This petition by Ghulam Rasul/vendee/defendant under Article 199 of the Constitution of Pakistan (1973) calls in question the order dated 8-9-1987 whereby the revisional Court accepted revision application filed by Muhammad Yousaf/pre-emptor and allowed his prayer for extension of time to deposit the pre-emption money.
2. The facts, briefly stated, giving rise to this petition are simple as well as admitted. These are: that respondent No. 2 instituted a suit for possession through pre-emption in respect of the suit land (detailed in the plaint) against Ghulam Rasul, petitioner. As he had not entered appearance despite service, he was proceeded against ex parte and the suit filed by respondent No. 2 was decreed on- 6-7-1982 subject to payment of pre-emption money (inclusive of Zar-i-Punjam, if deposited) up to 19-9-1982; the decree stipulated that in case of default the suit would stand dismissed. The petitioner filed an application under Order IX, Rule 13, C.P.C. for setting aside the ex parte decree on 8-7-1982. The application was allowed on 2-10-1982 subject to payment of costs of Rs.50. The suit was listed for hearing on 10-6-1984. On that date, the learned counsel for the petitioner made a statement to the effect that he wanted to withdraw the application for setting aside ex parte proceedings as well as ex parte decree dated 6-7-1982 and also declined to- pay costs as directed by Court vide order dated 2-10-1982. On this statement, the order of the Court dated 2-10-1982 was recalled and the ex parte decree passed by the, first Court vide order dated 6-7-1982 was restored. Respondent No. 2, thereafter, found that he had not complied with the terms of decree dated 6-7-1982 as he had not deposited the pre-emption money within the time prescribed in the decree. Confronted with this situation, respondent No. 2 moved an application under section 151, C.P.C. on 12-6-1984 for extension of stipulated time to deposit pre-emption money. The application was contested. On 24-1-1987, the learned first Court rejected the application by holding that after passing the decree, the Court had become functus officio and had no jurisdiction to extend the time prescribed in the decree. Feeling aggrieved with this decision, respondent No. 2 preferred a revision petition which was allowed by the learned Addl. District Judge vide order dated 8-9-1987.
3. The learned counsel for the petitioner, in support of this petition, relied upon Shah Wali v. Ghulam Din (PLD 1966 SC 983) to contend that the trial Court after passing the decree became functus officio and had no jurisdiction to extend the time fixed in the decree under the law. On the basis of this argument, it was suggested that the order of the revisional Court be treated as void ab inito and be set aside.
4. On the contrary, learned counsel for respondent No. 2 contended that the petitioner had come to Court with unclean hands and is, therefore, not entitled to any relief under equitable jurisdiction of this Court. According to the learned counsel, in the first instance, the petitioner submitted as application for setting aside the ex parte decree which was allowed on 2-10-1982. Thereafter, he made a statement to withdraw his application for setting aside the ex parte proceedings and ex pane decree and even refused to make payment of cost in compliance with the order of trial Court dated 2-10-1982. On these facts, it was suggested that conduct of the petitioner was soiled with tortiousness.
5. After hearing the learned counsel for the parties at a considerable length, I find considerable force in the argument of the learned counsel for the petitioner. This question came up for consideration as back as in 1966 beforethe Supreme Court in Shah Wali v. Ghulam Din (PLD 1966 SC 983). In this case Ghulam Din had instituted a suit for pre-emption against the appellant Shah Wali.
The suit was decreed on 24-2-1961 subject to condition of depositing in Court on or before 21-3-1961 the sum of Rs.3,000 on account of pre-emption money (including 1/5th already deposited by him).
It was further directed that, in default, the suit would stand dismissed. On appeal, the learned first appellate Court enhanced the pre-emption money from Rs.3,000 toRs.8,000 which was directed to be deposited within one month of appellate decree. The plaintiff went up in second appeal to the High Court but his appeal was treated as revision and was dismissed in limine on 2-10-1962. The pre-- emptor had deposited 1/5th pre-emption money namely Rs.1,600 on 31-3-1960; he deposited a further sum of Rs.1,400 on 7-3-1961. In pursuance of the decree passed by the first Court on 18-3- 1962, he made a further deposit ofRs.4,076.25. Finding deposit short of pre-emption money as fixed by the appellate Court by Rs.123.75, the appellant on 22-5-1962 moved an application' to first Court alleging therein that on account of short fall in the deposit of pre-- emption money, the suit of the plaintiff stood dismissed with effect from 30-4-1962, He further prayed that the cost may be paid to him out of pre-- emption money deposited by him in the Court. The trial Court agreed with him and ordered that Rs.5 be paid as cost to the appellant out ofpre-emption money deposited in the Court. Becoming cognizant of short fall while depositing pre-emption money, the respondent applied for extension of time to make up deficiency in the pre-emption money to the trial Court.
