' ABDUR REHMAN KHAN, J.---This petition assails the legality of the judgment delivered on 10-11-1997 by a learned Judge in Lahore High Court; whereby, the Regular Second Appeal filed by the petitioner impugning the correctness of the appellate Court's judgment dated 20-5-1967, was dismissed.
2. Relevant facts of the present litigation between the parties are that the petitioner brought a suit for pre-emption in respect of the suit land asserting superior right of pre-emption on the ground that he was son of the vendee. The suit was contested by defendants Nos.2 to 6 who refuted the allegations in the plaint, denied superior right of pre-emption of the plaintiff/petitioner and pleaded that the suit was collusive, time-barred, partial and insufficiently stamped. The learned trial Judge by his judgment dated 10-1-1997 decreed the suit of the petitioner in these terms:- "The result is that the plaintiff is granted a decree for constructive possession of the suit land (which stands mortgaged with defendant No,2) on his depositing on or before 10-2-1967 Rs,25,200 for defendant No,6. Any amount deposited by the plaintiff as one-fifth of the ostensible sale price shall be considered as a deposit towards the pre-emptional amount. If the plaintiff fails to deposit the amount his suit shall stand dismissed with costs. For the present the parties are left to bear their own costs."
3. Petitioner challenged this decree before the Appellate Court to the extent of sale price and mortgage as according to him the suit should have been decreed on payment of Rs,12,000 instead of Rs,25,200 and that it should not have been subjected to mortgage.
4. The Appellate Court without dilating on the merits of the case rejected the appeal on the ground that the memo. Of appeal was insufficiently stamped and made the following observation:-- "I think the non-payment of deficiency of Court fee is deliberate in the circumstances of the case. It is an appeal by the plaintiff arising out of a suit for pre-emption and no equities are involved."
' The matter was then agitated in second appeal in the High Court but the learned Judge by impugned judgment not only agreed with the Appellate Court regarding dismissal/rejection of appeal being deficiently stamped but also on the ground of failure of the appellant to deposit the pre-emption amount within time limit fixed by the trial Court, as it. Was agitated and proved before him that the order of deposit of pre-emption amount passed by the trial Court had not been complied with.
5. The learned counsel pleading for the petitioner submitted that the learned Appellate Court had erred in dismissing the appeal on the basis of deficiency in the stamps on the memo. Of appeal and that the learned Judge in the High Court was not legally justified in concurring with the Appellate Court regarding its finding on court-fee and in dismissing the appeal for noncompliance with the deposit order. He explained that the petitioner had disputed the correctness of the court- fee on genuine grounds; that he was liable to pay the court-fee on the difference of what had been determined by the Court and not what he had claimed to be. He was of the view that the conduct of the petitioner could not be described as obstinent or contumacious. He argued that the High Court should have remanded the case to the Appellate Court for determination of correct court- fee and for consequences of default in payment of pre-emption amount which in the particular circumstances of the case and particularly on the ground of minority of the petitioner could not entail dismissal of suit. He referred to Muhammad Irshad v. Ch. Fazal Haq and 5 others (1991 SCM R 2149) and Muhammad Nawaz and others v. Muhammad Sadiq and another (1995 SCM R 105) in support of his view point.
6. It is important to note that the trial Court had on 10-1-1967 directed the petitioner to deposit the outstanding pre-emption money on or before 10-2-1967. It was conceded before us by the learned counsel representing the petitioner that till today this amount has not been deposited. It was also admitted that neither in the trial Court nor in the Appellate or Revisional Courts any application for extension of time had been filed till this date. It is thus obvious that more than 30 years have so far passed to the order of deposit of pre-emption money. During all these three decades the petitioner remained dormant and negligent to comply with the order of the Court. The only excuse that was shown for inability to make payment was the minority of the petitioner. When we questioned the learned counsel about the date of birth of the petitioner, he gave it to be 1961 which means that the petitioner had become major in 1979 i.e, 18 years back which was more than sufficient to do the needful. Even otherwise, this could, hardly, be an excuse for non-deposit as this could have been done by the next friend who had instituted the suit and was pursuing it all along. The relevant part of the order of the trial Court was to this effect "If the plaintiff fails to deposit the amount his suit shall stand dismissed with costs". Keeping in view the words of this order it would take effect automatically and in case of non-deposit of the pre-emption amount the suit per force of the order shall stand dismissed. The legal position that filing of appeal would by itself not stay/suspend the operation of the judgments, stands established. Thus the decree in favour of the petitioner had become ineffective and in-operative and no appeal or revision could either be moved or entertained in such a state of record. It is interesting that no application has so far been made for extension of time and even if such an application had been moved that could not have been entertained as the Courts had become functus officio to entertain such an application. It is also provided under Order XX, Rule 4, C.P.C. That if the pre-emption money is not paid within time specified in the judgment then the suit should be dismissed. Therefore, argument from the petitioner's side that the case be remanded so that this aspect is agitated before the Appellate Court is misconceived as on account of the legal position stated above it would amount to futile exercise specially when no request for extension of time in this connection has so far been made.
The learned counsel referred to 1991 SCM R 2149 and 1995 SCM R 105 to support his stand. These judgments proceed on distinguishable facts and have no resemblance with the facts of this case.
In the former case interim relief for stay had been sought and in the latter it was held, "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 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". In any case in both these cases the conduct of the party concerned was held to be determining factor in exercise of discretion in his favour and in showing indulgence to him. In the present case we are not inclined to revert the parties to the same position which prevailed 30 years back on account of high inflation and extraordinary escalation in prices which has so far occurred and specially so when all these 30 years the petitioner has not approached any Court for extension of time for deposit of pre-emption money. Moreover, the decision of the Appellate and Revision Courts in the matter of court-fee have also gone against the petitioner on account of his conduct highlighted in these judgments, therefore, we are not inclined to enter into the factual controversy about the dispute in matter of deficiency of court-fee in all the more so when we -agree with the revisional Court in its finding of dismissal of suit for failure to comply with the order of deposit of pre-emption money. We, therefore, refused to grant leave to appeal and dismiss this petition.