' AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 29-2- 1992 passed by a learned Single Judge of the Lahore High Court in Civil Revision No, 272 of 1991 filed by the respondents against the judgment dated 20-6-1991 of the learned Additional District Judge, Islamabad, in Civil Appeal No, 106 of 1984 and Cross Appeal/Objections No,107 of 1984 filed by the appellants and the respondents respectively, whereby the appellants' above appeal was allowed and the respondents' cross-objections were dismissed in respect of the pre-emption dispute and extension of time for deposit of the balance of the pre-emption money was allowed up to 26-12- 1985 i,e. The date on which the respondents had deposited the balance of the price of the pre- empted suit property, allowing the same by setting aside the aforesaid judgment of the learned Additional District Judge by holding that the extension of time for deposit of the above balance amount was not justified and, therefore, the pre-emption suit stood dismissed on the expiry of the time allowed for deposit of the balance of the price. Leave to appeal was granted to consider, whether the learned Judge in Chambers fell into error in not following the law laid down by this Court in the case of Bhai Khan v. Allah Bakhsh (1986 SCM R 849) and in the case of Muhammad Irshad v. Ch. Fazal Haq (1991 SCM R 2149).
2. The relevant facts leading to the filing of the present appeal are that suit land measuring 3 Kanals 1 Marla bearing Khasra No, 111/2 comprising Khatooni No, 28, Khewat No, 19 being 19/20 share of the total land measuring 3 Kanals 4 Marlas as per Jamabandi for the year 1971-72 situated in the revenue estate of Trambri, Tehsil and District Islamabad, was owned by Muhammad Arif, who sold the same to respondent No, 1 (Muhammad Sadiq) for Rs,20,000 through a registered sale deed dated 10-12-1975. It appears that at the time of registration of the sale deed, respondent No, 1 paid Rs,9,500 before the Sub-Registrar and as regards the balance it was stated in the sale deed that it was already paid. It seems that before the appellants' predecessorin-interest, Muhammad Jee, filed the pre-emption suit in question, respondent No, 1 sold the suit land to respondent No, 2 (Mst.
Bushra Khanum) on 29-7-1976 for a consideration of Rs,36,000 through a sale-deed. Muhammad Jee filed the above pre-emption suit on 10-12-1976 for pre-empting the original sale affected by Muhammad Arif in favour of respondent No, 1 on the basis of his alleged rights as co-sharer, owner of estate and tenant against respondent No, 1 alone. It appears that the above suit proceeded ex parte and an ex parte decree in favour of Muhammad Jee was passed on 16-5-1977 fixing the price of the suit land as Rs,9,500 and not Rs,20,000 as was mentioned in the sale-deed. The above sum of Rs,9,500 was deposited by Muhammad Jee as was ordered in the decree. It seems that respondent No, 1 filed an application under Order IX, Rule 13, C.P.C. For setting aside the above ex parte decree, but the same was dismissed on 25-10-1979. Thereupon, respondent No, 1 filed an appeal which was allowed on 11-11-1981 and the aforesaid ex parte decree dated 16-5-1977 was set aside and the case-was remanded to the learned trial Court after impleading Mst. Bushra Khanum, who was formally impleaded by the trial Court as defendant No, 2 on 26-5-1982. It may be pertinent to mention that before the above appeal was allowed, Muhammad Jee sold the suit land to one Hakeem Muhammad Fayyaz and his wife for a sum of Rs,1,00,000 on 21-5.1980. It appears that Muhammad Hafeez son of Muhammad Jee filed a pre-emption suit against the aforesaid purchasers, Hakeem Muhammad Fayyaz and his wife. It seems that while the above suit was pending, Muhammad Hafeez died leaving behind respondents Nos. 3 to 6 as his legal representatives. The aforementioned pre-emption suit was decreed but since no deposit of the pre-emption money was made, the suit was dismissed on 29-7-1982. It may also be stated that after the dismissal of the above suit, aforesaid Hakeem Muhammad Fayyaz and his wife made a gift of one Kanal out of the suit land in favour of Muhammad Jee.
3. Be that as it may, after the above remand order upon allowing respondent No, l's aforesaid appeal, the pre-emption suit of Muhammad Jee proceeded against respondents Nos. 1 and 2, but during the pendency of the suit Muhammad Jee died in December, 1983, leaving behind the appellants as his legal representatives. Eventually, the above suit was decreed on 31-3-1984 and inter alia it was held that the price of the suit land was Rs,20,000 and not Rs,9,500 as was claimed by Muhammad Jee. The trial Court directed Muhammad Jee to pay the balance price before 30-4- 1984. It appears that against the above judgment/decree dated 31-3-1984 the appellants filed Civil Appeal No, 106 of 1984 against the fixation of the price of Rs,20,000; whereas respondent No, 2 filed Cross-objections No, 107 of 1984. The learned Additional District Judge by his judgment dated 22-9- 1985 dismissed the appellants' above appeal and allowed respondent No, 2's aforesaid cross- objections and thus dismissed the aforementioned pre-emption suit inter alia on the ground of limitation. It appears that on 26-12-1985 the appellants, on their own, deposited the balance of the above price of Rs,20,000. They also filed Civil Revision No, 45-D of 1986, which was allowed by the Lahore High Court on 27-2-1991 and the case was remanded to the appellate Court for decision afresh on the appellants' above appeal and respondent No, 2's aforesaid cross-objections. After the above remand, the learned Additional District Judge heard the above appeal and cross- objections and through his common judgment dated 20-6-1991 allowed the appellants' aforesaid appeal and dismissed respondent No, 2's above cross-objections. While allowing the above appeal of the appellants, the learned Additional District Judge also extended the time for the deposit of the balance of sale price up to 26-12-1985 i,e. Up to the date when the appellants had deposited the balance amount after the aforesaid judgment dated 22-9-1985 of the learned Additional District Judge dismissing the appellants' aforesaid appeal and allowing respondent No,2's cross- objections. Thereupon, respondents Nos. 1 and 2 filed above Civil Revision No, 272 of 1991, which was allowed by the judgment under appeal. After that the appellants filed a petition for leave to appeal, which was granted to consider the above question.
