' This revision petition is directed against the order of the learned Additional District Judge, Charsadda dated 24-5-1980 whereby the appeal against the order of the learned Civil Judge, Charsadda, dismissing the suit of the petitioner for non-deposit of the pre-emption amount in accordance with the decree of the Court within the time fixed, was dismissed.
2. Facts of the case relevant for the disposal of this revision petition are that Abdul Wakeel, the present petitioner, instituted a suit for possession by pre-emption of the land measuring 1 kanal 8 marlas as detailed in the plaint, against Mst. Amina defendant-vendee. After having completed the trial of the case, the learned Civil Judge by his judgment and decree dated 24-6-1978 decreed the suit on payment of Rs, 5,000, as the sale consideration. The defendant-vendee was also found entitled to costs of the stamps incurred by him.
3. An application moved by Mst. Amina, the judgment-debtor in the Court of the learned Civil, Judge gave rise to the present controversy. The judgment-debtor by this application asked the Court to order the dismissal of the suit as according to her, the decree-holder failed to deposit the entire amount on which the suit was decreed within the period fixed. In reply to the application, the decree-holder simply stated that he has deposited the entire amount as ordered by the Court and has fully complied with the terms of the decree passed in his favour.
4. After recording the evidence of the parties, the learned Civil Judge accepted the application and ordered the dismissal of the suit by his order dated 7-4-1979. An appeal filed by the decree-holder also met the same fate, hence this revision petition by Abdul Wakeel, the original decree-holder.
5. Mr. Abdus Samad Khan, Advocate, the learned counsel for the petitioner and Mr. Muhammad Shah Badshah, Advocate, the learned counsel appearing for the respondent present and heard.
6. The learned counsel for the respondent raised a preliminary objection to the maintainablity of this revision petition as according to him, the order of the learned Civil Judge dated 7-4-1979 was not appealable. He contends that the order of the learned Additional District Judge for that matter be treated as an order passed in the exercise of his revisional jurisdiction, as only a revision petition could have been filed against the said order. He further contends that in this view of the matter, this being a further revision is incompetent under section 115(3) of the Civil Procedure Code. Reliance was placed on Janga Singh v. Lachhmi Narain and others, wherein it has been held that "A decree in a pre-emption suit, embodying a condition that, unless the purchase-money is paid within the time fixed, therefore, the suit shall stand dismissed, is a decree complete in itself, and a subsequent order dismissing the suit cannot be treated as a decree against which an appeal can be preferred".
7. For the proper appreciation of the objection so raised, it will be of advantage to reproduce the order passed by the learned Civil Judge which reads as under:- ' As a result of my detailed (discussion) made above, plaintiff suit stands dismissed vide under section 23 Clause (4) of the N.-\V. F. P. Pre-emption Act, for want of not depositing the entire amount as directed."
' A formal decree was also drawn in the following words:- {{URDU TEXT}}
7. From the plain reading of the order and the decree reproduced above, it is abundantly clear that the order in question falls within the ambit of a decree as defined under section 2(2) of the Civil Procedure Code. This much argument of the learned counsel for the respondent is correct that in such like case, no order of dismissal nor a separate decree is required to be passed under Order XX, rule 14 of the Civil Procedure Code, but his contention that the order passed, as it is, is not a decree, is untenable. The order may be illegal and without jurisdiction but the same can by no means be held to be non-appealable on that score alone. The authority referred to above by the learned counsel is not applicable to the facts of the present case on two-fold grounds. Firstly, that there was a special provision i. Section 15 of the Oudh Laws Act (1876) which was relied upon by the learned Judge in that case and secondly, that the order passed in the case was in the following words:- "The plaintiffs having failed to deposit the purchase money within the fixed time the only alternative is to dismiss the suit. The plaintiffs' suit stands dismissed by virtue of the order in the case."
The next contention of the learned counsel that the order of the learned Additional District Judge be treated as having been passed in revisional jurisdiction, is also untenable. The matter was brought before the learned Additional District Judge as an appeal, it was entered, heard and disposed of as such, as is evident from the order of the learned Additional District Judge. Treating of an appeal as a revision and vice versa required a formal order based on conscious disposal of the question by judicious application of mind, which is lacking in this case.
