' This Regular Second Appeal arises from the judgment and decree dated 13-2-1980, of the learned District Judge, Gujranwala, whereby the present appellant's First Appeal was dismissed.
2. The land in question sold on 27-4-1968 was sought to be pre-empted through the two different suits. One of them was brought by the present appellant Rashid Ahmad on 'the qualifications of being a co-sharer with the four vendors, their relation and an owner in the estate. The other suit was brought by six sons of one of the four vendors namely, Rashid Ahmad. Both the suits were consolidated and decreed on 9-6-1970, one taking precedence over the other. It was provided that if the respondents who held the first-decree, failed to make deposit of the pre-emption amount before 5-9-1970, their suit was to stand dismissed, and the decree would then enure in favour of the present appellant Rashid Ahmad who would deposit the same amount by or before 31-10-1970.
3. Both the sets of pre-emptors filed appeals. The sons of the vendor filed their appeal before the High Court (R.F.A. No,79/1970) which was ultimately dismissed and they did not pursue it further. The appellant Rashid Ahmad on the other hand, filed his appeal before the learned District Judge on 21-7-1970 and obtained an order of status quo, which according to his contention had the effect of suspending operation of the direction requiring him to make the deposit before the specified date, that is 31-10-1970. After the rival appeal filed by the respondents in the High Court was dismissed on 3-2-1989, they made an application to the learned District Judge for formal dismissal of the appellant's suit as well. The ground advanced by them was that since the appellant too had failed to make deposit of the pre-emption amount within the time stipulated in the decree, his suit as well stood dismissed automatically.
4. The appellant contested this application contending that since he had obtained the order of status quo, he was entitled as of right to ask for extension of time of to deposit the pre-emption amount; that since he had still quite a few days more to make the deposit before obtaining the order of status quo, he had almost a vested right to he given afresh at least as many days; that dismissal of the respondent's suit was based on their failure to obtain status quo and, therefore, the two decrees could not be treated at par. Lastly, he submitted that since his suit was pending before the District Judge, he could ask for a further date for making the deposit.
5. The learned District Judge in his own way thought that since the suit of the first decree-holders stood dismissed in the High Court on refusal to grant them extension of time, it would be inequitable to allow the same to the present appellant, and thus treating them at par proceeded to dismiss the latter's suit. Aggrieved by it the appellant brought the present R.S.A.
6. Dr. A. Basit, Advocate for the appellant drew attention to the order dated 21-7-1970 of the learned District Judge whereby his appeal was admitted. The relevant portion of the order reads:-- "In the meantime, status quo shall be maintained". Counsel perused the impugned order to establish that the learned District Judge did not advert himself to the above portion of the admitting note which, according to him, had the effect of suspending all proceedings whatever stemming from the decree including the direction to deposit the pre-emption amount within the period stipulated in itself. He emphasized that operation of the entire decree was stayed so that nothing adverse to the appellant could flow from it thereafter and remarked that if the decree was still allowed to operate, there was no fun in asking for status quo against its operation. He relied upon Haji Ishtiaq Ahmad and 2 others v. Bakhshaya and 7 others 1976 SCMR 420 where reasonable time was allowed to a pre-emptor, who due to pendency of his appeal could not make the deposit before the date specified in the decree itself. Likewise he cited Khurshid Akbar v. Mian Manzur Ahmed and another 1982 SCMR 824 wherein unexpired period initially prescribed by the decree was allowed to the pre-emptor after dismissal of his appeal. It was observed that if the operation of the decree was suspended on application of the petitioner, unexpired period allowed by the lower Court for deposit of pre-emption money would restart from the date of dismissal of the appeal. Lastly, he sought support from Shah Wali v. Ghulam Din alias Gaman and another PLD 1966 SC 983 where after a thorough discussion of various aspects involved in such a situation, it was ruled that a pre-emptor was entitled to get extension of time for making the deposit if he could not do so earlier due to pendency of his appeal.
