1. ' SAIDUZZAMAN SIDDIQUI, J.---We intend to dispose of abovementioned 5 direct appeals filed before this Court by a consolidated judgment as they arise from a common judgment of a learned Judge in Chambers of Lahore High Court dated 27-3-1998 passed in R.S.As. Nos.3, 4, 7 and 8 of 1998.
2. ' The abovementioned appeals arise from 2 rival suits of pre-emption, filed by Babar Shehzad (appellant in Civil Appeal No,714/98) and Dilawar Khan (appellant in Civil Appeals Nos.974 to 977/98) respectively before the Civil Judge, Campbellsport (Attock) to pre-empt the sale of land measuring 29 Kanals, 15 Marlas situated in Barazai, Tehsil and District Attock (hereinafter to be referred as "the suit land") in favour of respondents in the above appeals.
3. ' Babar Shehzad in his Suit No,5 of 1975 claimed the right of preemption on the ground of being the son of one of the vendors and related to other vendors, besides being co-sharer in the suit land.
4. Dilawar Khan, the rival pre-emptor, in his Suit No,6 of 1975 claimed the right of pre-emption, being the cousin of one of the vendors and residuary of other vendors. Both the suits were consolidated by the learned trial Court and following issues were framed in the suits:-- "(1) Whether pre-emptor has got a superior right of pre-emption and to what extent?
(2) Whether sale price of Rs,3 lacs was fixed in good faith or actually paid?
(3) If not, what is the market value?
(4) Whether valuation of any suit is incorrect and with what effect?
(5) Whether Zar-e-Punjam of any suit has not been deposited in time?
(6) Whether any suit is collusive and for the benefit of the vendee?
(7) Relief."
5. ' Dilawar Khan, the pre-emptor in Suit No,6 of 1975 was directed by the trial Court to deposit (Zar-e- Punjam) 1/5th of the sale price of the suit land in Court up to 12-3-1975. It appears that before expiry of time fixed by the Court for deposit of Zar-e-Panjum, Dilawar Khan moved an application on 8-3- 1975 for extension of time granted by the Court on the ground that the money which he was to receive from abroad will be received late, If further appears that on the date the application for extension of time for deposit of Zar-e-Panjum was made by Dilawar Khan, the learned Civil Judge who was seized of the cases, was on leave and therefore, the application for extension of time to deposit Zar-e-Panjum was placed before the link-Judge, who extended the time for deposit of Zar=e=Panjum up to 27=3=1975. It is an admitted position that Dilawar Khan deposited the amount of Zar=e-Panjum on 20-3-1975 in the Court, The learned trial Court dismissed the suit filed by Reber Shehzad on the ground that the suit was collusive in nature. However, the suit filed by Dilawar was decreed by the trial Court. Against the judgment and decree passed by the trial Court two separate appeals, being Appeals Nos.97 of 1976 and 94 of 1976, were filed before the High Court by Debar Shehzad and Said Akbar Khan. These appeals were later on transferred to District Judge, Attock on account of change of pecuniary jurisdiction. The learned First Appellate Court by judgment dated 22-9-1987 reversed the finding of the trial Court that the suit instituted by Unbar Shehzad was collusive and accordingly decreed the suit filed by him. A second decree for pre- emption was also passed by the learned First Appellate Court in favour of Dilawar Khan on the condition that in case the first pre-emptor (Babar Shahzad) failed to deposit the amount, Dilawar Khan will be entitled to exercise the right of pre-emption. Against the judgment and decree of the First Appellate Court four R.S.As. Being Nos. 3, 4, 7 and 8 of 1988 were filed before the High Court.
6. R.S.As. Nos.3 and 4 of 1988 were filed by Dillawar Khan and R.S.As. Nos.7 and 8 of 1988 were preferred by Said Akbar and other respondents in the above appeals. The learned Judge in Chamber reversed the judgment and decree of the First Appellate Court holding that as no decree was passed in favour of Babar Shehzad before 30-7-1986, no decree for pre-emption could be passed in his favour in view of the law laid down by this Court in number of reported cases. The learned Judge in Chambers also reversed the second decree granted in favour of Dillawar Khan on the ground that Dilawar Khan failed to deposit Zare-Punjum within the time allowed by the trial Court and that the extension of time granted by the link-Court was coram non judice, as the link-Judge had no jurisdiction to grant extension of time on the application made in the suit which was pending before the Civil Judge 1st Class, he himself being a Civil Judge of Third Class. Against the judgment and decree of learned Judge in Chambers, 5 separate appeals have been filed before this Court as stated above.