9. In addition to what has been stated above, the order of the learned Civil Judge being illegal, as to be discussed later, this Court will have no C hesitation in exercising the revisional jurisdiction for the ends of justice.
10. In an unreported judgment of this Court titled Nazir Ahmad Khan v. Mian Khan (C. R. No, 33 of 1967), his Lordship Mr. Justice Muhammad Akram, J. In a similar case when an appeal against the order under section 23(1), the District Judge allowed the plaintiff to furnish security of a part of the amount ordered to be deposited. His Lordship held that the appeal was incompetent and that order was set aside, but upheld the order in spirit in the exercise of the revisional jurisdiction. It was held that 'In spite of the finding, I feel that at this stage no order should be made which is likely to prejudice the respondent. He had applied well in time firstly to the trial Court and then to the learned Additional District Judge, although erroneously, for the relief. The learned trial Court1 eventually on 31-1-1967, acting on the order passed by the learned District Judge in the meanwhile had extended the time for the deposit. Therefore, the plaintiff had in good faith relied on these various orders and eventually complied with them in the extended time allowed to him by the trial Court. He should not, therefore, in fairness, be penalised for this. In my opinion, the interest of justice would be fully served if the sum of Rs, 5,000, already deposited by the petitioner in Court and the additional security in the sum of Rs, 9,000, furnished by him, is accepted. This revision is disposed of with the above remarks. But under the circumstances of this case there shall be no order as to costs".
11. Now reverting to the merits of the case, I have to refer to the concluding part of the judgment of the learned trial Court in the suit which reads as under:- "As a net result of my findings on the issues discussed above, I, therefore, grant the plaintiff a decree of possession by pre-emption of the suit land on payment of Rs, 5,000, plus the sum of Rs, 190, incurred on the sale-deed against the defendant with costs. A sum of Rs, 1,000, has already been deposited and the plaintiff is directed to deposit the remaining amount to the tune of Rs, 4,000, within two months from today failing which his suit shall stand dismissed with costs."
9. From the perusal of this judgment, it is evident that the Court, while decreeing the suit, has directed the plaintiff to deposit the sum of Rs, 4,000, otherwise, the suit shall stand dismissed with costs. There is no mention of the costs in the defaulting clause of the order. Similarly, the decree sheet prepared under Order XX, rules, 6, 7 and 14 of the Civil Procedure Code reads as under:- {{URDU TEXT}} Even though the decree sheet is not in accordance with the judgment delivered by the Court, which ought to have been, there is no mention of the defaulting clause in the same, ordering the dismissal of the suit in the event of non-deposit of the amount within the time fixed by the Court in the judgment in question.
13. Now reverting to the other material aspect of the case, I have' noticed from the record of the trial Court that initially, in the typed judgment, the costs of the stamp paper has been entered as Rs, 95, but the same has been subsequently corrected as Rs, 190, by over-writing with a pen and similar cutting and over-writing appears in the decree sheet as well as in the order-sheet. It is further clarified by the report of the Moharrir in compliance with the order of the Court on the application of the respondent which reads as under:- {{URDU TEXT}} It appears that subsequent to the decree when it transpired that the costs of the stamp is Rs, 190, correction was made in the judgment and order-sheet by changing figure 95 to 190 in the manner referred to above. In spite of such glaring illegality appearing on the record, neither the trial Court nor the appellate Court applied their mind to the case nor proper assistance appears to have been given to them.
14. As a net result of the above discussion, I accept this revision petition with costs by holding that the decree-holder has complied with the order of the Court decreeing the suit for pre-emption in his favour by depositing the amount as ordered. The subsequent enhancement or correction, if it can be called so, of the costs of the stamp from Rs, 95 to Rs, 190, is illegal, without jurisdiction and not binding on the petitioner as the same has been made without notice to the decree-holder. AIR 1920 Oudh 25 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.