7. On the other hand, Mr. C.A. Rahman, Advocate for the respondents vendees drew attention to the application dated 18-7-1970 accompanying the latter's appeal before the learned District Judge in order to show that their prayer was intended to get only execution of the decree stayed, and not the deposit of the pre-emption amount. Similarly, he focussed attention on the appellant's application dated 28-10-1970 which was made by him specifically for the relief of staying deposit of the pre-emption amount claiming that he had incidentally omitted to ask for this relief in his previous application. Still further, counsel urged that the said application was withdrawn the very next day i.e, on 29-10-1970 suggesting that stay of deposit was not sought.
8. By making reference to these applications, it was vehemently argued that the appellant himself was septic about the efficacy of the order of status quo to the extent of staying the deposit; that this was the reason why he sought its elaboration in his second application dated 28-10-1970, and observed that when once he had chosen to make it, it had behoved him to have obtained a clarificatory order from the Court to the effect that the status quo granted to him had intended also to stay the deposit. He stressed that simple unqualified withdrawal of the application dated 28-10-1970 indicated that the appellant was not hopeful of getting the expression "status quo" construed so as to include suspension of the operation of the decree as regards deposit of the pre- emption amount. His next argument was that the order of status quo was not brought to the notice of the learned Distt. Judge inasmuch as the impugned order was totally silent about it and the reason for the omission, according to him, was that the appellant did not expect such interpretation of the expression "status quo" as he was now trying to put on it. Still further he claimed that its initial issuance being for "the meantime" was essentially meant till the next date and that this intent on the part of the learned District Judge was thoroughly exhibited by his successive orders dated 14-94970, 13-10-1970, 16-12-1970, 30-3-1971, 19-5-1971 whereby he had been specifically extending its operation till he adjourned the case sine die on 13-7-1972. He emphasized that though the other appeal for which this case was adjourned sine die, was dismissed by the High Court on 13-2-1980, yet the appellant did not ask, say for a year, for extension of time for making the deposit, until they made their application on 13-1-1980 for formal dismissal of his suit on account of default in making the deposit. While he had no cavil with the proposition of allowing reasonable time to a pre-emptor after dismissal of appeal, he, however, strenuously urged that such a request had to be made promptly after disposal of the appeal, and that taking a year's period to initiate was by no means promptness.
9. Ch. Mushtaq Ahmad, counsel for the respondents addressing separately almost reiterated the above arguments. He, however, contended that the appellant in his application dated 18-7-1970 had prayed only for staying taking of possession from him, without specifically asking for staying the deposit and that due to his default, his suit stood dismissed ipso facto. He cited Muhammad Sadiq and others v. Shakila Jamil 1983 CLC 1705, Muhammad Taj and another v. Subedar Muhammad Rasheed 1989 SCMR 505 and Sheikh Muhammad Sadiq v. Bostan and others PLD 1979 SC 917 to strengthen the point. His next plea was that though the District Judge had discretion to extend time for making the deposit, yet if he chose not to exercise discretion in favour of appellant, he could not insist for showing him indulgence by interfering with the discretion exercised against him. Besides, he invoked res judicata against the appellant as he was a party to the other suit where the pre-emptor was not allowed extension for the purpose. Reliance in this behalf was placed on Court of Wards, Hyderabad v. Muhammad Kaim PLD 1965 (W.P.) Kar. 170 (D.B).
10. In reply, Dr. A. Basit, Advocate refuted the contention that he had not sought in his application dated 18-7-1970 suspension of the deposit and that his prayer was limited only to staying delivery of possession. He drew attention to the broad-based prayer viz. {{URDU TEXT}} maintaining that it intended staying not only the lower Court from conducting all sorts of proceedings but also the respondent from initiating them at all. Likewise he explained withdrawal of his subsequent application dated 28-10-1970 on the ground that on reflection felt satisfied that "status quo" ordered in the context of his above prayer, covered also staying deposit of the pre-emption amount as the same was nothing but a. Proceedings {{URDU TEXT}} arising out of the decree. He traversed the charge of negligence for a year in asking for extension of time observing that he had no knowledge of withdrawal of the other appeal; secondly that his own appeal before the District Judge was still pending sine die awaiting final disposal and that he had every right to ask for its finalisation any time. Lastly he objected to the raising of plea of delay in this Court for the first time on the basis of the rule enunciated in Qazi Altaf Hussain and another v. Ishfaq Hussain 1986 SCMR 1427 that any point including one of law, not raised at the earliest could not be agitated in R.S.A. Or Revision.
