' RAJA MUHAMMAD KHURSHID KHAN, C. J.-Through this appeal, by leave, the appellant seeks to assail the judgment passed by a learned Single Judge of the High Court on 31-5-1979. By this order while disposing of the revision petition moved by the appellant, the learned Judge, for the failure on the part of the appellant to deposit the decretal amount within time as stipulated under the decree, declined to interfere with the order passed by the learned District Judge, Mirpur, on the 30th of July, 1978, whereby he refused to give finality to the preemption decree recorded in favour of the appellant and held that the failure of the appellant deposit the decretal amount in time, takes all legal strength out of the decree resulting the dismissal of the suit.
2. To have a correct view of the matter in issue, complete hold of the facts seems to be necessary.
A pre-emption decree of the suit land on payment of Rs. 34 000 was passed in favour of the appellant (plaintiff) by the Additional Sub-Judge, Mirpur, on 7-6.1976. Respondent, Muhammad Gulzar Khan (vendee) aggrieved by the order, went up in first appeal before the learned District Judge, Mirpur. The appeal was meant for enhancement of the decretal amount. The learned.
District Judge, vide his judgment and decree, passed on 2-7-1979, accepted the appeal and enhanced the decretal amount from Rs. 34,000 to Rs. 50,000 which (as per judgment) was ordered to be given to the vendee (respondent) on or before 31-8.1977.
3. On 30-8-1977 (within the time allowed), the appellant submitted an. Application before the learned District Judge, Mirpur, with the prayer-
(i) that he may, under the decree of the learned District Judge, be allowed to. Deposit the additional amount of Rs. 15/16,000 ; and (1) that the actual amount to be deposited may also be made known to him.
4. The orders passed on this application by the District Judge do not provide a happy reading. It appears that in the first instance, the learned District Judge made an order that the decretal amount may be deposited under rules. Then the learned Judge cancelled this order and called for the report about the exact amount to be deposited under the decree. The office repo. Ted that the decree was passed on payment of Rs. 50,000 plus the expenditure incurred on the execution of the sale-deed and the decretal amount was required to be deposited on or before 31-8-1971. The report also enters that the original file has been sent to tile subordinate Court. The learned District Judge then forwarded this application to Sub-Judge, Mirpur, with the direction that after ascertaining from the office the exact amount to be deposited, the Sub-Judge should get die amount deposited.
5. The case of the appellant is that after the order made by the District Judge on 30-8-1977 he went to the Court of Sub-Judge Mirpur, but the ' learned Judge was not present in the Court and a clerk of the Court instructed the appellant that ne should go to the Court of Sub-Judge, Dadyal, to deposit the decretal amount because the subject-matter of the suit was within the territorial jurisdiction of the Court. It was further asserted by the appellant that he went to the Court of Sub- Judge, Dadyal but he could not make the deposit as the file by that time had not been received by the Sub-Judge, and so the tender by the money was refused.
6. 1st and 2nd September, 1977, according to the appellant, were closed holidays. So he again moved an application to the District Judge, Mirpur, on 3-8-1977, for making the deposit of the decretal amount. This application was accepted subject to the obections by the other party and the amount was deposited on 5-9-1977. Then another application was moved by the appellant before the District Judge on 4-4-1978 for passing a final decree which was dismissed on 30-8-1978, inter alia, on the ground that the deposit of the decretal amount had not been made within time fixed by the Court.
7. The learned District Judge also, for having no control over case, expressed his inability to, extend the time for making the deposit. Thereafter an application, as said earlier, was moved by the appellant on 4-4-1978 that the decree may be made final as the decretal amount, in full, has been paid. The learned District Judge disallowed the application on the ground that the appellant failed to deposit the amount by 31-8-1977, the tine allowed to him, and this lapse on the part of the appellant had occasioned automatic dismissal of the suit.
8. This order of the learned District Judge was made subject of a revision petition before a learned Single Judge of the High Court which, as stated earlier, was disallowed vide order dated 31-5-1979.
Hence this appeal to assail the said judgment of High Court.
8. Raja Muhammad Siddique, the learned counsel for the appellant, maintained.
(i) that the judgment of the learned district Judge is violative of the mandatory provisions of Order XX, rule 14, Code of Civil Procedure, inasmuch as this provision contemplates only the deposit of the decretal amount in the Court. The order of making payment to the vendee thus being illegal, even- if it is violated, it would not adversely affect the appellant's case for his failure to make the deposit of the decretal amount in the Court. On this plank, it is contended that the judgment of the learned District Judge which provides for payment of the decretal amount to the vendee, being an illegal pronouncement, has no legal value ;
(ii) that the preparation of the decree which enters that the amount is to be deposited in the lower Court, being violative of Order XX, rule 6, Code of Civil Procedure, which only provides that the decree shall follow the judgment, is a nullity in the eye of law and thus the appellant cannot be penalised for not obeying the illegal decree ;
(iii) that the appellant, on 30-8-1977, bad tendered the decretal amount for deposit in the Court of learned District Judge ; and this act of the appellant is sufficient compliance of the-judgment and decree ;
(iv) That the legal order of making the 'deposit of the decretal amount, known under the Code of Civil Procedure was passed only by the District Judge on 4-9-1977, when the appellant was ordered to make a deposit in the Court and the order was promptly complied with by the appellant on 5-9- 1977 ; and
(v) that in the peculiar circumstances of the case the High Court erred in not exercising the discretion in favour of the appellant to extend the time for depositing the amount. The deposit made on 5-9-1977, according to the learned counsel, ought to have been considered as sufficient compliance of decree.