7. ' We have heard Ch. Mushtaq Ahmed Khan, learned counsel for the appellant in C.A. No,714 of 1998, Mr. Mansoor Ahmed, Advocate Supreme Court in C.As. Nos.974 to 977 of 1998 and Mr. Gul Zarin Kiani, Advocate Supreme Court for respondents in all the above appeals.
8. ' Mr. Ch. Mushtaq Ahmed Khan, the learned counsel for appellant in C.A. 714 of 1998 contended that as the suits filed by his client and Dillawar Khan were originally decreed before the target date (31- 7-1986) the appellant was entitled to have his case decided on merits in terms of section 34 of Punjab Pre-emption Act, 1991 (hereinafteter to be referred as "the Punjab Act"), Reliance is placed by the learned counsel in support of his above contention on the following observations in the case of Muhammad Sharif v, Muhammad Sharif (1992 SCMR 1129):- "The words 'judgments and decrees' in subsection (2) of section 34 are not qualified to imply judgments and decrees passed only in favour of the plaintiffs/pre-emptors. The argument of the learned counsel for the respondent that this subsection applices to such judgments and decrees which have been passed in favour of the plaintiffs/pre-emptors, in view of the decision of this Court in Sardar Ali's case (supra) cannot be accepted, This new provision of law overrides the rule laid down by a number of judgments of this Court. The words 'judgments and decrees' thus, cover both the cases Le, those passed for or against the plaint ffs/pre-emptors "
9. ' The contrary view expressed by this Court in Government of N.-W.F.P. v. Said Kamal Shah (PLD 1986 SC 360), Sardar Ali v. Muhammad Ali (PLD 1988 SC 287), Muhammad Shoaib v. Member (Revenue)
10. (PLD 1988 SC 355), Ghulam Qadir v. Nawab Din (PLD 1988 SC 701), Aiwaz Khan v. Allah Bukhsh (PLD 1988 SC 730), Ahmed v. Abdul Aziz (PLD 1989 SC 771), Suo Motu Shariat Review Petition No,1/R of 1989 (PLD 1990 SC 865), Sultan v. Habib Ahmed (PLD 1990 SC 897), Aziz Begum v. Federation of Pakistan (PLD 1990 SC 899), Muhammad Yasin v. Khan Muhammad (PLD 1990 SC 1060), Muhammad Ismail v.
11. Ghulam Haider (1991 SCMR 1443), Rozi Khan v. Karim Shah (1992 SCMR 445), Khushal Khan v. Rao Nawaz (1994 SCMR 814), Zafar Ullah Khan v. Muhammad Khan 1993 SCMR 696, Hassan Mehmood v.
12. Bashir Ahmed (1994 SCMR 1624), Muhammad Salam v. Wali Muhammad (1997 SCMR 108), Asghar Abbas v. Muhammad Amin (1993 SCMR 2022), Said Amir Khan v. Shahzadi Khatoon (1993 SCMR 2050) and Civil Appeal No,730 of 1993, decided on 9-4-1995 according to learned counsel is not to be followed as the Court while deciding these cases failed to notice the provisions of section 34 of the Punjab Act. It is also contended that the decision of the larger Bench of this Court in Rozi Khan's case is not applicable as in Rozi Khan's case this Court was considering the provisions of N.-W.F.P.
13. Preemption Act, 1987 (hereinafter to be referred as N.-W.F.P. Act) which are different from the provision of Punjab Act, 1991.
14. The view expressed in Rozi Khan's case (supra) by a Bench of this Court consisting of 5 learned Judges being contrary to the view expressed by 2 learned Judges of this Court in Muhammad Sharif v. Muhammad Sharif (1992 SCMR 1129) the view expressed in Rozi Khan's case would prevail.
15. The contention of learned counsel for the petitioners that Rozi Khan's case was decided on the basis of the provisions of N.-W.F.P. Act which are totally different from the provisions of Punjab Act, does not appear to be correct. Section 35 of the N.-W.F.P. Act and section 34 of the Punjab Act read as under:-- "35. Repeal.--(1) The North-West Frontier Province Pre-emption Act, 1950 (N.-W.F.P. Act XIV of 1950), is hereby repealed.
