was some plausible and valid reason which resulted in his failure to deposit Rs.40 less than that he was required to do so. It is borne out from the above narration of facts that at the first instance he deposited Rs.2,000 and then Rs.12,200 according to direction of the Court well within time. Similarly, in obedience to the final order the plaintiff deposited Rs.56,960 much before the fixed date. The mistake occurred when the case was sent from Multan to Shuja Abad where the learned Judge noticed that 1/5th amount of the sale price mentioned in Mutation No.95 has not been deposited; so by order, dated 30.07.1974 he directed the plaintiff to deposit 1/5th of the sale price amounting to Rs.12,200/- before 2.10.1974. The learned Judge mistook the sale price mentioned in the said mutation as Rs.61,000/- instead of Rs.61,200/- and by this inadvertent mistake calculated 1/5th as Rs.12,200/-instead of Rs.12,240. This short fall of Rs.40, thus, resulted because the learned Judge miscalculated Zar-e-Panjum and for that reason wrote Rs.12,200 in the order-sheet to be deposited before the given date. So, it is to be seen as to whether it is inflexible rule of universal application that the deficiency in deposit of pre-emption money which occurred because of miscalculation or through other error made by the Court is not excusable at all or it can be condoned on the principle that no one should suffer because of any error of the Court or because neither the mistake was willful nor it was on account of any fault of the person concerned. It was ruled in Bhai Khan v. Allah Bakhsh and another (1986 SMCR 849); "
Order XX, Rule 14 --pre-emption suit-- Extension of time for deposit of pre-emption amount- - Appellate Court, held, could extend time for deposit of pre-emption amount both during pendency of appeal before it as well as when it dismisses appeal Appellate Court however, will exercise such power in fit and suitable cases and could also refuse to exercise discretion in exceptional cases.
It was further articulated: We are, therefore, of the view that the failure of the plaintiff/appellant in deposit of pre-emption money was not intentional and it happened because of the error of the learned trial Judge in calculating the amount as explained above. In the circumstances of this case the plaintiff is entitled to the extension of time under sections 148, 151 and Order XLI, rule 33 of the Civil Procedure Code".
In the judgment relied upon by the learned counsel for the petitioners i.e. Bhai Khan vs, Allah Bakhsh and another (1986 SCMR 849) it was held as under:- "The rule deducible from the decisions of this Court appears to be that an appellate Court can extend the time for deposit of the pre-emption amount both during the pendency of the appeal before it as well as when it dismisses the appeal. Thus, the view of the learned District Judge that he had no power to extend the time for deposit of the pre-emption amount as the time given by the trial court in its decree had expired, was erroneous".
Same view was taken by Hon'ble Supreme court in Muhammad Shabbir and others vs, Bashir Ahmad (1974 SCMR 24), the relevant extract is as under:- "The appeal before the District Judge was of right. As the appeal was a continuation of the suit, the learned District Judge was fully competent under section 151 of the Code of Civil Procedure to pass the interim order in question. The appeal having been filed on the very date the time fixed by the trial Court for the payment of the pre-emption money was due to expire, a refusal to exercise such power would not only have been improper but would have had the effect of making the appeal itself infructuous, and depriving the respondent of his statutory right of appeal"
9. From the case law discussed supra, it has been consistently held by Hon'ble Supreme Court that the Court (including Appellate Court) has the power to grant extension of time provided circumstances explained in the application are so convincing and tangible as to satisfy the conscious of Court and would not operate as a bar for extension of time once good cause stood established from the record.
10. Suffice it to hold that the circumstances explained in the preceding paras of this judgment sufficiently establish that the Court's decree was not properly prepared which was subsequently corrected and amended by the Court when the applicants/respondents/plaintiffs approached the Court for the said purpose and significant time stipulated by the Court was elapsed during the pendency of application. These above-mentioned judgments vindicate the case of respondents/plaintiffs who were granted permission by the Revisional Court. In such circumstances, a demand of written request for extension of time was neither conscionable justified nor in accordance with law. It was the solemn duty of the learned trial Court, while making correction in the order and decree to extend the time itself already consumed for deposit of the corrected amount/price of the decreed land.
11. For what has been discussed above, I find no rationale to interfere in the well-reasoned order of the learned Revisional Court, therefore, this petition having no force is hereby dismissed. No order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.