9. Agha Ashiq Hussain, the learned counsel for the respondent, while opposing the grounds of objection, listed above, maintained-
(I) that the failure of the appellant to deposit the amount in the Court in time, before 31-8-1977, in accordance with the decree, has taken all legal strength out of the decree passed by the learned District Judge ;
(ii) that after passing the judgment the learned District Judge had no control over the case and, therefore, the learned District Judge had no power to enlarge the period to deposit the decretal amount as was rightly pointed out by him vide order made on 4-9-1977 referred to above by virtue of which the decretal amount was deposited in his Court ;
(iii) that no provision in the High Court against the order dated 30-7-1977 was competent ; and
(iv) that the High Court his very rightly refused to _extend the time and consider the deposit made on 544977 as sufficient copmpliance of the decree.
10. The first question which we propose to take up is as to exist grounds to condone the delay in making the deposit."' In other words it is to be seen as to whether the deposit made on 5-9-1977 can be considered to be a valid deposit.
11. It is to be remembered that the passing of a decree in a preemptio suit on payment of amount is in fact a conditional decree and it does no 4 become perfect until that condition has been fulfilled.
In case of non-fulfill went, the decree is really one of dismissal of the suit.
12. In order to appreciate the issue it would be necessary to know the true import of the first application made by the appellant on 30-84977. It reads :- {{URDU TEXT}} 13.Let us now determine the issue while taking into consideration the contents of the application.
The appellant alleges that be had actually tendered the. Amount of the preemption money to the District Judge, and, therefore, it cannot be said that he had not paid the amount as stipulated under the decree. In support of his submission, he has referred us to the application, referred to above, made one day earlier to the last day, meant for the deposit of the decretal amount Whether the appellant had tendered the amount is a different thing but this application, at least, shows that the appellant wanted and, in fact, was very keen to make the deposit. The application contains prayer that the appellant would like to make the deposit of the amount to make the decree executable. It is submitted that viewing the issue from the angle that the appellant had made all efforts to deposit the amount, it is a case in which on 'equitable and legal gorunds extension of the time should have been and is to be allowed and the deposit made on 5-9-1977 may be considered as sufficient compliance of the decree.
14.In this case, as stated earlier, the application for payment of preemption money was made one day earlier to the last day meant' for the purpose. The appellant, when he made a request to make the deposit, therefore, would be at least considered to have taken positive step to fulfil the terms of the judgment and decree.
15.The next question posed is as to why did the appellant approach the District Judge for making the deposit which was to be made before the subordinate Court? As the order of enhancement of the amount was passed by the District Judge, the appellant in all probability entertained the belief that deposit of the additional amount was to be made in the District Court and that is why the appellant moved the application before the District Judge for the purpose. This all is in accordance with the common day experience of all of us.
16. In such a situation what the. District Judge ought to have done? The proper course for the District Judge was to accept the money provisionally and issue notice to the other party to raise objections if any. It was, therefore, the laxity of the District Judge that the money was not received and the appellant was not, in the circumstances of the case, well-advised to approach the Court of Sub-Judge, Mirpur, to make the deposit though, as stated earlier, the file was with the Sub-Judge, Dadyal, where the deposit, if at all, may have been ordered It is significant that the judgment explicitly says that the amount is to be given to the vendee while the decree enters that the amount is to be deposited in the Court.
17. The decree as prepared, it is thus manifest, is in departure of the judgment. What is its effect is a very important question but as the appeal succeeds on another ground we leave it to be decided in some other case. But we cannot ignore the fact that this is an error on the part of the ministerial staff of the Court and the possibility cannot be excluded that this fact may have put the appellant on the wrong track and that is why he had to file the application to seek permission of the District Judge to make deposit in the Court.
18. We are thus of the considered view that in the present case the appellant has been mislead by the unhappy conduct of the District Judge. In the first instance the District Judge ordered that - the amount may be deposited. Then he cancelled his order without assigning any reason and called for the report of the office and then after getting the report he had sent the application to Sub- Judge, Mirpur, while the deposit was to be made in the Court of Sub-Judge, Dadyal. There is an affidavit of the appellant, dated 3rd of September, 1977, which enters all incidents of the matter. It B would thus appear that all efforts, which possibly could have been made, were made by the appellant in time to deposit the amount. The efforts however, failed due to the circumstances brought out of the conscious or unconscious conduct of the. District Judge and other officials of the learned Sub-Judge, Mirpur, and Sub-Judge, Dadyal. The appellant, one day earlier to the period, tendered the decretal money which was not accepted by the District Judge.