4. The sole question which requires consideration is, as to whether the learned Additional District Judge while allowing the appellants' above appeal by his aforesaid judgment dated 20-6-1991 was competent in law to extend the time for the deposit of the balance of the sale price up to 26-12- 1985.
5. In support of the above appeal, Mr. Bashir Ahmad Ansari, learned Advocate Supreme Court appearing for the appellants, has vehemently contended that as the learned Additional District Judge was competent to extend the above time, the learned Judge in Chambers was not justified in interfering with the above exercise of discretion by the learned Additional District Judge.
' On the other hand, Mirza Anwar Baig, learned Advocate Supreme Court appearing for respondent No, 2, has candidly conceded that an appellate Court is competent to extend the time for deposit of balance of sale price in a pre-emption suit while disposing of an appeal, but he submitted that the discretion to extend time is to be exercised reasonably, fairly and justly, and since in this case it was not so exercised, the learned Judge in Chambers was justified in interfering with the above exercise of discretion.
6. Before dealing with the above contentions of the learned counsel for the parties with reference to the facts of the present case, it may be pertinent to refer to some of the judgments on the point in issue.
' The first judgment of this Court which needs consideration is in the case of Shah Wali v. Ghulam Din alias Gaman and another (PLD 1966 SC 983), which was decided by a Bench of five learned Judges headed by A.R. Cornelius, C.J. In the above report leading opinion was rendered by SA: Rahman, J. But A.R. Cornelius, C.J. And Hamoodur Rahman, J. While agreeing with the conclusion arrived at by SA. Rahman, J. Appended their separate notes. The brief facts of the case were that respondent No, 1 (Ghulam Din) filed a suit for pre-empting the sale of 6 Kanals and 4 Marlas of agricultural land. The suit was decreed by the trial Court on 21-2-1961 and a decree was granted to respondent No, 1 plaintiff subject to the condition that he had deposited in Court on or before 31-3- 1961 a sum of Rs,3,000 on account of preemption money including 1/5th already deposited by him under section 22 of the Punjab Pre-emption Act. It was also provided that failing completion of the above deposit by the due date, the suit was to stand dismissed with costs. Against the above judgment, the appellant/vendee filed an appeal, which was allowed and whereby the pre-emption money was enhanced to Rs,8,000 which was directed to be deposited within one month of the appellate decree dated 30-3-1962. Thereupon, respondent No, 1 plaintiff filed a second appeal in the High Court, which was treated as a revision owing to an amendment in the relevant law and the same was dismissed in limine on 9-10-1962. It appears that before 30-4-1962 which was the last date for deposit of the balance of preemption money as per above appellate judgment dated 30-3-1962, respondent No, 1 had deposited a total sum of Rs,7,076.25. Respondent No, 1 plaintiff also held a mortgage over the suit land to the extent of Rs,800 which he was entitled to deduct out of money to be deposited by him. It appears that even after including the above mortgage money of Rs,800 there was shortfall of Rs,123.75.
' On 22-5-1962 the appellant/vendee filed an application before the trial Court pointing out that in view of the above shortfall in the deposit of the pre-emption money, respondent No, l's suit was to be dismissed with effect from 30-4-1962. He also prayed for the costs out of the pre-emption money deposited in the Court. The trial Judge granted the above application and held that the suit stood dismissed and also granted Rs,5 as the costs to the appellant/vendee. Respondent No, 1 plaintiff applied for extension of time to make up the deficiency of the pre-emption money to the trial Court under sections 47 and 48 of C.P.C. But the learned trial Court dismissed the above application on 31-11-1963. Respondent No, 1 plaintiff filed an appeal against the above order, which was allowed by the learned District Judge, Jhelum, through his order dated 18-4-1963. He held that the suit of the appellant/vendee did not stand dismissed and ordered the deposit of the above balance of Rs,123.75 on or before 2-5-1963. The appellant/vendee challenged the aforesaid order by a revision petition in the erstwhile High Court of West Pakistan. The above revision was treated as a second appeal in view of West Pakistan Ordinance XLIV of 1962 but the same was dismissed by the learned Chief Justice by his order dated 5-9-1963. Leave to appeal was granted against the above order in view of the conflicting decisions in the High Court on the question, as to whether extension of time could be granted to a successful preemptor on appeal against an order of refusal to extend the time when the original decree was not under appeal. SA. Rahman, J. In his opinion held that since no appeal against the original pre-emption decree was pending before the District Judge, Jhelum, he was not competent to allow extension of time for the deposit of pre- emption money against the order of refusal of the trial Court to extend the time after , the matter was finally adjudicated upon earlier by the District Judge. It was also held that the order of the learned trial Judge to extend the time to deposit the pre-emption money was not appealable. It may be pertinent to reproduce the concluding part of the above opinion, which reads as follows:-- "After giving my full consideration to the facts and circumstances of the case, I have reached the conclusion that for the respondent's default in making payment of the correct amount within the time fixed by the appellate decree, his suit stood dismissed and there was no question of extension of the time involved, either by the original Court or by the appellate Court thereafter, the appeal or revision from the appellate decree having already been dismissed. I would, therefore, allow the appeal, set aside the order passed by the High Court, and hold that the respondent's suit stands dismissed, in terms of the decree of the Court of appeal. The appellant should have his costs in this Court and the Courts below."