(2) In the cases and appeals filed under the law referred to in subsection (1) in which judgments and decrees passed by the Courts have become final, further proceedings if any relating to such cases and appeals, shall, notwithstanding the repeal of such law be governed and continued in accordance with the provisions thereof.
(3) All other cases and appeals not covered under subsection (2) and instituted under the law, referred to in subsection (1) and which immediately before the commencement of this Act were pending before a Court shall lapse and suits of the pre-emptors shall stand dismissed, except those in which right of pre-emption is claimed under the provisions of this Act."
16. ' Section 34 of Punjab Act: "34. Repeal of Act I of 1913.--(1) The Punjab Pre-emption Act, 1913 (I of 1913) is hereby repealed.
(2) Notwithstanding anything contained in this Act, in the cases and appeals filed under the Punjab Pre-emption Act, 1913 (I of 1913) in which judgments and decrees had been passed before the 1st day of August, 1986, further proceedings if any relating to such cases and appeals shall notwithstanding the repeal of the said Act be governed and continued in accordance with the provisions thereof."
17. We have examined the language of section 34(2) of the Punjab Act as well as section 35(2) of N.- W.F.P. Act and are unable to agree with the learned counsel for the appellants that because of difference in the language of two provisions, the scope and consequences of section 34(2) of Punjab Act is different from that of section 35(2) of N.-W.F.P. Act. The effect of both section 34 of Punjab Act and sectin 35 of N.-W.F.P. Act is the same. Both the provisions are meant to protect the judgments and decrees passed in cases and appeals before the target date i.e, 31-7-1986. No doubt, in Rozi Khan's case this Court was interpreting section 35(2) of N.-W.F.P. Act but as the scope and purport of both the sections 35 (2) of N.-W.F.P. Act and 34 (2) of Punjab Act is the same, the effect and interpretation of section 35(2) of N.-W.F.P. Act in Rozi Khan's case equally apply to the interpretation of section 34 (2) of the Punjab Act. In Khushal Khan's case (supra), a similar argument, as is raised by the learned counsel for the appellants, was repelled by this Court as follows:-- "5. It was urged before us by the learned counsel for the petitioner that although the law of pre- emption and the relevant provisions of the Land Reforms Regulation in relation thereto have been declared against the Injunctions of Islam in case Government of N.-W.F.P. v. Said Kamal Shah (PLD 1986 Supreme Court 360) and it ceased to exist as a valid law after 31-7-1986, the learned Board of Revenue was legally justified in decreeing the plaintiffs suit in view of the judgment in Muhammad Sharif v. Muhammad Sharif reported in 1992 SCMR page 1129, and section 34 of the Punjab Pre- emption Act, 1991. It was further contended that the right of pre-emption vested in the plaintiff and arising from sale which took place in the year 1983 under the law then prevailing could not be defected by subsequent declaration that the law was against the Injunction of Islam and that it ceased to operate with effect from 1-8-1986. Reliance is placed on Ch. Sir Muhammad Zafarullah v.
18. Custodian, Evacuee Property (PLD 1964 SC 865) and Nabi Ahmad v. Home Secretary (PLD 1969 SC 599).
6. After hearing the learned counsel for the petitioner and going through the law cited before us we find no merit in these arguments in the context of the present dispute. Undoubtedly in Muhammad Sharif v. Muhammad Sharif (1992 SCMR 1129), decided on 2nd December, 1991 when section 34 of the Punjab Pre-emption Act (Act IX of 1991) come for consideration it was held that the words "judgments and decrees" in subsection (2) of section 34 are not qualified to imply judgments and decrees passed only in favour of the plaintiff/preemptor. The new provision of law overrides the rule laid down by a number of judgments of this Court. The words "judgments and decrees", thus, cover both the cases i.e, those in which plaintiffs/preemptors' suit was decreed and those in which the plaintiffs' suit was dismissed. However, in a number of appeals interpretation of the words "judgment and decree passed" by the Courts having become final came for hearing before Full Bench of 5 Hon. Judges of this Court in which the main judgment was delivered is Rozi Khan and others appellants v. Syed Karim Shah and other respondents (1992 SCMR 445). These appeals were from the jurisdiction of Peshawar (High Court requiring interpretation of section 35 of the N.-W.F.P.