19 Does all this constitute sufficient cause for extension of time l Sufficient cause means something beyond the control of the party. Whil determining the sufficient cause the Court should be lenient and should overlook some negligence, I e., an ordinary incident or a human affair but gross negligence cannot be condoned. Therefore fibered the lapse in no depositing the decretal amount within time is not due to any default or go neglect on the part of a person, as the case is, before us, but is due to the Court's neglect to do its duty, this would constitute a sufficient cause for enlargement of 'the time which this-Court is competent to do and the delay is to be excused. In this case we are of the view that the appellant has not been guilty of any negligence but on account of the act of the District Judge his office or Additional Sub-Judge, Mirpur, or his office or Sub-Judge, Dadyai, or his office, the appellant was prevented and failed, for no gross negligence on his part. To deposit the amount within time This obviously is a good ground' for extension of time. The principle actus curiae nernine gravabit (nobody should be prejudiced by an act of the Court or its Officer) is one of universal application and does not recognize any provision of the Limitation Act. Delay may be excused when the appellant is mislead and if it is not done it may perpetuate injustice which should always be avoided under law. The High Court, no doubt, was entitled in its discretion to extend time for making the deposit of the decretal amount in bolding that the amount already deposited would be considered as to have been deposited by virtue of the decree, but the High Court erred in not exercising the discretion in favour of the appellant.
20. By virtue of section 42-A of the Azad Jammu and Kashmir Interim' Constitution Act, 1974, this Court has the powers to issue such orders as may be necessary for doing complete justice in any case or matter pending before it. Similarly, Order XL111, rule 5 of the Azad Jammu and Kashmir Supreme Court Rules, 1978, which reads:- "Nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court." enables the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. So, was held in Muhammad Farash Khan v. Mst. Nashadar Jan (1). It was held in that case:- "Before we part with the case, we may state that the Supreme Court even otherwise is also competent to pass any order to secure the ends of justice under Order XLIII, rules 4 and 5 of the Azad Jammu and Kashmir Supreme Court Rules, 1978, Reid with section 41-A(1) of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
The reading of the provisions of the. Supreme Court Rules and Constitution makes us to believe that- in a fit case, like the present one, the F Supreme Court is competent to pass any order to meet the ends o justice. We are seized with the matter and the evidence of both the parties is on the record, whose scrutiny and appreciation convince us that the appellant deserted the respondent when she was at the prime of her youth and took the second .Wife and deprived her of all the mental happiness and if there is any case of cruelty and maltreatment, to us, this ease is one of them and even if the District Judge had no competency to transfer the case and if the learned Sub-Judge, Rawalakot, lacked the jurisdiction to hear the case, as the evidence of both the parties had come on the record, this Court, we hold, is competent to pass any order to undo the abuse of the process of the Court in the interest of justice."
21.It is also doubtful as to whether the learned District Judge had no control over the case, as held by the High Court, in view of the fact that efforts were made to tender the amount within time.
Whether in these circumstances it can be said that the appellant had not complied with the conditions attached to the decree and the decree would auto''apically fade and the Court would become functus' officio -not to extend the time, are all important points to be looked into but as we have decided to give extension of time to make the deposit we leave these points undecided to be resolved in some other case. The learned Judge of the High Court has also recorded a finding against the appellant influenced by the fact that the two affidavits filed by the appellant on 3-9- 1977 are mutually destructive in so far as one affidavit enters that the appellant came to know that 31st August, 1977, was a {{FOOT NOTE}}
(1) PLD 1983 SC (A J & K) 43 {{FOOT NOTE}} holiday while the other affidavit of the same date enters that the appellant went to the Court of Sub-Judge, Dadyal, on 31-8-1977. The close examination of these two affidavits shows that 31-8- 1977 was a local holiday at Mirpur add that is why there appears to be disparity between two affidavits which would not affect the merits of the case which stand otherwise proved.
22. The appellant, we are convinced, was made a rolling stone by the District Judge and he had to make fruitless efforts towards depositing the amount. When the appellant approached the District Judge the District Judge could very well order the deposit of the decretal amount as was done by the District Judge later on, on 4-9-1977. As stated elsewhere, it appears that due to the fact that decretal amount was enhanced by the District Judge, the appellant believing that he had to make the deposit in the Court of District Judge, approached the same wherefrom his misfortune started and he was not well-advised regarding the place where he could make the deposit.
23. In a nutshell the acts of the District Judge, efforts made by the appellant to make the deposit, the judgment being contrary to Order XX, rule 15, Code of Civil Procedure, and the decree being in conflict with the judgment, all these factors make us to believe that if there is any case fit .Enough calling for extension of time this is one at them.
' For the above-stated reasons while accepting the appeal and quashing the judgment of the High Court and that of the District Judge we extend the period for making the deposit of the decretal amount from 31-8.1977 to 6-9-1977. The deposit, therefore, made by the appellant on 5.9-1977, would be construed to be a walled deposit in accordance with the decree prepared by the District Judge. This conclusion would render the order passed by the District Judge as well as the learned High Court as non-existent and all these orders are hereby quashed. The decree in favour of the appellant becomes operative and executable. The appeal, therefore, stands disposed of in the manner indicated above. The question as to whether the revisionism petition before the High Court is competent need not be decided as in view of the decision it loses all importance in this case.