Facts giving rise to this regular second appeal are that on 30th October, 1967, the appellant, Mst.
Anwar Mai, filed a suit against the respondents, Ghulam Qadir Shah and others, for possession of certain land through pre-emption. On 6th November, 1967, the Civil Judge, who was seized' of the suit, directed her to deposit Zar-e-panjum (1/5th of the sale price) amounting to Rs.3,600 and also make up the deficiency in court-fee till 5th December, 1967. Next date fixed in the case was 6th December, 1967. On 6th December 1967, it transpired that Zar-e-panjum had not been deposited.
Learned Civil Judge, therefore, rejected the plaint, under subsection (4) of section 22 of the Punjab Pre-emption Act, 1913. His order was challenged by the appellant by means of appeal before an Additional District Judge, but in vain. She has, therefore, come up in second appeal to this Court.
2. It was contended by learned counsel for the appellant that before rejecting the plaint the learned Civil Judge ought to have allowed an opportunity to the appellant to explain why Zar-e- panjum had not been deposited but as no such opportunity was afforded to her, his order of rejection of plaint was not sustainable. In this connection, reliance was placed by him on Umar Hayat v. Aziz Ullah Khan etc. PLD 1956 Lah. 297, Ram Rattan, v. Rajaram AIR 1923 Lah. 643, anal Mehr Muhammad Din v. Pandit Anant Ram and another AIR 1939 Lah. 25.
3. On the other hand, it was submitted by learned counsel for the respondents that it was not necessary for the learned trial Court to call upon the appellant to show cause for non-deposit of Zar-e-panjum. According to them, it was for the appellant to make an application for extension of time stating reasons for which the deposit was not made by her, but as no such application was filed the learned Civil Judge was justified in non-suiting her. It was also urged by them that if the appellant could not show cause before the learned trial Court for non-deposit of Zar-e-panjum, due to one reason or the other, she could do so before the first appellate Court, but this was not done. Eventually, it was before this Court that, while filing second appeal, she furnished explanation for her failure to deposit Zar-e-panjum. This explanation finds mention in sub-paragraphs (d), (e) and (j) of paragraph 4 of the grounds of this appeal and reads as follows:- "(d)That the appellant is a Pardahnashin lady and deserved more relaxation than male pre- emptor.
(e)That the appellant gave birth to a son about a week before the institution of the suit. Due to after affects of delivery, there were some complications and the appellant fell seriously ill and her child was also seriously ill on 5-12-1967 and, therefore, the appellant was unable to go to the Court. Even otherwise appellant could not be expected to carry the money herself to the Court and due to the illness of the appellant and new born baby her husband could not go to the Court for depositing the amount. He had been told by the appellant's learned counsel that the time given was too short and he would be able to get extension of time. Under these circumstances the appellant was under a misapprehension otherwise she had the money and could have made some alternate arrangement for sending the money to be deposited in Court.
(j)That the amount assessed as Zar-e-panjum was exorbitant."
I was informed by learned counsel for the respondents that the appellant gave birth to a son on 27th September, 1967, that is, more than a month before the institution of the suit and not before a week thereof. They produced before me a copy of birth entries to support their contention. In addition, they placed on record affidavit of respondent No. 3, Muhammad Akram, to refute the plea of illness raised by the appellant. They cited Havaldar Abdul Shakur v. Shama Begum alias Shama PLJ 1984 Lah. 352 to contend that if the appellant was not well, she could make alternative arrangement for the deposit of Zar-e-panjum.
4. In reply to the arguments of learned counsel for the respondents, it was submitted by learned counsel for the appellant that in view of the law laid down in the cases of Umar Hayat, Ram Rattan and Mehr Muhammad Din this appeal may be accepted and the suit remanded to the learned trial Court for deciding the question whether the appellant had sufficient cause for her failure to deposit Zar-e-panjum. According to him, the said question, being a question of fact, could not be gone into by this Court in second appeal. As against this, it was maintained by learned counsel for the respondents that the appeal is continuation of the original proceedings and, therefore, this Court is competent to decide the above question.