19. Pre-emption Act (X of 1987) which is identical in substance to section 34 of the Punjab Preemption Act, As far as the relevant provisions are concerned section 35 of the N.-W.F.P. Act is in the following terms:-- '35 Repeal.---(1) The North-West Frontier Province Pre-emption Act, 1950 (N.-W.F.P. Act XIV of 1950) is hereby repealed.
(2) In the cases and appeals filed under the law referred to in subsection (1) in which judgments and decrees passed by the Courts have become final further proceedings if any relating to such cases and appeals shall, notwithstanding the repeal of such law be governed and continued in accordance with the provisions thereof.
(3) All other cases and appeals not covered under subsection (2) instituted under the law, referred in subsection (1) and which immediately before the commencement of this Act were pending before a Court shall stand dismissed, except those in which right of preemption is claimed under the provisions of this Act,'
20. 7, Interpreting the words 'judgment and decree passed by the Court have become final' their Lordships held as follows:- ' In view of the foregoing we are inclined to hold that the words judgment and decrees passed by the Courts have become final' in subsection (2) of section 35 mean 'those judgments and decrees wherein suit of the pre-emptor has been decreed by the Courts rendering it'. In so thinking we are fortified by the circumstances that this Court has always understood and consistently expounded the concept of finality in Pre-emption Statutes on this premises (see, inter nlia, Bibi Jan v. R.A.Monny PLD 1961 SC 69 at page 75/76, Sardar Ali v. Muhammad Ali PLD 1988 SC 287 at page 354).
21. ' In the light of the foregoing the effect of the provisions of section 35 of the new Islamic Law of Pre- emption, in our opinion, is that if at the time of the enforcement of the Islamic Law of Pre-emption (i.e, 1-8-1986 when the principles of the Islamic Common Law become applicable in the absence of final decree in the sense explained above (namely as decree in favour of the plaintiff/pre-emptor decreeing suit for pre-emption) had already been passed and an appeal against it was pending (which is a further proceeding relating to the case in which the decree was passed), the said further proceedings shall be governed and decided under the provisions of the old Act (N.-W.F.P.
22. Pre-emption Act, 1950) and the provisions of Act X of 1987 would not be attracted. Similarly, if a final judgment (decreeing the suit of the plaitniff/preemptor) had been passed before the aforesaid dates and the said judgment was being challenged before the revisional Court or the High Court in its writ jurisdiction such proceedings too shall be governed by and decided under the provisions of the old Pre-emption Law enacted in the 1950 Act.'
23. ' In view of the judgment Rozi Khan v. Syed Karim Shah (192 SCMR 445), relevant part thereof, reproduced above, the judgment in the case of Muhammad Sharif v. Muhammad Sharif (1992 SCMR 1129) is not attracted to the case. We, therefore, find no infirmity in the judgment of the learned High Court and dismiss the petition."
24. ' In Zafarullah Khan v. Muhammad Khan (supra) this Court once again examined a similar contention and refused to apply the ratio in the case of Muhammad Sharif v. Muhammad Sharif (supra) in view of the decision of this Court in Rozi Khan's case. The followings were the observations in the above case:-- "It is argued that as trial Court finally decided these suits before 1-8-1986 even though against them, by operation of the above subsection their rights were to be governed by the old Pre- emption Act. To strengthen this contention reliance has been placed upon judgment of its Court reported as Muhammad Sharif v. Muhammad Sharif (1992 SCMR 1129). This judgment, no doubt supports the pre-emptiors' contention.
3. The effect of a similar clause in the N.-W.F.P. Pre-emption Act has been considered by this Court in the case of Rozi Khan v. Karim Shah (1992 SCMR 445) by a much larger Bench. The view taken in this case is that the expression 'judgment and decree' occurring in clause referred to those judgments and decrees alone which had been passed in favour of the pre-emptors. It may be mentioned that the Punjab Pre-emption Act, 1991, was enacted to give effect to the judgments of this Court in the cases of the Government of N.-W.F.P. v. Said Kamal Shah, Sardar Ali v. Muhammad Ali, Mst. Aziz Begum v. Federation of Pakistan et seq. The view expressed in the Rozi Khan's case (ibid), is in accord with the above judgments of this Court. We would accordingly reject the contention of the pre-emptors that even though their suits were not decreed before 31-7-1986 yet the decrees passed after their stood saved by the provisions of section 34 (2), (ibid). We accept these appeals, set aside the decrees passed in favour of the pre-emptors and dismiss their suits, There will be no order as to costs."
