1. ' Civil revision by the defendants in the pre-emption suit raised only two material points for consideration relating to superior right of pre-emption claimed by Muhammad Jee original pre- emptor and the propriety of extending time for deposit of purchase-money by the lower Court.
2. ' Factual matrix giving rise to the controversy briefly stated is:--Three Kanals, one Marla of land, situated at Mauza Tramari, in the then Tehsil and District Rawalpindi belonged to Muhammad Arif son of Muhammad Irfan. By a deed of sale registered on 10-12-1975, he sold it to Muhammad Sadiq for a consideration of Rs,20,000. Rs,9,500 were paid before the Sub-Registrar, and, balance consideration in the sum of Rs,10,500 was acknowledged to have been received at home.
3. Muhammad Sadiq further sold the land in dispute to Mst. Bushra Khanum through a deed of sale registered on 29-7-1976 for a consideration of Rs,36,000. Muhammad Jee, as paternal-uncle of the vendor co-owner in the land sold; and, non-occupancy tenant on it, claimed preemption in respect of the above sale and brought a suit for pre-emption on 10-12-1976. Muhammad Sadiq alone was the defendant in the pre-emption suit. He did not appear to contest. Trial against him was held ex parte. Upon ex parte proof, trial Court ex parte decreed suit on 16-5-1977, subject to payment of Rs,9,500 to be deposited by or before 15-6-1977. In default, preemption suit was to stand dismissed. Pre-emptor complied with the terms of ex parte decree and deposited purchase price in Court, in time. On 20-3-1978, defendant applied for setting aside of ex parte decree against him. Application was dismissed on 25-10-1979 by the trial Court. Defendant preferred an appeal against this decision. In appeal, Mst. Bushra Khanum was impleaded as co-appellant. On 9-2-1982, appeal was allowed and pre-emption suit was remanded for disposal on merits. Upon remand, Mst. Bushra Khanum was added as defendant No,2 in the suit. Both the defendants submitted a joint written statement and resisted the pre-emption suit against them. On 28-6-1982, the trial Court settled following issues for determination :-
(1) Is the suit time-barred?
(2) Is the suit incorrectly valued for the purposes of court-fee and jurisdiction?
(3) Whether the suit land is immune from pre-emptive attack in view of preliminary objection No,3 of the written statement?
(4) Has the plaintiff a superior right of pre-emption qua the defendants/vendees?
(5) Whether ostensible sale price of Rs,20,000 as price of the suit land was fixed in good faith and actually paid?
(6) If the above issue is not proved, what was the market value of the suit land at the time of its sale?
(7) Relief.
4. ' Upon taking evidence from the parties and its examination, on 31-34984, the trial Court again decreed pre-emption suit subject to payment of Rs,20,000 to be deposited in Court before 30-4- 1984. In default, pre-emption suit was to stand dismissed. Legal representatives of original plaintiff who died in course of trial of the suit preferred an appeal against the decree claiming reduction of the sale price to Rs,9,500. Appeal was instituted on. 30-4-1984. Alongwith the memorandum of appeal, an application for additional evidence under Order 41, rule 27, Civil Procedure Code and also an application under Order XXXIX, rules 1, 2, Civil Procedure Code for extending time for deposit of the pre-emption money were filed. On the same day, lower Appellate Court held that since the time for deposit fixed in the decree of the trial Court had already run out, without notice, it could not extend the time, and, accordingly issued notice to the other side for the next date of hearing.
5. Thereafter, neither application for additional evidence nor application for extension of time were finally dealt in the lower Court. Defendants had also preferred crossappeal/objections against the decree of the trial Court. They had claimed dismissal of pre-emption suit against them. By a common judgment. Passed on 22-9-1985, lower Appellate Court allowed cross-appeal and dismissed the appeal preferred by pre-emptor. In consequence, pre-emption suit was held barred by limitation and dismissed. On 26-12-1985, full purchase-price was deposited by the pre-emptor.
6. He preferred Civil Revision No,45-D of 1986 in this Court. It was directed against the decision of the lower Court holding preemption suit barred by limitation. On 27-2-1991, civil revision was allowed and after setting aside of the decision on point of limitation, the appeal/cross objections were remitted for deciding them on merits. It may be observed that Late Maulvi Siraj-ul-Haq, the then learned counsel for the petitioners had conceded the price payable for the land in dispute and submitted that in case of decree, appellants were prepared to pay Rs,20,000 as sale price for it.