5. In the case of Umar Hayat, cited by learned counsel for the appellant, the plaintiff was required to deposit Zar-e-panjum before 17th October, 1952. On that date, the Senior Civil Judge, who was seized of the suit, found that Zar-e-panjum had not been deposited. Plaint was, therefore, rejected by him. The plaintiff filed appeal before the District Judge but without success. He, therefore, took second appeal to the High Court. It was found by the High Court that although "16th of October, 1952 was not a holiday so far as the civil Courts were concerned, it had been declared a holiday by the Punjab Government and the Treasury office was closed on that date". It was clear, therefore, that the plaintiff could not have deposited the amount on 16th October. A reference was also made to section 8 of the Punjab General Clauses Act wher eunder if any act or proceeding was allowed to be done in any office within certain period and the office was closed .On the last date of the period the act could be done on the next opening day of the office. In this view of the matter, it was held that the plaintiff had right to deposit Zar-e-panjum on 17th October, 1952 and the plaint could not have been rejected at 9-15 a.m. As the whole of 17th October was available to the plaintiff for deposit of money. Resultantly, second appeal was accepted and the order rejecting the plaint was set aside.
6. In Ram Rattan's case, which was also relied upon by learned counsel for the appellant, the suit was at the stage of evidence when the defendant's counsel drew the attention of the trial Court to the fact that plaintiff had not complied with the order of payment of 1/5th of the purchase money and the Court on discovering this rejected the plaint straightaway. Order of the learned trial Court was challenged by the plaintiff by filing appeal before the District Judge. The learned District Judge accepted the appeal holding that there was sufficient reason for allowing the plaintiff a further opportunity to make the deposit. His reasoning in this behalf was as follows:- "I think that when the matter was brought to the notice of the Court on November the 11th, it should have called on the plaintiffs Mukhtar for some explanation as to why the amount had not been deposited, but the order does not show that this was done. There is, it is true, also nothing to show that any application was made by the plaintiff's Mukhtar for an extension of time beyond his own affidavit in which he states that he offered to deposit the money if half an hour were allowed him for this purpose, but if this affidavit be not relied on, the order itself shows that it was passed summarily. In accordance with 78 P.R. 1909, the time could have been extended even after the period for depositing the money had passed, and I think that in the circumstances of the case there was sufficient reason for allowing the plaintiff a further opportunity."
7.In the case of Mehr Muhammad Din, which too was cited by learned counsel for the appellant, summonses for striking of issues were ordered to be issued against the defendants for 26th April, 1937 7th April, 1937. Zar-e-panjum was required to be deposited upon the Peshi Kham. On 14th April, 1937, the plaintiff put in an application for deposit of Zar-e-panjum. On the same day, the trial Court allowed him to deposit it on his responsibility. On 26th April, 1937, it was pointed out by the defendant's counsel that Zar-e-panjum had not been deposited within time. Thereupon, the Court at once passed an order to the effect that as Zar-e-panjum had not been deposited in Court before Peshi Kham the plaint was rejected. On the same day, the plaintiff put in an application for extension of time for depositing of Zar-e-panjum. On this, it was noted by the Court that the application had been presented after about an hour of the pronouncement of the order. It was further directed by the Court that the application be placed on the file. Plaintiff preferred an appeal to the District Judge against the rejection of his plaint. The appeal was dismissed and, therefore, he went in second appeal to the High Court. View taken by the High Court was that the plaintiff was under a bona fide misapprehension as to the date before which he had to deposit Zar-e-panjum in Court. According to the High Court, instead of ordering that Zar-e-panjum should be paid before Peshi Kham the Court ought to have mentioned a particular day for the deposit of Zar-e-panjum. It was felt that the phraseology left room for misapprehension. The High Court, therefore, accepted the appeal, set aside the judgments and decrees of the Courts below and restored the plaint.
8. A comparison of the aforementioned facts of the cases of Umar Hayat, Ram Rattan and Mehr Muhammad Din with the facts of the instant case, which have been spelt out earlier, would reveal that the cited cases are distinguishable. In the cases under report, it was observed that before making the order of rejection of plaint for non-deposit of Zar-e-panjum, under subsection (4) of section 22 of the Punjab Pre-emption Act, the plaintiff should be allowed an opportunity to show cause against the passing of such order. In view of the facts of the present case it is, however, not necessary to go into the question whether it is obligatory for the trial Court to formally call upon the plaintiff in a pre-emption suit to explain why the plaint in his suit be not rejected, for non-deposit of Zar-e-panjum, before ordering rejection of the plaint because even if it is assumed that the appellant in the instant case was entitled to an opportunity to show cause against the order of rejection of her plaint but the same was not afforded to her, such opportunity became available to her not only at the stage of first appeal but also at the stage of second appeal. While taking first appeal to the learned Additional District Judge, however, she did not offer any explanation for her failure to deposit Zar-e-panjum. It was at the time of the filing of second appeal before this Court that she furnished the above explanation which will be examined in due course.