' Cornelius, C.J. While agreeing with SA. Rahman, J.'s opinion inter alia observed as follows:- "It is conceivable that had a prayer in respect of this matter been raised before the High Court between the time that the second appeal was filed and the date 9th October 1962, when it came up for hearing, the High Court may within its powers, as appearing from the authorities cited, have granted relief by way of extension of time. But with the dismissal in limine, the situation developed that the High Court never became seized of the appeal and those powers did not fall to be exercised, nor could it be said that the order of the trial Court dismissing the suit was, in the circumstances, made in disregard of the superior jurisdiction of the High Court. There being in fact a shortfall, the condition that the suit would stand dismissed on the 30th April 1962, if the amount fixed by the District Judge was not duly deposited, came into operation, and although it may be regretted that a just claim which had been duly established was thus brought to a nullity, yet the claim being one for pre-emption, it is susceptible of being avoided for a technical fault."
' Cornelius, C.J. Also adversely commented upon the correctness of the view found favour with the Lahore High Court in the case of Sukhram Das v. Nazar Muhammad (ILR 6 Lah. 316), in which it was held that the pre-emption suit was liable to be dismissed for failure on the part of the pre-emptor to comply with the condition regarding payment of the pre-emption money contained in the decree dated 22-3-1916 of the trial Court, though the matter remained under litigation inasmuch as the vendee's first appeal was allowed and the pre-emption decree was set aside. In second appeal, the High Court restored trial Court's pre-emption decree through a judgment dated 2-2- 1920, but the time for the deposit of the pre-emption money was not fixed by the High Court. The pre-emptor deposited the same on 26-2-1920, which was found not in terms of the trial, Court's decree by the High Court, in the above report. Cornelius, C.J. Highlighted the various courses which were open to the pre-emptor/decree-holder in the facts of the above case as under:- "Speaking with respect, that is a conclusion with which I find myself unable to agree. The matter may have been corrected by obtaining from the High Court an order supplementing its appellate decree of the 2nd February 1920, by fixing a date for deposit of the pre-emption money.
Alternatively, the rule of "reasonable time," laid down in the Nagpur case, cited above, may have been applied. If power could not be derived from any other source, I conceive that under section 151, Civil Procedure Code, the High Court would have been competent to make such an order as would not only advance the justice of the case, but also have the effect of giving validity to the High Court's own decree of the 2nd February 1920."
' Hamoodur Rahman, J. In his opinion referred to the various views of the High Court on the above controversy and pointed out that one view is that the time mentioned in the original pre-emption decree remained unchanged even if the appellate decree supersedes the decree under appeal as was held in the case of Sukhram Das v. Nazar Muhammad (Supra). He then referred to the second view, namely, that if the appellate decree is the only executable decree and it fixes no period for depositing the pre-emption money, the appellate decree must be deemed to have incorporated the terms of the decree appealed from with the difference that the period fixed will run from the date of the appellate decree as was held in the case of Rup Chand and others v. Shams-ul-Jehan (ILR 11 Allahabad 346). Finally he referred to the third view i,e. In the absence of any time fixed by the appellate Court for deposit of the pre-emption money, the same may be made within reasonable time from the date of the appellate decree as was held in the case of Guptar Tewari v. Debi Soran Tewari (AIR 1914 Allahabad 48) and the case of Kissan Dewaloo Mali v. Ganga Bai (AIR 1939 Nag.
279). After having referred to the above three views, he concluded as under:-- "Neither the first nor the second nor the last view appear to be based upon sound principles. If the first view prevails then the right of appeal would be rendered illusory unless the deposit has been made even if the pre-emptor is appealing against the quantum of the pre-emtion money or the reasonableness of the period fixed. The second view is on its face inconsistent, for, if the appellate decree has incorporated within it the terms of the decree appealed from how can the starting point of the period be deemed to have been varied by implication. The adoption of the last view would be clearly in disregard of the provision of Order XX, rule 14, Civil Procedure Code. In the circumstances, I would agree with my Lord the Chief Justice that the third view which appears to be more in consonance with reason and justice should be preferred so that inconsistencies are avoided and a successful pre-emptor is not deprived of the fruits of his decree unreasonably."
7. Next judgment which needs to be mentioned is in the case of Bhai Khan v. Allah Bakhsh and another (1986 SCM R 849), in which a Bench of four learned Judges of this Court, after referring the case-law, held as follows:-- "The rule deducible from the decisions of this Court appears to be that an appellate Court can extend the time for deposit of the pre-emption amount both during the pendency of the appeal before it as well as when it dismisses the appeal. Thus, the view of the learned District Judge that he had no power to extend the time for deposit of the preemption amount as the time given by the trial Court in its judgment, had expired, was erroneous. However, the High Court, in its judgment, did not accept the above view of the District Judge. On the contrary, it held that though it had the power to extend the time but that it was not disposed to do so in view of the facts and circumstances of this case, namely, that the appellant was guilty of gross negligence in not bringing his stay application to the notice of the learned District Judge and had mala fide contested the point of deficiency in the court-fee in order to prolong the appeal and thus to gain time. It was on account of these circumstances that the appellant was found disentitled to the exercise of the discretion for extension of time in his favour and not on the ground that the Court had no power to do so."
' The judgment was rendered by Nasim Hasan Shah, J. (as he then was).
