RANA BHAGWAN DAS, J.---Leave to appeal was granted to consider the following questions:--
(i) Whether the shortage of deposit of merely thirty paisas in preemption money justified the dismissal of the suit for pre-emption? And
(ii) Whether on the strength of the authority of this Court in Allah Bakhsh v. Umar and another (1994 SCM R 1129) the suit brought by the respondents against the petitioners was competent in view of the Bar contained in section 47 of the Civil Procedure Code?
2. Facts, in a nutshell, leading to the litigation for the last over three decades appear to be that appellants Gull Usman and others filed a suit for pre-emption in respect of a piece of land measuring 1 Kanal, 10 Marlas bearing Khata No,237/1109, Khasra No,3118/1557, situated at Village Ahmad Khel, Tehsil Peshawar against the respondents which was decreed in their favour. Faqir Gui, predecessor-in-interest of respondents Nos.1 to 9 unsuccessfully challenged the decree up to the High Court. In Civil Revision, High Court, while decreeing the pre-emption suit, directed the appellants to deposit an amount of Rs,4,000 within one month from the date of decree i,e, 3-2-1982.
Appellants deposited such amount in the trial Court within time which was, however, found to be short by 0.30 paisas, much later. After the decree, appellant acquired possession of the property preempted. Respondents came to know about the shortage in amount deposited, when they applied for release of the pre-emption money. Accordingly, ill-advised, as they were, they filed a suit for possession through partition in respect of the land pre-empted by the appellants on the averments that the suit for pre-emption stood dismissed due to non-compliance with the Court direction as to the deposit of the pre-emption money. This suit was resisted on various grounds on facts as well as on questions of law, inter alias as to its maintainability and bar of law. Such suit was, strangely enough, decreed by the trial Court and appellants unsuccessfully pursued the remedy of appeal as well as civil revision before the High Court, hence this appeal with the leave of the Court.
3. Short question for consideration in this appeal is "whether the Courts below as also the learned High Court were legally justified in decreeing the suit for possession on account of short deposit of pre-emption money by the appellants in the sum of paisas thirty only?".
4. Learned High Court, while concurring with the views of the Courts below relied upon a Single Bench judgment of the Peshawar High Court reported as Muzaffar v. Ali Khan (1989 CLC 2342), Conversely reference has been made to a Division Bench Judgment of the erstwhile West Pakistan High Court reported as Shah Muhammad Khan v. Allah Diwaya (PLD 1961 (W.P.) Lahore 743) and a judgment of Supreme Court in Allah Ditta v. Lal Din (1982 SCM R 642). In both the cases relied upon by the appellants, West Pakistan High Court as well as this Court expressed the view that plaintiff could not be non-suited for short deposit of the pre-emption money due to mistake on the part of the office of the Court. In the case in hand, it is admitted that the appellants had deposited a sum of Rs,2,500 in the trial Court as early as 19-5-1969. On being advised that the sum required to be deposited by them was Rs,1,800, they obtained refund of a sum of Rs,700.30 on or about 16-9-1975 from the Court and after final decision by the High Court enhancing the preemption money to Rs,4,000, under bona fide impression and acting in good faith, they deposited balance amount of Rs,2,200 before the trial Court within time.
5. It is pertinent to notice that P.W. Sher Zaman, Civil Nazir, Peshawar in his testimony before the trial Court admitted that the plaintiffs had deposited and withdrawn the above amounts with due permission of the Court which would manifest very clearly that office of the Court did not object to the refund of thirty paisas in excess of what was due and recoverable. Obviously, such challans for payment and refund are prepared by the office of the Court and not by a party with the natural and legal phenomena that a party cannot be made to suffer for the mistake of the office of the Court. This proposition of law is so well-settled that it does not call for any authority. Needless to emphasize, if the appellants were able to deposit a sum of Rs,4,000 less thirty paisas in compliance with the decree as amended by the High Court as far back as 1982 it cannot be conceived that they were defaulters in compliance with the decree of the Court to the extent of thirty paisas. Such a bona fide mistake or lapse in good faith on the part of the appellants deserved serious, earnest and compassionate consideration of the Courts below as well as a learned High Court who appeared to have laboured under misconception that the appellants by short deposit of thirty paisas towards the pre-emption money were guilty of contumacious disregard of the Court's order even after availing of the fruits of a decree in suit for pre-emption. On our part, we are inclined to ignore and condone such delay in exceptional circumstances of the case which would be just, fair and equitable. Even otherwise this Court being the highest Court of law under the Constitution is empowered to pass any order, decree and issue any directive for the advancement of complete and substantial cause of justice, and procedural technicalities cannot restrain this Court in doing complete justice as ordained by Article 187 of the Constitution.
6. Adverting to the next ground on which leave to appeal was granted by this Court, it may be observed that learned counsel for the appellants did not advance any substantial argument but we may refer to the case reported as Allah Baldish v. Umar (1994 SCM R 1129) referred to in the leave granting order and observed that the institution of the suit for possession by partition itself could not be sustained at law as decree obtained in pre-emption suit attained finality with the judgment passed by the High' Court. In law such decree could not be upset and reversed through a separate suit which is barred by section 47 of the Code of Civil Procedure. At best an objection could have been raised in execution proceedings, if any. On this legal score as well, the judgments passed by the Courts below and affirmed by the learned High Court can hardly be upheld.
7. For the aforesaid facts and reasons, we allow this appeal and recall the judgments of the trial Court, Appellate Court as well as the learned High Court leaving the parties to bear their own costs.
We do not feel persuaded to direct the appellants to deposit the balance amount of thirty paisas in the trial Court at this stage which amount is too meagre and hardly of any significant value.