25. ' The observations made in Muhammad Sharif v. Muhammad Sharif relied by the learned counsel for the respondents were also considered in the case of Said Amir Khan v. Shahazadi Khatoon and Rozi Khan's case was followed by this Court in preference to the observations made in Muhammad Sharif v. Muhammad Sharif for the following reasons:-- "5.The Punjab Pre-emption Act, 1913, was repealed by the Punjab Preemption Ordinance, 1990 (Ordinance V of 1990). In an endeavour to demonstrate that the suit could proceed under the new dispensation, the learned counsel invited our attention to para. 8 of the judgment dated 2-12-1991 in Muhammad Sharif v. Muhammad Sharif (1992 SCMR 1129), which runs as under:-- ' The words 'judgments and decrees' in subsection (2) of section 34 are not qualified to imply judgments and decrees passed only in favour of the plaintiffs/pre-emptors. The argument of the learned counsel for the respondent that this subsection applied to such judgments and decrees which have been passed in favour of the plaintiffs/pre-emptors, in view of the decision of this Court in Sardar Ali's case (supra) cannot be accepted. This new provision of law overrides the rule laid down by a number of judgments of this Court. The words 'judgments and decrees' thus, cover both the cases i.e, those passed for or against the plaintiffs/pre-emptors."
26. ' These observations were made by a learned D.B. While construing section 34 of the Punjab Pre- emption Ordinance (V of 1990). We may, however, refer here with advantage the judgment rendered on 20-1-1992 in Rozi Khan v. Karim Shah (1992 SCMR 445) by a larger Bench, to which one of us (M.A. Lone, J.) is a party. In this case section 35(2) of the N.-W.F.P. Pre-emption Ordinance, which corresponds with section 34 (2) of the Punjab Pre-emption Ordinance (V of 1990) fell for consideration before the Courts; therein the trial Court dismissed the suit but the First Appellate Court granted a decree to the pre-emptors on 16-5-1983. This decree was, however, reversed on revision by the High Court vide judgment dated 16-5-1987, resulting in dismissal of the suit. It was during the pendency of the revision that the N.-W.F.P. Pre-emption Act, 1987 was enforced; section 35 whereof repealed N.-W.F.P. Pre-emption Act, 1950. A question arose as to what was the effect of section 35 on the suits and appeals, etc. Instituted under the repealed Act, which were pending when the repealing Ordinance was promulgated. After some discussion of an earlier decision in Ghulam Sarwar v. Abdul Jalil (PLD 1991 SC 500) it was observed in Rozi Khan's case):-- 'As a matter of facts, the decree in favour of the pre-emptor by the appellate Court was passed on 16-5-1983 much before the enactment of the N.-W.F.P. Pre-emption Act, 1987 and also much earlier to this Court's judgment in the case of Said Kamal Shah (PLD 1986 SC 360), as a result whereof the provisions of the N.-W.F.P. Pre-emption Act, 1950, become ineffective from 31-7-1986. Howover, even the learned Judges did note in their judgment that:- 'On the question of law the learned counsel for the respondents contended that consistent with the decisions of this Court, the word final' while the appeal is still pending should be given the same meaning which have been given by the Supreme Court in its decision in Sardar Ali and others v.
27. Muhammad Ali and others (PLD 1988 SC 287). Where a decree had been passed in favour of the pre-emptor only then the proceedings would continue to be governed by the law which stands repealed.'
28. ' In view of the foregoing we are inclined to hold that the words 'judgments and decrees passed by the Courts have become final' in subsection (2) of section 35 mean 'those judgments and decrees wherein the suit of the pre-emptor has been decreed by the Courts rendering it.'
29. ' The judgment in Rozi Khan's case is later in time but was not brought to the notice of the Bench, which rendered judgment in Muhammad Sharif's case. The view taken in Rozi Khan's case would prevail. The decision of the High Court that the appellant's suit cannot proceed, as no decree was passed therein before 31-7-1986 is, thus, not open to any valid objection."