8. Next case which may be mentioned is the case of Nazir Ahmad v. G hulama and another (1987 SCM R 1704), which was decided by a Bench of five learned Judges headed by Muhammad Haleem, C.J. The judgment was rendered by Muhammad Haleem, C.J. Leave to appeal was granted to consider: "firstly, whether the High Court was correct in holding that the appellant had waived his objection as to the non-deposit of the balance of the amount under the decree dated 25th of May, 1967 within time by his subsequent conduct in having consented to the passing of the compromise decree by the appellate Court on 17-10-1967, and, secondly that as the suit stood dismissed on 25-5-1967, the appeal had automatically abated and consequently the Additional District Judge had no jurisdiction to record a compromise and pass a decree on that basis." The following was concluded:- "To hold that if the amount, during the pendency of the appeal, was not deposited, the same became invalid as the suit stood dismissed, cannot be regarded as a valid proposition as an appeal is a continuation of the suit and the appellate Court has power in appeal to extend the time for depositing the pre-emption money in which event the original decree is varied to that extent. In Khurshid Akbar v. Manzur Ahmad (1982 SCM R 824), this Court observed: ' A perusal of the judgments relied upon before us shows that the view expressed in the recent pronouncements of this Court is that the time for payment of the balance pre-emption amount can be extended by the Appellate Court by an interim order passed during the pendency of the appeal or while dismissing it and that even this Court can do so pending the hearing and disposal of a petition for leave to appeal filed before it. In all these cases, however, the rule of 'reasonable time' will apply'."
9. The case of Ghulam Haider and others v. Mst. Raj Bharri and others (PLD 1988 SC 20) was also decided by a Bench of five learned Judges of this Court headed by Muhammad Haleem, C.J. The opinion was rendered by Zaffar Hussain Mirza, J., in which a review petition was allowed and the judgment of the Court rendered in the appeal was recalled as it was founded on the assumption that the suit stood dismissed on account of failure on the part of the pre-emptor to deposit the pre-emption money in terms of the original decree. The brief facts were that Ghulam Rasool and others sold their agricultural land to Mst. Raj Bharri and three others for Rs,12,000. Ghulam Haider pre-empted the sale through a suit on the ground that he was a superior right-holder as a co- sharer in the same Khata but his contention was that the sale consideration was only Rs,6,000 and not Rs,12,000 as was shown in the mutation. The trial Court decreed the suit holding the sale consideration to be Rs,7,215 and directed the plaintiff/pre-emptor to deposit this money by 22-6- 1965 failing which the suit was directed to stand dismissed. In appeal filed by the vendee the appellate Court enhanced the sale price to Rs,12,000 but dismissed the appeal in all other respects and ordered the pre-emptor/plaintiff to deposit the amount by 30-4-1966. Being dissatisfied with the enhancement of the sale price, the plaintiff filed a second appeal in the High Court and a stay against the deposit of pre-emption money in excess of Rs,7,215 was granted by the High Court on 28-4-1966. While the above appeal was pending, Ghulam Haider, the plaintiff/appellant, died on 1- 10-1966. However, no application for bringing legal heirs on record was made within time but was presented on 8-4-1969 with an application under section 5 of the Limitation Act. The same was dismissed by the learned Judge in Chambers. The application for deposit of the pre-emption money was also dismissed. Against the above order of the learned Judge in Chambers, a petition for leave to appeal was filed in this Court alongwith an application for stay, which was granted as under:-- "Status quo shall be maintained during the pendency of this petition, provided the petitioners deposit the full price as decreed by the Additional District Judge, Gujrat, by or before the 2nd of February, 1973."
' It appears that the legal representatives of Ghulam Haider plaintiff deposited the pre-emption money in terms of the above order of this Court dated 2-1-1973. However, the appeal was eventually dismissed. Thereupon, a review petition was filed, which was allowed for the following reason:- "In view of the facts brought to our notice we have, as stated before, come to the conclusion that the decree passed in favour of the petitioners is fully effective and unaffected by the decision of the appeal by this Court. The legal position arising out of the facts enumerated in this order, is fully consistent with the above-cited portion of the judgment. The balance of the sale price having been deposited by the decree-holder in accordance with the order of the Court, the title passed to them as the successful pre-emptors under Order XX, Rule 14(1)(a) of the C.P.C. While therefore maintaining the final decision of the appeal, we hold that the suit of the petitioners stands decreed in their favour with the enhanced sale price of Rs,12,000. The balance of decretal amount lying in this Court shall be dealt in accordance with law and in terms of the decree passed by the first appellate Court."
10. From the above-referred case, inter alia, it is evident that the consistent view of this Court is that an appellate Court is competent to extend time for deposit of the pre-emption money either during the pendency of an appeal before it or at the time of disposing of the same notwithstanding that the time mentioned in the pre-emption decree for the said purposes may have expired.
Furthermore, an appellate Court may extend time for the above purpose at the stage when an appeal is not admitted for regular hearing by it or a petition for leave to appeal is not granted and such an extension of time will not be nullified by the factum that the appeal or the petition for leave to appeal is subsequently dismissed summarily However, neither a trial Court nor an appellate Court can extend time for deposit of pre-emption money once the matter stands disposed of and it is no longer pending before it. In such an event, the direction contained in the original decree to the effect that in case of failure to deposit the pre-emption money the suit - shall stand dismissed, becomes effective. However, the above rule seems to be subject to one exception, namely, that if an appellate Court varies the finding of the Court below on the quantum of the pre-emption money, in other words it either increases or reduces the same, in that event, it should fix fresh reasonable time for deposit of the pre-emption money and in the absence of any such fixation, the pre-emptor may deposit the same within reasonable time as has been held by Cornelius, C.J. And Hamoodur Rahman, J. In the case of Shah Wail v. Ghulam Din alias Gaman and another (supra). It is also evident from the above reports that an appellate Court is not bound to grant extension of time in every case. The conduct on the part of a pre-emptor may disentitle him from pressing into service exercise of the above discretionary power by an appellate Court in his favour. It may be observed that it is difficult to categorize all the cases in which a pre-emptor will not be entitled to seek exercise of the above discretionary power in his favour by an appellate Court. It will depend on the facts of each case. If the sole object of a preemptor in filing of an appeal is to delay deposit of the pre-emption money, about the correctness of which, there cannot be any reasonable doubt, to a reasonable man, in such a case an appellate Court may decline to extend the time.