This application was dismissed by the learned trial Court by order dated 31-1-1963. The plaintiff/respondent's appeal was, however, allowed by the District Judge,Jhelum, who by order dated 18-4-1963 held that the suit of plaintiff had not stood dismissed and directed that the deficiency of Rs.123.75 be deposited on or before 2-5-1963. Shah Wali challenged this order unsuccessfully, in revisional jurisdiction of the High Court. Feeling dissatisfied, Shah Wali filed petition for Special Leave to Appeal which was granted and ultimately was allowed by the Supreme Court and the order of the trial Court was restored. While speaking for the Bench, his Lordship Mr. Justice S.A. Rahman, Judge of Supreme Court (as he then was) said:- "Our attention has not been invited to any case, in which it might have been held that the time for deposit of pre-emption money, can be extended by the appellate Court, even when no appeal is pending against the original decree, or when an appeal from such a decree has been disposed of earlier. On the contrary the ruling relied upon by the learned Chief Justice itself declared that the trial Court could not have extended the time for deposit of the pre-emption money under section 148 of the Code of Civil Procedure. That such an order of refusal of extension of time was not appealable finder section 148 of the Civil Procedure Code, is clear from the provision of section 104 of the Code. There is also ample authority for this view. Reference in this connection may be made to Surajan Singh v. Ram Bahal Lal (1913 ILR 35 All 582) and Muhammad v.. Chiragh and others (PLR 1911 SC 134).
In Sukramdas v. Nazar Muhammad and others ILR 6 Lah. 316) .a Division Bench of the Lahore High Court held that if the appellate Court does not extend the time for payment of pre-emption money, and merely restores the order of the Court of first instance on appeal from the order of the Court of first appeal dismissing the suit the time for payment must be regulated by the original decree.
It is well-settled that the operation of a decree passed by the Court of first instance is not automatically suspended, on the mere filing of an appeal therefrom. This is also clear from rule 5, Order XLI of the First Schedule to the Code of Civil Procedure, which provides in sub --rule (1) as follows: 'An appeal shall not operate as a stay of proceedings under a decree or order appeal from except so far as the appellate Court may order, nor shall execution of decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.'
This being the position in law, unless in an appeal from the decree itself, the time fixed for deposit of the pre-emption money is varied, it seems to me, that the successful pre-emptor can disregard the time limit fixed in the decree, at his. peril. He might, of course, consider that the time allowed for payment by the trial Judge was too short, or that the pre-emption money fixed was excessive. In such a case, he might anticipate that the appellate Court would interfere, in the course of the appeal with the decree and might give an extension of time for deposit of the correct amount. But his anticipation is not realised in this regard and he has failed to deposit the money within the time fixed by the Court of first instance, the result must be that his suit would be dismissed. The same would be the position if the necessary deposit is not made within the extended time fixed by the appellate Court as happened in the present case:'
6. Applying this principle to the facts and circumstances of this case, it is crystal clear that respondent No. 2 pre-emptor had filed an application for extension of time on 12-6-1984 when the ex parte pre-emption decree dated 6-7-1982 stood revived and no lis was pending before the learned first Court. In regard to this circumstance, the learned first Court was correct in coming to the conclusion that he had no jurisdiction to take cognizance of the application filed by respondent No. 2 and extend time fixed in decree dated 6-7-1982. The revisional Court, in view of law declared by the Supreme Court had no jurisdiction to interfere with the order of the Court below. This being legal position, the order passed by the Revisional Court is clearly without jurisdiction and cannot sustained. It is a settled law that where subordinate functionaries of State/Court/Tribunals act wholly without jurisdiction or pass any order or in excess of its authority, this Court comes to the rescue of aggrieved party in Constitutional jurisdiction and strikes down such orders/actions which are patently unlawful and unjust (see Raunaq Ali v. Chief Settlement Commissioner (PLD 1973 SC 236).
7. As regards the question that the petitioner had come to this Court with unclean hands, it is sufficient to note that the respondent No. 2 was bound to comply with the terms of the decree as required by Order XX, Rule 14, C.P.C. and deposit pre-emption money within the time prescribed by the Court. This being not done, the respondent is not entitled to raise the question of conduct of the petitioner in this Constitution petition.
8. In the light of foregoing discussion, this Constitution petition is allowed. The order passed by the Revisional Court dated 8-9-1987 is hereby set aside and the order passed by the learned trial Court is hereby restored. There shall be no order as to costs.