9.Before proceeding further, it will be appropriate to dispose of the contention of learned counsel for the appellant that the question whether the appellant had sufficient cause for her failure to deposit Zar-e-panjum cannot be determined by this Court and the case will have to be remanded to the learned trial Court for deciding the said question. Law is well-settled on the point that appeal is continuation of the suit. While deciding the present appeal, therefore, this Court can do all what the trial Court can do in regard to the matter in dispute. If any authorities were needed for this proposition, I would, with respect, refer to F.A. Khan v. The Government of Pakistan PLD 1964 SC 520, The Province of East Pakistan v. Muhammad Hossain Mia PLD 1965 SC 1, Nasir Ahmad and another v. Khuda Bakhsh and another 1976 SCMR 388, Mst. Amina Begum and others v. Mehar Ghulam Dastgir PLD 1978 SC 220 and Karachi Metropolitan Corporation v. Associated Constructors Ltd.
1984 CLC 1077. I agree with learnedi counsel for the appellant that the question whether it is a fit case for extending time for deposit of Zar-e-panjum is a question of fact, but since it will be adjudicated upon by the learned trial Court on the basis of affidavits and other material produced before it, which are presently available to me, I will have no difficulty in deciding the said question. I have yet to see a case in which such question was decided after framing issues and recording evidence thereon. As indicated earlier, parties are litigating for nearly two decades and, therefore, it is not desirable to remand the case for doing something which can easily be done by me. Cases are also not lacking in which it has been laid down that remand should not be lightly ordered and if the trial Court has failed to decide any question on which there is sufficient material before the appellate Court, the appellate Court should determine that question itself instead of remanding the case to the trial Court for the purpose. Pramatha Nath Chowdhury and 17 others v. Kamir Mondal and others PLD 1965 SC 434, Sher Muhammad and another v. Jamadar Ghulam Ghaus 1983 SCMR 133, Mst. Zahida Yousaf v. Mst. Iftikhar Akhtar 1982 SCMR 303 and Fateh Ali v. Pir Muhammad and another 1975 SCMR 221 are some of the cases in point. As explained earlier, in cases of Umar Hayat, Ram Rattan and Mehr Muhammad Din, cited by learned counsel for the appellant, also the question like the one involved in the present case was decided by one appellate Court or the other, without remanding the cases to the trial Court. As indicated above, in the case in hand, there is adequate material on the question whether the appellant had sufficient cause for non-deposit of Zar-e-panjum. I will, therefore, decide that question myself without remanding the case to the learned Civil Judge.
10. Explanation given by the appellant for her failure to make the requisite deposit is an afterthought inasmuch as it was offered before this Court but not before the two Courts below.
11. There is nothing in support of the explanation of the appellant, except the affidavit of her husband, Mahboob Ali. The appellant did not file her own affidavit. The affidavit of the appellant's husband is also not in accord with the explanation furnished by the appellant. In the grounds of appeal, it was stated by the appellant that she had been told by her counsel that the time given for deposit of Zar-e-panjum was "too short and he would be able to get extension of time". According to her, it was due to "misappprehension" thus caused by her learned counsel that she did not deposit Zar-e-panjum, "otherwise she had the money and could have made alternate arrangements for sending the money to be deposited in Court". In his affidavit, however,' it was, inter alia, deposed by the appellant's husband that the appellant "could not go to deposit the amount and there was no other adult member of the family who could be entruste with the amount or depositing". (Underlining, is by me). Further, the grounds of appea give an impression that Zar-e-panjum was not deposited in time due to the fact that the amount thereof was exorbitant. At the same time, it has been stated in the grounds of appeal as well as in the affidavit of the appellant's husband that the appellant had the money with her but it could not be deposited with the Court. If the appellant had the Zar-e-panjum with her, its quantum had nothing to do with her failure, to deposit it in time.
