' In this civil revision petition under section 115, C. P. C. Noor Muhammad plaintiff-petitioner has challenged the judgment and decree dated 6-10-1983 of Malik Muhammad Parvez Khan, District Judge, D. I Khan whereby he accepted the appeal Of vendee-defendant and rejected the plaint of the plaintiff in view of subsection (4) of section 23 of the N.-W. F, P. Pre-emption Act, 1950. The suit of the plaintiff-petitioner had earlier been decreed by the judgment and decree, dated 16-4-1983 of Mr. Qalandar Ali Khan, Civil Judge, D. I. Khan.
2. Facts of the case are that Noor Muhammad plaintiff-petitioner brought a suit for possession through pre-emption of 100 Kanals of land out of the suit land against the vendee-defendant on the grounds that he had superior right of pre-emption. The suit was hotly contested by the vendee-defendant and the pleadings of the parties resulted in the framing of the following issues :-
(1) Whether the plaintiff has got any cause of action?
(2) Whether the plaintiff has got superior right of pre-emption?
(3) Whether the sum of Rs, 4,000 was fixed in good faith or actually paid as sale consideration?
(4) What is the market value of the suit land?
(5) Whether the suit is within time?
(6) Whether the plaintiff is estopped to bring this suit?
(7) Whether the suit is properly valued for the purpose of court-fee and jurisdiction?
(8) Whether the defendant has incurred expenditure worth Rs, 2,000 for the improvement of suit land, if so whether he is entitled to receive the same in case of decree?
(9) Whether the sum of Rs, 300 was paid for the registration of deed, if so to what effect?
(10) What is the effect of the plaintiff, failing to deposit the preemption money within the prescribed time?
(11) Relief.
' After recording the evidence of the parties the learned trial Judge decreed the suit of the plaintiff with the exception of Khasra Nos. 122, 116 and 186 on payment of Rs, 3,884. The vendee-defendant feeling dissatisfied with the said conclusion of the trial Judge on issue No, 10 went in appeal before the learned District Judge who accepted the appeal and rejected the plaint of the plaintiff- petitioner as aforesaid hence the instant civil revision petition.
2. I have heard the learned counsel for the parties and have gone through the record of the case.
3. On the very date when the suit was instituted i,e, 9-12-1975 the learned trial Judge had directed the plaintiff to deposit Rs, 2,000 as preemption money in the Court before 6-1-1976. On 6-1-1976 however the plaintiff-petitioner instead of having deposited the pre-emption amount as directed earlier, submitted an application in the said Court for extension of time for the deposit of the said amount. The order, dated 6-1.1976 of the learned trial Judge reads as follows :- {{URDU TEXT}} ' Earlier the order, dated 9-12-1975 was passed by the learned trial Judge in the following words :- {{URDU TEXT}} ' Section 23 of the N.-W. F. P. Pre-emption Act, 1950, reads as under :- "Deposit of pre-emption money. -(1) In every suit for pre-emption the Court shall at any time before the settlement of issue require the plaintiff to deposit in Court such sum that does not, in the opinion of the Court, exceed the probable value of the land or property or require the plaintiff to give security to the satisfaction of the Court for the payment, if required, of a sum not exceeding such probable value within such time as the Court may fix in such order.
(4) If the plaintiff fails within the time fixed by the Court or within such further time as the Court may allow to make the deposit or furnish the security mentioned in subsection (1) or (2), his plaint shall be rejected or his appeal dismissed, as the case may be."
' In the instant case the order, dated 9-12-1975 as reproduced above is clear on the point that the plaintiff was required to deposit the pre-emption amount as directed by the Court before 6-1-1976.