11. It may be stated that the view taken in the above cases has been reiterated by this Court inter alia in the case of Hakim Ali and another v. Iftikhar Ahmed Khan (1990 SCM R 1571) and in the case of Muhammad Irshad v. Ch. Fazal Haq and 5 others (1991 SCM R 2149).
12. Reverting to the facts of the present case, it may again be pointed out that the learned Additional District Judge while allowing the appellants' above civil appeal on 20-6-1991 extended the time for deposit of the pre-emption money by 26-12-1985. The appellants' application for stay of the pre-emption decree as to the deposit of the pre-emption money was filed on 30-4-1984 i,e.
On the date when the above Civil Appeal No, 106 of 1984 was filed by the appellants. The above application remained pending till 20-6-1991 when it was granted in the aforesaid terms. However, Mirza Anwar Baig, learned counsel appearing for respondent No, 2, submitted that in terms of the trial Court's decree dated 31-3-1984, the pre-emptor was to deposit the pre-emption money before 30-4-1984 and, therefore, the above stay application was filed by the appellants on 30-4-1984 i,e.
After the expiry of the time allowed by the trial Court. In our view, this does not affect the power of the appellate Court to extend the time as enunciated in the above-cited cases.
13. Adverting to the judgment appealed from, it may be pointed out that the learned Judge in Chambers was seized of the matter in exercise of his revisional jurisdiction and not appellate jurisdiction. In this regard, it may be mentioned that it is a well-settled proposition of law that a revisional Court cannot interfere with the exercise of discretion by a competent Court unless such exercise of discretion is arbitrary, fanciful and whimsical, and can be brought within the ambit of section 115, C.P.C. Which confers revisional jurisdiction on the High Court in the matters in which a subordinate Court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in exercise of jurisdiction illegally or with material irregularity. It may be observed that no reliable evidence was brought on record by respondents Nos. 1 and 2 to show that on 10-12-1975 when Muhammad Arif sold the suit land to respondent No, 1, the market value was Rs,20,000. There is a bare statement of respondent No, 1 on record without any supporting evidence. In this view of the matter, it cannot be said that the plea of the pre-emptor Muhammad Jee that the price of the suit land was in fact Rs,9,500 which amount was paid before the Sub-Registrar at the time of registration of the sale deed and not Rs,20,000 which were mentioned in the sale deed, was actuated with mala fide intention, nor the factum that the suit land was sold after about 8-1/2 months by respondent No, 1 to respondent No,2 for a sum of Rs,36,000 could be a basis for inferring lack of bona fide on the part of the pre-emptor Muhammad Jee. Similarly the fact that after expiry of nearly five years from the date of original sale, the pre- emptor sold the suit land on 21-5-1980 to aforesaid Hakeem Muhammad Fayyaz and his wife for a sum of Rs,1,00,000 would be sufficient to prove the fact that on 10-12-1975 the market price of the suit land was Rs,20,000 or that factually Rs,20,000 were paid by respondent No, 1 to Muhammad Arif.
The learned Judge in Chambers has taken into consideration the above facts for the purpose of concluding that there was lack of good faith on the part of the pre-emptor, which warranted refusal on the part of the appellate Court to exercise its discretionary power in his favour to extend time for deposit of the pre-emption money. The above conclusion in our view, is not sustainable as the same is founded on the above facts which have no direct nexus with the suit transaction. It may be observed that in order to disentitle a pre-emptor to seek discretionary power of an appellate Court to extend time for deposit of the pre-emption money, bad faith on his part should be relatable to his dealings/conduct with the vendee/preemptee and should not pertain to a transaction with a third person. It may further be observed that the learned counsel for the pre- emptor had conceded before the High Court the sale price of the suit land as Rs,20,000 on 27-2- 1991 i,e. After about six years from the date he had already deposited the preemption money. If he would have conceded this before the above deposit and then he would not have deposited the pre-emption money, one could urge that there was no justification for the appellate Court to have extended the time.
14. Additionally, it cannot be urged that the exercise of discretion by the learned appellate Court by granting above extension of time for deposit of the pre-emption money was arbitrary, fanciful or whimsical warranting interference by the revisional Court. The view taken by the learned appellate Court can be one of the views in the matter though it might not be correct.
15. We are, therefore, of the view that the learned Judge in Chambers was not justified in interfering with the order of the learned Additional District Judge in exercise of his revisional jurisdiction. The appeal is, therefore, allowed, the judgment under appeal is set aside and the above judgment dated 20-6-1991 of the learned Additional District Judge is restored.
16. Before parting with the above discussion, it may be pertinent to mention that the appellants had not impleaded aforesaid Hakeem Muhammad Fayyaz and his wife in the above proceedings though they had acquired interest in the subject-matter by virtue of the above sale transaction concluded in May, 1980. It will suffice to observe that by this judgment their rights will not be prejudiced or affected against the legal representatives of pre-emptor, Muhammad Jee.
17. The above appeal stands disposed of in the above terms. However, there will be no order as to costs.
(Sd.)
Ajmad Mian, J.
(Sd.)
Fazal Ilahi Khan, J.
' I have written separate note.
(Sd.)
Fazal Karim, J.
' FAZAL KARIM, J.---I have read the judgment proposed to be delivered by my learned brother, Ajmal Mian, J. But have the misfortune of differing with him. I, therefore, proceed to record my reasons. This I do with great deal of diffidence, which is due, not to any doubt in my mind as to the correctness of the view that I propose to take, but to the great respect that I have for my learned brother's learning.