12. As for the misapprehension alleged to have been caused by learned counsel for the appellant, there is no affidavit of her learned counsel to the effect that he had assured that he would be able to secure extension of time for deposit of Zar-e-panjum. Mr. Ghulam Haider, Advocate, was her counsel before the trial Court. Grounds of the first appeal and those of the second appeal were, however, not filed by her said learned counsel but by Sh. Mumtaz Ahmad, Advocate, and Mr. Muhammad Anwar Buttar, Advocate, respectively. The appellant's counsel before the learned trial Court has, therefore, not supported the plea of misapprehension in any manner. In the affidavit submitted by the husband of the appellant it was stated by him that on 6th November, 1967 (when the appellant was ordered to deposit Zer-e-panjum till 5th December 1967 her counsel informed him "that the date given was short and he would be able to get extension of time whereby "the appellant and her husband "were misled". The suit was fixed for 6th December, 1967. Strangely enough, no application for extension of time was made to the learned trial Court on or before 6th December, 1967 although the appellant's counsel had more than one month to do so. It has already been noted that according to the appellant she had the money with her but could not deposit it due to the misapprehension caused by her counsel otherwise she could arrange to deposit it in Court. As against this, it was stated by her husband, in his affidavit, which was relied upon by the appellant, that the appellant had the money "ready in hand" but could not deposit it as she was misled by the above assurance of her counsel and also could not find any "adult member" n to make the deposit. If the appellant had acted on the assurance of her counsel, which is alleged to have been given by him on that very day when order for deposit of Zar-e-panjum was passed, then she need not have collected the money or looked up for someone to deposit it with the Court; and if the money was ready with her and arrangement could also be made for its deposit, then the said assurance should not have been heeded to. According to the appellant, the only reason for which Zar-e-panjum was not deposited was the assurance of her learned counsel regarding extension of time. If this was the position, then she need not have mentioned that she and her son were ill and that the amount of Zar-e-panjum was exorbitant. To my mind, the plea of misapprehension is a cock and bull story and does not inspire confidence.
13. Averment of the appellant that she gave birth to a child about a week before the institution of the suit is falsified by the copy of the birth entries produced by the respondents. These entries reveal that a son was born to her more than a month prior to the filing of the suit. There is no medical certificate supporting her assertion that she and her child were seriously ill on 5th December, 1967. Affidavit given by her husband in this behalf stands rebutted by the affidavit of Muhammad Akram respondent. In the case of Havaldar Abdul Shakur, cited by learned counsel for the respondents, also a suit for pre-emption was instituted by a lady. She was directed to deposit Zar-e-panjum before 15th December, 1981. She moved an application for extension of time stating that on account of poor yield of Kharif, she could not manage to collect this money and her husband, who was sick, could not arrange for this amount. Learned trial Court took a lenient view and extended time till 16th February, 1982 on her own responsibility subject to the objection of the vendee. Even on 16th February, she did not make the deposit and moved another application for extension of time on the ground that she had delivered a child and her husband was sick. On this, the learned Civil Judge allowed further extension to her. When the vendee appeared before the learned trial Court he took exception to the orders by which extensions were allowed. It was, however, held by the learned trial Court that the said orders were perfectly correct. The vendee, therefore, filed revision petition before this Court. That petition was accepted by my learned.
Brother Muhammad Sharif, J. And orders of the learned trial Court extending time for deposit of Zar-e-panjum were set aside, inter alia, for the following reasons:- "The suit was instituted on 27-10-1981 and it was odered that Rs.50,000, one-fifth of the pre-emption money may be deposited before 15-12-1981. The plaintiff-respondent had enough time to deposit this amount. A pre-emptor is required to be ready with the money and the reason of low yield of one crop was not a good cause for the extension of time. The respondent's husband was suffering from peptic ulcer, but if he, during this ailment, could institute a suit, I see no reason why he could not arrange for the deposit of the requisite amount. Both the reasons given in the petition of the plaintiff are not sound and genuine."
In the case of Malik Ejaz Nabi v. Ghulam Hussain and 15 others 1970 SCMR 169 the plaintiff prayed for extension of time for making deposit of Zar-e-panjum on the ground of illness. His request was not allowed by the trial Court and the order of the learned trial Court in this regard was upheld right upto Supreme Court.
14. In view of the documentary evidence (copy of birth entries) produced by the respondents, 1 find that the appellant has told a lie by saying that she delivered a child about a week before the institution of her suit. I am also not convinced that she and her son were not well: Even if her plea in this behalf is accepted, it will be of little consequence because if she was unable to go to the Court, Zar-e-panjum could be deposited by her husband or her counsel or any one else. It is her own case that she could make alternative arrangement for the deposit thereof.
15. Lastly, I have to deal with the appellant's plea that she is a Pardanasheen lady. There is nothing to substantiate her plea. Even the affidavit filed by her husband is silent on the point. It is, therefore, difficult to believe that she is a Pardanasheen lady. Even if she is so, she could deposit Zar-e- panjum in the same manner in which she had instituted the suit.
16. What emerges from the above discussion is that the explanation furnished before this Court, for non-deposit of Zar-e-panjum, was coined by the appellant at a much belated stage but it was ill- contrived. Her explanation is not only unimpressive but also ridiculous. It appears G that either the appellant had no funds to make deposit of Zar-e-panjum or she and others concerned were grossly negligent in the matter. Be that as it may, there is no good reason for extending time for deposit of Zar-e-panjum. In this view of the matter, orders of the two Courts below do not call for any interference by this Court.
17. This second appeal, therefore, fails. It is dismissed with costs.