7. Upon remand, defendants submitted a petition that since pre-emption money was not deposited in accordance with the terms of the decree, the appeal was liable to fail. Opponents submitted reply. Further, on 16-6-1991 lower Court accepted application for additional evidence and exhibited pedigree-table already marked as Exh.P3, in ex parte proof, as Exh.P4. Respondents to the appeal decided not to give any evidence in rebuttal. On 26-6-1991 crossappeal/objection was dismissed with costs whereas, the appeal preferred by successors of original pre-emptor was disposed of by maintaining decree of the Trial Court and extending time for deposit of purchase-price till 26-12- 1985, the date of its deposit in Court. Net result of the above was that deposit of purchase price on 26-12-1985 was held in time. It was this judgment and decree of the learned Court below that are sought to be revised by this Court. Narrative shall not be complete without a reference to another limb of litigation. After ex parte decree and payment into Court of Rs,9,500 fixed in it, decree-holder sold the land-in-dispute to Hakeem Muhammad Fayyaz and his wife for a sum of Rs,1,00,000 on 21- 5-1980 through a registered sale-deed. Out of the agreed sale consideration Rs,95,000 were received in presence of the Sub-Registrar and the remaining amount was acknowledged to have been received earlier at home. Muhammad Hafeez son of Muhammad Jee claimed pre-emption in respect of the above sale and filed a pre-emption suit against vendees Muhammad Fayyaz and Mst. Nusrat Begum in the Court of Senior, Civil Judge of Islamabad on 19-5-1981. On 3-5-1982, vendees conceded preemption to Muhammad Hafeez and agreed for a decree in the suit upon payment of Rs,1,00,000 paid by them for the land. On the same day, plaintiff expressed his readiness to pay the stated consideration and requested for a reasonable time to pay the purchase-price into the Court. Consequently, the trial Court decreed the pre-emption suit in favour of Muhammad Hafeez by allowing him time to deposit balance purchase-price (Zar-e-Panjum already deposited) till 29-7-1982. In .Default, the suit was declared to have been dismissed. It appears that full purchase-price was not paid in time and the preemption suit was allowed to have been dismissed. Thereafter, Muhammad Hafeez applied for refund of Zar-e-Panjum. In all probability, amount of Zar-e-Panjum was returned to him. It further transpired at the hearing that out of the land in dispute, a Kanal was donated to Muhammad Jee by the vendees. Muhammad Hafeez is dead and is represented by his heirs respondents Nos.3 to 6, in civil revision. In result of this branch of litigation, Muhammad Jee pocketted Rs,1,00,000 as the sale price for the land in dispute from his vendees and a Kanal of it in gift from them. In the context of above facts and circumstances, two points covering superior right of pre-emption and propriety for extending time for deposit of purchase price emerged for consideration. Learned counsel for the petitioners submitted that neither superior right of pre-emption was established nor was there any valid ground for extending time for deposit of pre-emption money. It was submitted that additional evidence taken in first appeal was violative of procedural requirements in Rule 27 of Order 41, Civil Procedure Code, and could not have been allowed to fill in gaps in the evidence let at the trial. As far the other point touching the propriety for extending the time, learned counsel argued that despite clear awareness about real and true market value of the land-in-dispute, that it was not less than the price paid for it, initially the original pre-emptor and after his death, his successors prolonged litigation frivolously with sole object to cause harassment and gain time for. Mustering funds to meet the liability. Learned m counsel for the respondent met the argument by urging that evidence on record sustained findings on superior right of pre-emption and as far extension of time for deposit of purchase-price, submitted that in default of exceptional circumstances, not existing in the instance case, the Court was ordinarily bound to grant extension of time. In this behalf, learned counsel referred to the cases of Haji Ishtiaq Ahmad and 2 others v. Bakhshaya and 7 others 1976 SCM R 420; Ghulam. Muhammad and another v. Irshad Ahmad and another PLD 1982 SC 282; Khurshid Akbar v. Mian Manzur Ahmad and another 1982 SCM R 824; Dost Muhammad and others v. Nazar Hussain Khan and others 1984 SCM R 325; Bhai Khan v. Allah Bakhsh and another 1986 SCM R 849; Hakim Ali and another v. Iftikhar Ahmad Khan 1990 SCM R 1571 and Muhammad Irshad v. Ch. Fazal Haq and 5 others 1991 SCM R 2149.
8. ' Having heard learned counsel for the parties at length and seen the record, contention regarding want of superior right of pre-emption was not borne out, whereas, the other contention relating to time-extension needed close scrutiny and consideration. As for right of pre-emption, original plaintiff himself appeared in the witness-box and deposed on oath that vendor was son of his brother. This clear statement on relationship in examination-in-chief was not subjected to serious cross-examination by or on behalf of the vendees. Also certified copy of pedigree-table Exh.P4 (Exh.P3 in ex parte proof) sufficiently corroborated statement of plaintiff Muhamamd Jee. None from the defendants claimed any right in them, nor, did they seriously dispute relationship put forth by the plaintiff. Upon preponderance of evidence in the case, Court below rightly found relationship of the pre-emptor with the vendor established on record. Therefore, there was no legal flaw in admitting certified copy of pedigree-table in evidence. It already existed on file as Exh.P3, in ex parte proof. There was no doubt about its authenticity or relevance. It was inadvertently omitted from being put in evidence at the trial. Therefore, the Court below rightly took it on file for reading it in evidence as additional evidence. Despite time and opportunity, petitioners led no evidence in its rebuttal. Upon careful reading of record, I entertain no doubt that decision of superior right of pre- emption was unexceptionable. Criticism of the finding on this issue, was, therefore, not much in point.