30. ' In a latest pronouncement of this Court in the case of Itrat Hussain v. Sohanru (Civil Appeal No,730 of 1993), decided on 9-4-1995, this Court once again reiterated the earlier view that in view of the decision in Rozi Khan's case, the observations made in Muhammad Sharif v. Muhammad Sharif cannot be accepted. The contention raised before the Bench was repelled in the cited case as follows:-- "In the above third case the question, whether a dismissal decree can be treated as a decree for the purpose of application of Sardar Ali's case, again came up for consideration before Full Bench of this Court comprising the then learned Chief Justice and four learned companion Judges. The above question was answered contrary to the view found favour in the case of Muhammad Sharif v. Muhammad Sharif (supra) in the following words:-- 'In view of the foregoing we are inclined to hold that the words 'judgments and decrees passed by the Courts have become final' in subsection (2) of section 35 mean 'those judgments and decrees wherein the suit of the pre-emptor has been decreed by the Courts rendering it'. In so thinking we are fortified by the circumstances that this Court has always understood and consistently expounded the concept of finality in pre-emption Statutes on this premises. (See, inter alia, Bibi Jan v. R.A. Monny PLD 1961 SC 69 at pages 75/76; Sardar Ali v. Muhammad Ali PLD 1988 SC 287 at page 354).
31. ' In the light of the foregoing the effect of the provisions of section 35 of the new Islamic Law of Pre- emption, in our opinion, is that if at the time of the enforcement of the Islamic Law of Pre-emption (i.e, 1-8-1986 when the principles of the Islamic Common Law became applicable in the absence of any statutory law or after 28-4-1987 when Act X of 1987 was promulgated a final decree in the sense explained above (namely a decree in favour of the plaintiff/pre-emptor decreeing the suit for pre-emption) had already been passed and an appeal against it was pending (which is a further proceeding relating to the case in which the decree was passed), the said further proceedings of the old Act (N.-W.F.P. Pre-emption Act, 1950) and the provisions of Act X of 1987 would not be attracted. Similarly, if a final judgment (decreeing the suit of the plaintiff/pre-emptor) had been passed before the aforesaid dates and the said judgment was being challenged before the revisional Court or the High Court in its writ jurisdiction such proceedings too shall be governed by and decided under the provisions of the old Preemption Law enacted in the 1950 Act'.
32. ' The above latter view was reiterated in the case of Ghulam Hussain and others v. Mushtaq Ahmad and others (supra).
(9) From the above cases cited by the learned counsel for the respondents it seems clear that the relevant view of this Court is that a dismissal decree of a suit of pre-emption passed prior to the target date, namely, 31-7-1986 cannot be treated as a decree for the purpose of applying the ratio decidendi of the judgment of this Court in the case of Sardar Ali (supra) but the decree should be of decreeing of the pre-emption suit prior to the above date."
33. From the preceding discussion, it is quite clear that this Court has consistently taken the view that if a decree in favour of pre-emptor was not passed before the target date, pending proceedings could not continue in accordance with provisions of the repealed Act. We are in respectful agreement with the view expressed by different Full Benches of this Court on the controversy and are of the view that in view of the decision of this Court in Rozi Khan's case the observations made by a learned Bench of 2 learned Judges of this Court in Muhammad Sharif's case cannot be accepted as correct enunciation of law. As no decree in the case was passed in favour of appellant, Babar Shehzad, before the target date namely, 31-7-1986, the suit filed by him could not be decreed in view of the decision in Rozi Khan's case. Civil Appeal No,714 of 1998 is, therefore, dismissed. As we have reached the conclusion that the suit filed by Babar Shahzad could not be decreed, it is not necessary to decide other contentions relating to collusive nature of the suit raised in that case.