11. It was patent on the record that the learned District Judge while refusing extension of time in the impugned order, omitted to take note of his own earlier order directing maintenance of status quo which obviously could not be read in isolation of the prayer reproduced above. It would be construed to cover all proceedings {{URDU TEXT}} relatable to the decree including deposit of the pre- emptor amount. The agreement that its purport was only to stay delivery of possession in execution, was not conformable to the prayer made in this behalf, nor was it specifically restricted only to that relief. It is true that the appellant himself initially entertained some misgivings about its efficacy, and later sought its clarification, but perhaps on rethinking he felt re-assured that it covered the mischief of staying the deposit. This was really a plausible reason for withdrawal of the clarificatory application. Nothing turns against the appellant from its withdrawal.
12. Nor was there any substance in the point that the 'status quo' issued "for the meantime" was limited only for the next, or next to next date. There is abundance of authority for the view that once status quo is issued, it would be a effective till it was recalled or the lis was finally disposed of.
Umda Begum and another v. Saad Saood Jan, C.S.P. And others PLD 1962 (W.P.) Lah. 306 was eloquent example. Here, the learned District Judge kept on extending it specifically over a number of dates, meaning thereby that he was not disposed to recall it, and finally while adjourning the appeal sine die, made no mention that it will cease to have effect. Even otherwise, when pitted against a comparatively better pre-emptor, it would have been otiose to stay deposit by the present appellant till a specified date, without waiting for final disposal of the former's appeal pending in the High Court. The main controversy was as to who succeeds in preference to the other, and until the same was resolved, recalling the status quo would have been quite fetish.
13. I could not see any point in the submission that the appellant being a party to the other appeal, refusal to grant extension of time by the High Court there, would operate res judicata against him.
The matter in issue there was the conduct of the other appellant. If the High Court thought he did not deserve indulgence for the exercise of discretion in his favour, how could it preclude the present appellant who had an independent right to demonstrate that the status quo obtained by him would help him seek extension of time to make the deposit? In fact the other appellant had not obtained any such "status quo" from the High Court. Obviously, the cases of the two could not be assimilated. The second contention of Ch. Mushtaq Ahmad Khan, Advocate that refusal to exercise discretion on the part of the learned District Judge could not be interfered with in the Second Appeal, was equally uninspiring. The learned District Judge ignored his own order of status quo and quite erroneously equated this case with the other one, where the High Court had not ordered maintenance of status quo. Further, there the appeal was dismissed, whereas here the appeal was still pending sine die. Pendency makes the difference. A number of cases including those mentioned in para. 6 ante supported the view that after disposal of appeal, the appellant was entitled to reasonable time. The genesis of the concept was that due to pendency of the appeal, the appellant may have been entertaining a hope that he might get some modification in the decree particularly in regard to reducing the pre-emption amount and that till the same was decisively determined, it would be simply presumptuous to compel him to first deposit comparatively a larger amount and later withdraw a part of it. For this reason, pendency of appeal itself is regarded a sufficient reason to allow the appellant fresh period for making the deposit. In fact the rule has become almost inveterate inasmuch as even in the absence of "status quo", such extension of time is invariably conceded in favour of the pre-emptor. Nothing substantial was suggested to deviate from it in this case, which for all purposes appeared to be stronger in that the "status quo" granted to the appellant would entitle him as a matter of right to ask for such extension. The case-law on the point did not attract attention of the lower appellate Court and this is how conclusion drawn by it was erroneous.
14. Consequently the R.S.A. Is allowed. The impugned judgment/decree are set aside and that of the is Court is restored. The appellant shall now deposit the pre-emption amount determined therein by or before 14-4-1991, failing which his suit shall stand dismissed with costs.