2. The facts have been fully stated by my learned brother and I gratefully adopt them, with one minor exception, namely, that the learned Additional District Judge, Islamabad, did not, as has been observed by my learned brother, 'allow' the appeal of the legal representatives of the original plaintiff, Muhammad Jee (they are now the appellants herein and will be so described in this judgment) by his judgment dated 20-6-1991. What had happened was that the trial Court had, by its judgment of the date 31-3-1984, decreed the appellants' suit on payment of Rs,20,000 and directed that the balance of the pre-emption money should be deposited before 30-4-1984. The appellants preferred an appeal on 30-4-1984 against the trial Court's decree only in so far as it fixed the pre-emption money at Rs,20,000. The defendants filed cross-objections and invited the District Court to dismiss the suit among others on the ground that the suit was barred by time because Mst. Bushra Khanam had been joined as a defendant after the expiry of the period of limitation. The then learned Additional District Judge dismissed the appellants' appeal and accepted the defendants' cross-objections and holding that the appellants' suit was barred by time, dismissed it. The appellants filed a revision petition in the High Court and the. High Court, holding that the suit was not barred by time, sent the appeal back to the learned District Judge for the decision of the appellants' appeal and the defendants' cross-objections afresh. It is of some significance to note that when the appellants' revision petition was pending in the High Court, they had agreed to pay Rs,20,000 as the pre-emption money. So after remand, as regards the appellants' appeal, nothing remained to be decided by the District Court; in the words of the learned Additional District Judge, "as the learned counsel as per instructions from his client namely the appellants were ready to accept Rs,20,000 as price of the land, thus nothing was left to agitate on behalf of the .Appellants Muhammad Nawaz etc." All that remained to be decided by the learned Additional District Judge, therefore, were the cross-objections of the defendants. By his judgment dated 20-6-1991 the learned Additional District Judge dismissed the defendants' cross- objections with costs. As regards the appellants' appeal, the learned Additional District Judge relying upon "Bhai Khan v. Allah Bakhsh" (1986 SCM R 849), held that "the deposit made subsequently by the appellants of the decretal amount is held to be well within reasonable time and the extension till the said date of deposit i,e. 26-12-1985 is to be deemed as having been granted by this Court in view of peculiar circumstances of this case" and that-- "....The appeal made by Muhammad Nawaz is disposed of accordingly in the light of the above observations by holding the impugned decree and judgment of the trial Court to remain intact and no order is made for deposit of decretal amount as the appellants had already made such deposit and the delay in making such a deposit is condoned by extending the required time as detailed above."
3. The rule deducible from the decisions of this Court namely Khurshid Akbar's case (1982 SCM R 824), and Dost Muhammad's case (1984 SCM R 325), as was observed in "Bhai Khan v. Allah Bakhsh"s case (1986 SCM R 849), is "that an appellate Court can extend the time for deposit of the pre-emption amount both during the pendency of the appeal before it as well as when it dismisses the appeal". Therefore, the question is not whether the appellate Court had or had not the power to extend the time; it is of the application of judicial discretion to the facts of this case. That this is the real question should be clear from the following clarification by this Court in 'Bhai Khan's case, at page 852:-- "....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 case, such as the present, refuse to exercise its discretion in his favour."
4. This was, it is to be noted, an answer to the contention that in view of this Court's judgment in Khurshid Akbar case, 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.
5. The very concept of 'discretion' means a right to choose between more I G than one possible course of action, "Secretary v. Tameside" B.C. (1977 AC 1014, 1064, 1065). 'Judicial discretion' means the power the law gives the Judge to choose among several alternatives, each of them being lawful. (See "Judicial Discretion" by Aharon Barak, P. 7). As was said in a recent case decided by the H House of Lords of England, "Mac Shannon v. Rockware Glass (1978) 1 All E.R. 625, 631, 632, when the question is of the application of judicial discretion to the facts of the particular case, the Judge in his consideration of the facts should not wear blinkers and that "if justice is to be seen to be done, the discretion which will fall to be exercised by different Judges in different cases must manifest a reasonable consistency between one case and another".
6. As has been observed by my learned brother Ajmal Mian, J. It is indeed a well-settled proposition of law "that a revisional Court cannot interfere with the exercise of discretion by a competent Court unless such exercise of discretion is arbitrary, fanciful and whimsical, and can be brought within he ambit of section 115, C.P.C. Which confers revisional jurisdiction on the High Court in the matters in which a subordinate Court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in exercise of jurisdiction illegally or with material irregularity". But as this Court held in "Muhammad Hussain v. Sikandar" (PLD 1974 SC 139), the High Court's power of judicial review under Article 199 of the Constitution is assimilable to its jurisdiction under section 115, C.P.C. Except in two important respects which are not relevant here. In the field of judicial review, abuse or excess of power is a well-recognised ground for intervention. A person entrusted with discretion must direct himself properly in law; he must call his own attention to the matters which he is bound to consider; he must exclude from his consideration matters which are irrelevant to the matter that he has to consider. If he does not obey those rules, then his action will be abuse of power or in excess of power and, therefore, without lawful authority. In the language of section 115 of the Code of Civil Procedure, an order which falls foul of those rules will be K illegal.