34. ' In so far the decree in favour of rival pre-emptor, Dilawar Hussain, is concerned, the same was passed before the target date namely, 31-7-1986 and, therefore, no such objection can be raised against the decree passed in his favour by the First Appellate Court. Dilawar Khan was, however, non-suited by the learned Judge in Chambers on the ground that the learned link-Judge, who granted extension of time for deposit of Zar-e-Panjum had no jurisdiction to decide this application, and therefore, the order granting extension of time for deposit of Zar-e-Panjum was wholly without jurisdiction. The learned counsel for the appellants while criticizing the above view taken by the learned Judge in Chambers contended that appellant Dilawar Khan had made the application for grant of extension of time to the Court where his suit was pending. This application for extension of time, in the normal course, was placed before the link-Judge which was granted. It is contended that appellant, Dilawar Khan, was not at all instrumental in having his application decided by the link-Judge, which was an act of the Court for which he cannot be penalized. The learned counsel further contended that in any case while deciding Issue No,5 in the suit, the learned trial Court treating the said application as pending exercised his discretion and granted extension of time to deposit Zar-e-Panjum in the Court which is not open to any exception in the circumstances of the case. In support of his contention that no litigant should suffer on account of the act of Court, the learned counsel has referred to large number of reported cases. As we do not propose to examine here the correctness of the view taken by the learned Judge in Chambers that the order passed by the link-Judge extending time for deposit of Zar-e-Panjum was coram non judice, therefore, deposit made by the appellant after expiry of the time fixed by the trial Court was of no consequences, it is not necessary to refer here the cases relied by the learned counsel for the appellant in support of his contention that no party should suffer for the act of the Court. The learned counsel for respondents has taken a preliminary objection that the appeal filed by Dilawar Khan before this Court is barred by limitation. After hearing the learned counsel for parties, we are of the view that the preliminary objection must prevail.
35. ' Mr. Gul Zarin Kiani, learned counsel for the respondents, while opposing appeal of Dilawar Khan contended that this appeal was filed before this Court on 30-4-1998 but on the same date it was taken back and two weeks time was granted to the appellants to remove office objection and file the paper books. Another application was moved on 15-5-1998 seeking extension of time for another two weeks which too was granted. However, it is an admitted position that the appeal was represented thereafter, on 13-6-1998 in the office. It may be mentioned here that when these appeals came up for hearing before a Bench of this Court in which one of us (Saiduzzaman Siddiqui, J.) was a member, the following order was passed on 22-3-1999:-- "In the abovementioned five appeals arising from the same judgment, Mr. Gul Zarin Kiani, learned counsel for the respondents contends that Appeals Nos.974--977 of 1998 are time-barred, as the time allowed for filing of paper books to the appellants was only two weeks. The learned counsel contends that in the office memo. Tampering has been done and word 'two' has been substituted as 'four'. He further states that according to his information the Deputy Registrar (Judicial) has never corrected the word 'two' into 'four'.
36. ' In these circumstances we direct the Deputy Registrar (Judicial) to offer his comments on the correction made in the memos. Of these appeals.
37. ' These cases may be fixed in the week commencing 26th April, 1999 and the report of the Deputy Registrar (Judicial) be made available before that date."
38. ' A report has been submitted in compliance with the above order, by the Deputy Registrar wherein it is clearly stated that on 16-5-1998 Advocate-onRecord of the appellant had sought 2 weeks' time which was granted. It is further mentioned in the office report that the word "two" in the above application was surreptitiously changed to 'four'. Mr. Ijaz Muhammad Khan, the learned Advocate- on-Record appearing in these appeals candidly stated that he had changed the word "two" into "four" in the application after it was granted, bona fidely believing that as the maximum time which is usually granted to a party under the Rules is six weeks and this time is generally allowed by the Registrar. We are not satisfied with the explanation offered by Mr. Ijaz Muhammad Khan. In view of the categorical statement of Deputy Registrar in the office report that he allowed only two weeks' time to the Advocate-on Record on his application, dated 15-5-1998, the presentation of appeal without further extension of time was hopelessly time-barred. The learned counsel has drawn our attention to a decision by a learned Bench of this Court reported as Muhammad Sarwar v.
39. Muhammad Hussain (1998 SCMR 1938) wherein relying on an earlier case reported as Asif Ali Shah v. The Superintending Engineer, Quetta (PLD 1963 SC 263), the learned Bench held that where the entire record of an appeal has been taken away and it is re-presented afterwards the appeal shall be deemed to have been presented on the date when it is represented after compliance of the formalities. Since the appeal presented on 13-6-1998 was time-barred as there was no extension of time after expiry of two weeks from 15-5-1998, we dismiss the above appeals as barred by limitation. In the circumstances of the cases, there will be no order as to costs.