Thus, on the date fixed the plaintiff had failed to comply with the Court order and in view of the requirement of law as envisaged by subsection (4) of section 23 of the Act (ibid) his plaint should have been rejected. Curiously enough, however, instead of rejecting the plaint the trial Judge admitted the application of Noor Muhammad plaintiff on 6-1 1976 wherein he alleged that due to illness and theft he could not deposit the pre-emption money and therefore, the period fixed for the said deposit be extended, the learned trial Judge without giving any opportunity to the other side granted the application and extended the time for the deposit of the pre-emption amount as per his order, dated 6-1-1976 reproduced above. It is needless to point out that on 4-2-1976 Ghulam Siddique vendee-defendant applied to the trial Court that since the plaintiff-petitioner had failed to deposit the preemption money within the specified period his suit was liable to be rejected. On this application however the learned trial Judge passed no order and vide order, dated 10-2-1976 the learned trial Judge passed the following order on the said application of the vendee-defendant oiti {{URDU TEXT}} ' While dealing with issue No, 10 the learned trial Judge held that since the plaintiff had deposited the pre-emption money within the extended period, therefore, he held the same to have been deposited well within time. In Niaz Muhammad Khan appellant v. Mian Fazal Raqib (1) it was held : "The requirement of a cash deposit or security contained in subsection (1) is intended to guard against vexatious and mala fide litigation, and thus to guarantee a vendee against frivolous proceedings on the part of possible pre-emptors. If the order made under subsection (1) is not complied with, then the consequence of such non-compliance, according to subsection (4), is that the plaint shall be rejected."
As explained above the failure of the pre-emptor to comply with the order of the Court to deposit the pre-emption money before 6-1-1976, a valuable right accrued in favour of the vendee to get the plaint of the pre-emptor rejected and it was incumbent upon the trial Court to have considered all the pros and cons of the situation with which he was confronted and he should have by applying his mind to the statutory obligation rejected the plaint of the pre-emptor. It is needless to stress that wherein unambiguous language the legislature has laid down a statute then there is nothing left for the Court to twist it for its own interpretation. The words :- {{URDU TEXT}} are very clear in its implication meaning thereby that the pre-emptor was required to deposit the pre-emption money before 6-1-1976 i,e, on or before 5-1-1976. On the other hand as stated earlier the plaintiff instead of depositing the pre-emption money within the stipulated period on 6-1-1976 made an application for extension of the time for such deposit which application was granted without giving any reasonable opportunity to the opposite side to whom a valuable right to get the plaint rejected had accrued in view of violation of the statutory requirements within the meaning of section 23(4) of the Act ibid.
4. It was contended by the learned counsel for the petitioner that since the vendee-defendant failed to challenge the order extending the time for the deposit of the pre-emption money before the learned appellate authority within limitation, therefore, in appeal the learned appellate Court should not have pondered over that aspect of the matter. It is indeed very unfortunate that the learned counsel or the petitioner has agitated this point because it is well-settled principle that appeal is the continuation of the original proceedings and the entire case including all orders made therein shall have to be thrashed out by the appellate Court in forming a just view for the safer dispensation of justice because if every interim order made in a particular case has to be challenged in appeal there can be no end to litigation and almost every suit has to linger on for years due to challenging one order or the other of the trial Court by one side or other. In Divisional Superintendent, P. W. R., Lahore v. Muhammad Naseeruddin (2). It was held that :- "The objection that the decision on preliminary issues have become final is also not correct.
According to law it is open to a party to appeal against the whole case including all the interim orders made in a case."
(1) PLD 1974 SC 134 (2) PLD 1972 Lat. 301 ' In F. A. Khan v. The Government of Pakistan (1), it was held :- "In respect of the nature of an appeal the following propositions may be regarded as established :- (i)When an appeal is filed the matter becomes sub judice and is reheard by the appellate Court which does not Act merely as a Court of error;
(ii) after there has been an appeal even though an appellate Court simply affirms the order of the original Court the only decree or order in existence is the order of the appellate Court;
(iii) the original and appellate proceedings are steps one proceedings.
' Similarly in The Province of East Pakistan v. Hussain Mia (2), it was held that :- "On the filing of the appeal the entire matter became reopened and sub judice and had to be decided in accordance with the law then prevailing."
5. On the view of the matter that I take coupled with the observations of my brother Judge in Ghulum Sarwar v. Mst. Kalsoom Bibi etc. (3), that extension in time in the matter of deposit of Zar-e- panjam should not be allowed without hearing the other side, I fully agree with the findings of the learned District Judge holding that in his failure to deposit the pre-emption money within the stipulated period the plaint of the plaintiff had to be rejected and was rightly rejected by the learned appellate Court. There is no force in this civil revision petition which is hereby dismissed with costs.
(1) PLD 1964 SC 520 (2) PLD 1965 SC 1
(3) NLR 1985 Civil 71