7. I respectfully agree with my learned brother, Ajmal Mian, J., that "it is difficult to categorize all the cases in which a pre-emptor will not be entitled to seek exercise of the above discretionary power in his favour by an appellate Court. It will depend on the facts of each case". But decided cases provide sufficient guidance as to the matters which entitle a party to the exercise of judicial discretion in his favour and matters which disentitle him. To begin with, in deciding how the discretion should be exercised, it is a very relevant fact that the right with which we are dealing is a right of pre-emption. As was observed in "Faqir Ahmad v. Arshad Ahmad" (PLD 1984 SC 403) "There is no dearth of cases, in actual practice, where the pre-emptors are close relatives of the vendors themselves and knew all about the transaction while it took place, but did not come forward to purchase it at that time. They allow another person to purchase it; wait for the whole year and then, on the last date of the period of limitation, they suddenly spring a surprise on him by filing a suit for pre-emption with the object to obtain the property in question at a nominal price, because it is expected that the case shall be decided after many years, by which time price of the land shall have been enhanced manifold and the price that he would be required to pay shall be the one prevailing at the time of transaction". Then, though the right of pre-emption is a right as any other right is, yet the law looks upon it with such suspicion that, as was noticed in Shah Wali case, it insists, as a token of good faith of the pre-emptor, that he deposits 1/5th of the pre-emption money as security. This, as was held by Mr. S.A. Rahman "is a significance pointer to the policy of the law of pre-emption". Bhai Khan case itself provides at least two guiding principles, which mus be kept in mind in the exercise of judicial discretion. To understand those principles, it is necessary to have the flavour of its facts. The suit of Bhai Khan plaintiff was decreed by the trial Court's judgment dated 24-11-1974 on payment of Rs,41,000 to be deposited by 14-12-1974. The plaintiff preferred an appeal well before the expiry of the period within which the deposit was to be made; the only ground of challenge being that the sale price had been wrongly fixed at Rs,41,000. On 13-12-1972 execution of the decree was stayed till 14-2-1973. The appeal came on for hearing on 14-2-1973 but was not heard. However, on that date, no further order staying the execution of the decree was made. On 4-11-1975 Bhai Khan withdrew the appeal but prayed for the extension of the time for the deposit of the pre-emption money. The District Judge dismissed the appeal as withdrawn but did not extend the time for the deposit of the pre-emption money on the erroneous view that he had no power to extend the time. The plaintiff approached the High Court and though the High Court did not accept the District Judge's view that he had no power to extend the time, yet it dismissed the appeal holding "that though it had the power to extend the time but that it was not disposed to do so in view of the facts and circumstances of this case, namely, that the appellant was guilty of gross negligence in not bringing his stay application to the notice of the learned District Judge and had mala fide contested the point of deficiency in the court-fee in order to prolong the appeal and thus to gain time". In the view of the High Court, therefore, the plaintiff was not entitled to the exercise of the Court's discretion in his favour. When the matter came to this Court, the High Court's view was affirmed and it was held that it was ".... Not in the interest of justice to have extended time in favour of the preemptor in this case for depositing the pre-emption amount". The rules which emerge from Bhai Khan case are (1) that where the plaintiff has been guilty of negligence in the prosecution of the suit or an application such as an application for staying the execution of the decree, and (2) that when he has contested a point mala fide in order to prolong the litigation and to gain time, he will not be entitled to the exercise of the judicial discretion in his favour.
8. The stage is now set for a comparison of the matters which the learned Additional District Judge took into account in exercising his discretion in favour of the appellants with those which, in the view of the learned Judge in the High Court, justified a different conclusion, and to determine whether the learned Judge in the High Court was right in reaching the conclusion that he did.
9. The learned Additional District Judge noticed that while decreeing the suit by its judgment of the date 31-3-1984, the trial Court had directed the preemption money to be paid before 30-4-1984; that the appellants preferred their appeal on 30-4-1984, that on that very date they made an application under Order 39, Rules 1 and 2 and section 151 of the C.F.C. Praying that the period of deposit be extended till the decision of the appeal and the trial Court's decree to that extent be stayed; that the then learned Additional District Judge had made an order on 30-4-1984 "to the effect that as the period required for depositing of decretal amount has already elapsed, thus the said application could not be disposed of in absence of respondents, therefore, a notice go to them", that no order was passed by the then learned Additional District Judge on that application; that the appeal was finally dismissed on 22-9-1985 "by holding the suit to be time-barred for non- impleading of Mst. Bushra Khanam (within limitation period), meaning thereby, the said application which was promptly made by the appellants remained undisposed of that the appellants deposited the balance of decretal amount on 26-12-1985 and that that application having been made promptly and having remained undisposed of by the appellate Court, the deposit made by the appellants on 26-12-1985 should be, so held the learned Additional District Judge, treated "to be well within reasonable time".
10. Thus the only ground which in the view of the learned Additional District Judge entitled the appellants to the exercise of his discretion in their favour was that they had made the application for the suspension of the trial Court's decree "promptly" on 30-4-1984 and that application had remained undisposed of during the pendency of the appeal till 22-9-1985.
11. The learned Judge in the High Court dealt with the matter of discretion in the following manner.
"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 pass an order which would be in the circumstances of the case in consonance with justice and in accordance with law".
After referring to Bhai Khan case, the learned Judge in the High Court went on to say 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". With this preface the learned Judge in the High Court proceeded to observe that "the case under consideration was a clear example of the pre-emptor trying to gain an unfair advantage in litigation". He noticed that in the first round the original plaintiff succeeded to get an ex parte decree for Rs,9,500 and deposited that amount within the time fixed in the ex parte decree.
