' The relevant facts for the decision of this second appeal are that the respondents purchased land measuring 4 Kanals, 18 Marlas through registered sale-deed dated 7-11-1973. The appellant son of the vendor brought a suit to pre-empt the sale. The respondents contested the same. The trial Court accordingly framed following issues:--
(1) Whether the plaintiff is estopped by his conduct to file this suit?
(2) Whether the suit is for partial pre-emption? OPD
(3) Whether the suit is not maintainable? OPD
(4) Whether the plaintiff has no locus standi to file this suit? OPD
(5) Whether the sale-price of Rs,9,000 has been fixed in good faith or actually paid? OPD
(6) If issue No,5 is not proved, what is market value? O.P. Parties.
(7) Whether the plaintiff has got superior right of pre-emption over the suit land qua the defendants? OPP
(8) Relief.
' The trial Court recorded evidence and after hearing the arguments decreed the suit vide judgment dated 8-7-1975, which was assailed through an appeal in the Court of the District Judge, Gujranwala, who accepted the same vide judgment and decree dated 9-'7-1976. The plaintiff thereafter, filed the present appeal, which was admitted to hearing and notice was issued to the respondents who have entered appearance through Mr. Iftikhar Ullah Malik, Advocate and contested the appeal.
2. It is argued that the sale in favour of the respondents was not in violation of the Land Reforms Regulation. It is added that prohibition that non-owners in the estate could not purchase land less than subsisting holding was not applicable to involuntary alienations. The learned counsel in this behalf has referred to the judgments reported as Abdul Ghafoor v. Muhammad Ismail PLD 1982 SC 364, Abdul Majid v. Tora Baz Khan PLD 1975 Lahore 628, Allah Bux v. Muhammad Riaz PLD 1974 Lahore 268 and Ghulam Mehr v. Chief Land Commissioner, Punjab, Lahore PLD 1974 Lah.
520. It is added that the Land Reforms were amended fustly by Ordinance XX of 1976 which was exceeded by Act XLVIII of 1976. According to para. 24, clause (d) the decrees already obtained in pre-emption suits were not to be affected by the Land Reforms Regulation, therefore, the decree in favour of the appellant was saved. It is argued that the relevant paras. Of the Land Reforms Regulation have since been declared against the Injunctions of Islam, therefore, the controversy as to the legality of sale in favour of the respondents and pre-emption suit by the appellant was beyond the controversy over and no longer relevant. In this behalf reliance is placed on the cases reported as Sajwara and others v. Federal Government of Pakistan PLD 1989 Federal Shariat Court 80 and Haji Muhammad Anwar V. Government of Pakistan 1994 SCMR 899. In the end it is argued that the Land Reforms Regulation does not apply to the pre-emptors because it is right of substitution and not voluntary sale between two panties. The learned counsel in this behalf referred to the cases reported as Abdul Ghafoor (supra), Ghulam Mehr (supra) Allah Bakhsh (supra) and Abdul Majid (supra).
3. On the other hand, the learned counsel for the respondents argued that the appeal was filed on 22-11-1976 and was barred by two days. The same was returned with some objections with a direction to refile within 7 days but it was ultimately filed on 6-12-1976, therefore, in all it was barred by 12 days. It is added that the appeal was not filed as directed by the office, therefore, it should be treated as barred by limitation. In this behalf the learned counsel referred to the cases reported as Ghulam Hussain v. Bahadur PLD 1954 Lahore 361. The next argument is that the appeal was not competent as it was not accompanied by the decree-sheet of the trial Court. It is added that the appellant did not lead any evidence in affirmative and he only appeared in rebuttal, therefore, issue No,7 should have been decided against him. The learned counsel in this behalf had referred to the judgment reported as Messrs Mian Brothers v. Sideman 1989 CLC 494. It is argued that the suit abated as during the pendency of the appeal the Pre-emption Act was declared against the Injunctions of Islam. In this behalf the learned counsel had referred the case reported as Rozi Khan v. Syed Karim Shah 1992 SCMR 445. It is added that the appellant did not make up the deficiency in the court-fee on the memorandum of appeal in spite of objection by the office, therefore, appeal is liable to be dismissed.
4. The learned counsel for the appellant while summing up the arguments submitted that the appeal was not barred by limitation by two days when filed on 22-11-1976 because 21-11-1976 was Sunday and the Court was close as Sunday used to be holiday. It was added that although the objections were recorded by the office on 24-11-1976 but as it was a motion case, therefore, it was included in the list of objection cases which was issued weekly and not daily. The appellant accordingly collected the memorandum of appeal on 29-11-1976. The same was to be filed within seven days but the Court was close from 2-12-1976 to 4-12-1976 on account of Eid Holidays while the 5th was again week end, Sunday, therefore, the memorandum of appeal was re-filed on 6th December, 1976 and there was no delay. It was argued that according to High Court Rules and Orders Volume V, Chapter I, the memorandum of appeal returned by the office with an objection is to be presented as directed by the office and in the case in hand, the memorandum of appeal was, in fact, presented without delay as directed by the office. The learned counsel in this behalf referred to the cases reported as Ghulam Hussain v. Bahadur (supra), In re: Venkatanarasimha AIR 1933 Madras 358 and Amir Hussain Shah v. Umra and 11 others 1986 SCMR 800. It was added that the filing of certified copy of the decree of the trial Court is not necessary in the second appeal. In this behalf the learned counsel referred to rule 2 of Order XLI, C.P.C. It was, therefore, prayed that the appeal may be accepted.
5. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record and the precedent cases. I would like to deal with the objection as to the limitation first. The_ appeal as already noted, was filed in this Court on 22-11-1976. The same was returned by the office with certain objections and the appellant was allowed seven days' time to remove the objections and re-file the appeal, which was ultimately filed on 6-12-1976. It is clear from the record and the diary for 1976 that 21-11-1976 was Sunday and in those days it was weekly holiday. The appeal was, therefore, within time when filed on 22-11-1976. The appeal was filed as ordinary case and the cause list of motion cases was published weekly. The appellant accordingly came to know on 29-11-1976 that the office had raised some objections and collected the appeal.
The same could be filed up to 5th of December, 1976. It is clear from the diary that the Court was closed for Eid Holidays from 2-12-1976 to 4-12-1976 while the 5th December, 1976 was Sunday, the weekly holiday. Therefore, the memorandum of appeal re-filed on 6-12-1976 was within time.
6. It is true that the time required for removal of the objection is to be adhered to and failure to re- file the appeal, revision, application, as directed by the office would become time-barred because the time required for removal of the objection is not to be excluded while computing the period of limitation under the Limitation Act but the same is granted under Rule 4, Chapter I, High Court Rules and Orders, Volume V, read with Rule 3, Order XLI, C.P.C. Which reads as under:-- "3. Rejection or amendment of memorandum.--(1) Where the memorandum of appeal is not drawn up in the manner hereinbefore prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there.
(2) Where the Court rejects any memorandum, it shall record the reason for such rejection.
(3) Where a memorandum of appeal is amended, the Judge, or such officer as he appoints in this behalf, shall sign or initial the amendment."
While Rule 4, Chapter I, High Court Rules and Orders, Volume V reads as under:-- "4. The Deputy Registrar may return for amendment within a time to be fixed by him any memorandum of appeal for the reason specified in Order XLI, Rule 3 of the Code of Civil Procedure?
It is, therefore, clear that if the appellant fails to re-file the memorandum of appeal within the time allowed by the office the extra time taken for removal of the objection would not be excluded while computing the period of limitation. The learned counsel in this behalf referred to the judgment in the case reported as Sultan Muhammad v. Muhammad Ashraf 1991 CLC 269 and Ghulam Hussain v. Bahadur PLD 1954 Lahore 361.
7. Now coming to the other legal objection that the appeal abated as during the pendency of the appeal the Punjab Pre-emption Act, 1913 was declared against the Injunctions of Islam. Suffice it is to observe that the decrees passed up to 1st August, 1986 were saved. In this respect reference can be made to the cases reported as Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province PLD 1994 SC 1, Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360 and In re: Suo Motu Shariat Review Petition No,1-R of 1989, PLD 1990 SC 865.
8. The other legal objection is that the appellant failed to affix the proper court-fee on the appeal within the period of limitation, therefore, the memorandum of appeal was liable to be rejected under Order VII, Rule 11, C.P.C. For the failure of the appellant to pay the proper court-fee on the memorandum of appeal. The argument is without merit because before rejecting or returning the memorandum of appeal for deficiency in the court-fee the order has to be made and an opportunity provided to the appellant to make good the deficiency. This admittedly was not done, therefore, the memorandum of appeal could not be rejected for want of any deficiency in the court-fee in view of the provisions of Order XLV, Rule 3 and Order VII, Rule 11, C.P.C.
9. Now corning to the merits. The appeal was accepted and the appellant was non-suited by the first appellate Court on the ground that in view of Land Reforms Regulation he was not entitled to purchase the land, but the appellate Court while recording the above finding failed to take into consideration that M.L.R. 115 in this behalf was amended firstly through Ordinance XX which was promulgated with effect from 19-5-1976 while the appeal was decided on 9-7-1976, therefore, the decree in favour of the appellant was clearly saved. The relevant portion of Ordinance )0( of 1976 reads as under:-- "(6) Nothing in this paragraph shall apply to-- (a)
(b) "The holder of a pre-emption decree in respect of an area less than a subsistence holding; (c)
' The provisions of Ordinance became permanent part of the statute book with the enactment of Act XLVIII of 1976.
10. The first appellate Court failed to appreciate that the provisions of M.L.R.115 dealt with the voluntary sales and did not cover decree of the Court and for that reason the decree in favour of the appellant was not hit by the provisions of M.L.R.115. The learned counsel for the appellant has rightly referred to the case of Abdul Ghafoor, Abdul Majid, Allah Bakhsh and Ghulam Mehr (supra).
The appellate Court, therefore, clearly acted illegally while accepting the appeal of the respondents.
11. The upshot of the above discussion is that the judgment and decree of the first appellate Court dated 9-7-1976 is set aside by accepting this appeal with no order as to costs. The result is that the decree of the trial Court is restored.