9. ' Having dealt with the decision of superior right of pre-emption I shall now propose to attend the other point. It has caused moments of consideration and engaged my attention seriously. Exercise of discretion was always a delicate matter and was difficult for an Appellate or Revisional Court to interfere with an order made in exercise of discretion. However, if the discretion which was a judicial act was found to have been exercised arbitrarily or on wrong notion or conception of law, it was equally the duty of an Appellate/Revisional. Court to interfere with it and . Ass an order which would he in the circumstances of .The case in consonance w7th justice and in accordance with law. Rule in Bhai Khan's case was a clear authority regarding exercise of power and discretion for allowing extension of time for deposit of pre-emption money. For facility of reference, a passage from Bhai Khan's case is extracted below:- "From the foregoing discussion, it is clear that the proposition that the Appellant Court has power to extend time is not disputed by the High Court. All that it has held this will be exercised in fit and suitable cases and that the present case was not such a case. The submission of the appellate, however, is that in view of this Court's judgment in Khurshid Akbar v. Mian Manzoor Ahmad, 1982 SCM R 824 the Appellate Court is bound while dismissing the pre-emptor-appellant's appeal to grant 'reasonable time' to him to deposit the balance of the pre-emption, amount in every case.
10. We do not agree and we may clarify that although normally the Appellate Court should grant `reasonable time' to the pre-emptor in cases of this kind while dismissing his appeal but it can, in exceptional cases, such as the present, refuse to exercise its discretion in his favour. We share the view of the High Court that the pre-emptor did not have sufficient funds and was merely interested in gaining time by filing appeals, having hardly any merit and it was, therefore, not in the interest or justice to have extended time in favour of the pre-emptor in this case for depositing the pre- emption money."
11. ' It is manifest from the extracted passage that though ordinarily the Court should grant reasonable time while dismissing the appeal or revision as the case may be, yet in exceptional cases, in exercise of its discretion, the Court can also refuse to extend the time What were those exceptional cases, the Supreme Court gave no indication except a broad outline of one instance. In my view, there could be other instances also to weigh for regulating exercise of discretion by the Court. The case under consideration was a clear example of the pre-emptor trying to gain an unfair advantage in litigation. It was true that in the first round, he succeeded in an ex parte decree to get the land for Rs,9,500 and deposited this amount in time fixed in ex parte decree. But having got the land, he sold it for a large sum of Rs,1,00,000 of which Rs,95,000 were paid before the Sub- Registrar. The pre-emptor would have acted wiser to deposit the decretal amount in time filed in the decree made on 31-3-1984. That notwithstanding, he took up the matter in appeal for reduction in the sale price. He applied for extending the time, after expiry of the period fixed in the decree of the trial Court. After pre-emption suit was dismissed as barred by limitation on 22-9-1985, full purchase price was deposited on 26-12-1985, on their own. At that time, there was no existing executable decree in their favour. In absence of proper material, it may be a difficult task to find that the pre-. Emptors had not ready funds with them. Yet it could easily be inferred from the surrounding circumstances, that they were unnecessarily prolonging the litigation for some undisclosed reasons. It may not be without interest to observe that full price was conceded by their learned counsel on 27-2-1991 in this Court. However, events subsequent to ex parte decree channelling in the aforequoted offshoot of the main litigation were neither disclosed to this Court nor the fact that the balance price was already deposited. In reality, respondents by their own conduct disentitled them to an exercise of discretion in their favour. It was correct that in the first instance, land was sold for a sum of Rs,20,000 but in the month of May, 1980, Muhammad Jee himself sold it for Rs,1,00,000. This should have served,. a clear pointer to him of the market value of the land. Nonetheless, he persisted in further litigation and fell a trap of his own weaving. All these facts were not before the lower Court, when it extended time for saving successful pre-emption.
12. Sale of the land in dispute, soon after ex parte decree was man festive of absence of a `Zaroorat' or avoidance of `Zarar'. In view of all the facts and circumstances, I have not been able to uphold exercise of discretion by the lower Court for extending time about payment of purchase-price into Court. It is in this view that I would accept revision petition, set aside impugned judgment and decree of learned Judge below dated 20-6-1991 and dismiss the pre-emption suit for failing to pay full purchase price in time fixed in the decree of the Trial Court. There shall be no order as to costs in this Court.
13. Records be returned.