But then having so obtained the land he sold it for a large sum of Rs,1,00,000 out of which Rs,95,000 were paid before the Sub-Registrar. In his view the original plaintiff "would have acted wiser to deposit the decretal amount in time fixed in the decree made on 31-3-1984". Yet he went in appeal for the reduction of the sale price, and applied for the period of deposit being extended, after expiry of the period fixed in the decree of the trial Court" and deposited the pre-emption money on 26-12- 1985 "on their own" and after the pre-emption suit had been dismissed by the then Additional District. Judge's judgment dated 22-9-1985, when there was no "existing executable decree" in their favour. It could, in the opinion of the learned Judge, be easily inferred from the "surrounding circumstances" that the appellants were "unnecessarily prolonging the litigation for some undisclosed reasons". They conceded the full price on 27-2-1991 before the High Court without disclosing that they had already deposited the sum of Rs,20,000 on 26-12-1985. The learned Judge in the High Court also thought it proper to notice that though the land had been sold for Rs,20,000 in the year 1975, yet the original plaintiff Muhammad Jee had himself sold it in May, 1980 for Rs,1,00,000 which was "a clear pointer" of the market value of the land yet he persisted in further litigation. The fact that Muhammad Jee had sold the land in May, 1980 was in the opinion of the learned Judge, "manifestive of absence of a 'Zaroorat' or avoidance of 'Zarar' ".
12. The above comparison of the matters which the learned Additional District Judge and the learned Judge in the High Court had taken into account, by the former for exercising his discretion in the appellants' favour and by the latter for reaching a contrary conclusion, shows, and shows clearly, that the learned Additional District Judge was content to consider only one ground namely that the appellants had made an application for the stay of the trial Court's decree "promptly' on 30-4-1984 and that application had remained undisposed of till the decision of the appeal and the cross-objections by the then learned Additional District Judge's judgment dated 22-9-1985. In so holding, the learned Additional District Judge assumed, and in view of the rules laid down in Bhai Khan case must be held to have assumed wrongly, that the mere making of the application on 30- 4-1984 was sufficient, that it was the duty of the Court to make an order on that application and that the fact that that application had remained undisposed of was by itself sufficient to entitle the appellants to the grant of extension. This was not only a wrong assumption on a matter of law, but also involved the ignoring of a number of other important matters. As was observed by A.R.
Cornelius, Chief Justice in Shah Wali case "the suit was one for pre-emption, a right for the vindication of which it is permissible to require a pre-emptor to comply with the strict requirements of the law and of the orders made by the Courts in the suit. The price of default is merely that the status quo ante the suit remains undisturbed". In the words of SA. Rahman, J., in the same case "it is well settled that the operation of a decree, passed by a Court of first instance is not automatically suspended, on the mere filing of an appeal therefrom", and that 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 if 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". It is also important to note that the appellants could challenge the trial Court's decree dated 31-3-1984 also on the ground that the time fixed for the deposit of the pre-emption money was too short. The memorandum of appeal however shows that this was not a ground of challenge. However that may be the view of the learned Additional District Judge that the making of the application for suspending the decree dated 31-3-1984 and that it had remained undisposed of during the pendency of the appeal justified the grant of time was plainly contrary to the law enunciated in Bhai Khan case. It will be recalled that for the exercise of discretion in the plaintiff's favour the facts of Bhai Khan case were much stronger than the facts of this case. As has been noticed above, there, the plaintiff had preferred the appeal against the trial Court's decree when the time for the deposit granted by the trial Court had not yet expired; in fact the order for staying the operation of the trial Court's decree had been made before the expiry of that period. Yet what was held to amount to "gross negligence" was the fact that the plaintiff had failed to bring to the notice of the appellate Court that no order on his stay application had been made on 14-2-1973. Another remarkable feature of that case was that according to the law laid down in Khurshid Akbar case namely that "the time for payment of the balance pre-emption money can be extended by the appellate Court by an interim order passed during the pendency of the appeal or while dismissing it", and that the rule of reasonable time, which means, "the time still available for making deposit on the day when the appellate Court suspended the decree", applied, the plaintiff there could justifiably claim that he should have been allowed "reasonable time" i,e. At least the time that still remained available to him for making the deposit when the appellate Court had suspended the decree. Yet he was held not entitled to the discretion of the Court because of his "gross negligence" which was that he had failed to bring to the notice of the Court that no order on his stay application had been made. It needs to be emphasized that the expression "reasonable time" has assumed, in the context of the pre-emption law, a technical sense namely the sense attributed to it in Khurshid Akbar case. In this case the appellants were required to deposit the pre-emption money before 30-4-1984. They did not comply with that direction. They preferred the appeal on 30-4-1984, when the time for deposit had already expired. In the facts of this case, therefore, the rule of "reasonable time" in the sense in which it was used in Khurshid Akbar case could not avail the appellants. The fact that the land situate as it is in the capital city of Islamabad had registered a sharp increase in its value with the passage of tme was also in my opinion a relevant matter for consideration. It has been seen that the market value of the land was, according to the appellants, Rs,9,500 only on 10-12-1975. (In fact according to their memo. Of appeal in the District Court its value was Rs,6,000 only). It was sold by the vendee to Mst. Bushra Khanam on 29-7-1976 for Rs,36,000. Between 1976 and 1980, there was a phenomenal increase in its price, for undisputedly, Muhammad Jee himself sold it on 21-5-1980 to Hakim Muhammad Fayyaz and his wife for as much as Rs,1,00,000. The appellants' appeal was decided by the District Court on 22-9-1985. In those five years the market price of the land must have registered further increase. The significance of this phenomena lies in this that for the land worth more than Rs,1,00,000 in 1985, the appellants would not even like to pay Rs,20,000. This aspect of the pre-emption cases, as has been noticed above, was considered in Naseer Ahmad case. I am, therefore, of the view that the matters which the learned Judge in the High Court took into consideration were all relevant matters and that their non-consideration by the learned Addl.
District Judge had entitled the learned Judge in the High Court to interfere with in the exercise of his discretion.
12. In the result I would dismiss the appeal leaving the parties to bear their own costs.
(Sd.) Fazal Karim, J.
' In view of the majority opinion, the above appeal is allowed with no order as to costs.
(Sd.) Ajmal Mian, J.
(Sd.) Fazal Ilahi Khan, J.
(Sd.) Fazal Karim, J.