SAVED ZAHID HUSSAIN, J. -- This is a revision petition under Section 115, CPC against the judgment dated 7.4.1985 of the learned District Judge, Layyah, whereby the appeal filed by the petitioners, against the judgment of the learned Trial Court. Dated 11.10.1984, was dismissed. It arises in the following circumstances.
2. Land measuring 242 kanals was sold by Ghulam Qasim and Ghulam Abbas, to A.I Muhammad vide sale-deed dated 3.9.1980, for Rs.1,00,000/-. Mst. Bharawan the mother and Ghulam Hassan and Mushtaq Ahmad the sons of the vendors, brought a suit for pre-emption, claiming their superior right, on various grounds. The suit was contested, and after trial, it was decreed by the learned Trial Court vide judgment dated 4.10.1984, with the direction to the petitioners/plaintiffs to deposit the pre-emptim money i.e., Rs.1,06,000/- till 15.11.1984 otherwise the suit shall stand dismissed.
3. The respondent/vendee did not appeal against the judgment. Plaintiffs/petitioners, however, filed an appeal on 14.11.1984 challenging the findings on issue No. 2, as to the price of the land.
Alongwith the appeal an application for suspension of the judgment of the Trial Court was made, which was dismissed by the Appellate Court on 14.11.1984. The petitioners then filed C.R. No. 625/84, before this Court, which was also dismissed on 18.11.1984 with same observations.
4. Finally the appeal came up for hearing before the learned District Judge on 14.3.1985, when it transpired that decree sheet had not been prepared by the learned Trial Court. The Trial Court was thus directed to prepare the decree sheet and the petitioners were directed to file the same with the Memo. Of Appeal. The decree was then prepared by the Trial Court on 17.3.1985 and filed with the appeal. The appeal was then dismissed by the learned District Judge on 7.4.1985 without giving any time for deposit of the pre-emption money. This judgment is challenged in this revision petition.
5. The learned counsel for the petitioners has not assailed the findings of the two Courts below as to the .Sale price or the pre-emption money. He, however, contends that decree in this case was not prepared till 17.3.1985, thus no compliance of the same could be expected prior to the same i.e..
15.11.1984 the date fixed by the Trial Court. It is contended that in terms of Order XX, rule 14 (1), CPC, it is the date specified in the "decree" before which the pre-emption money is to be paid. He contends that the Appellate Court was empowered to extend the time for payment, even if it had already expired. Reliance has been placed on Allah Ditta and others v. Lal Din and others (1982 SCM R 642).
6. The learned counsel for the respondents on the other hand contends that the learned District Judge has rightly dismissed the appeal and refused to extend the time. It is contended that the petitioner should have remained vigilant and deposited the pre-emption money in time.
7. As observed in Shah Wall v. Ghulam Din alias Gamoo (PLD 1966 SC 983) a decree passed in favour of a pre-emptor, is of a composite and contingent character. If the pre-emptor complies with the conditions of the same, i.e. Deposit of pre-emption money within the specified period, the decree for possession shall become operative in his favour. But if he commits a default, the ing the suit become effective. The preemptor. Therefore, has to be vigilant to reap the fruits of the decree.
In the present ease. The suit was decreed in favour of the petitioner/pre-emptores on 4.10 1984 specifying the date for payment , of pre-emption money on 15.11.1984. An appeal was filed by them on 14.11.1984 when their application for suspension of the judgment was dismissed by the learned District Judge. They went in revision but the same was dismissed by this Court on 18.11.1984. It was observed as follows:- "The exercise of discretion by the learned District Judge does not suffer from any legal infirmity. A discretionary order cannot ordinarily be interfered within exercise of revisional jurisdiction. I am, therefore, not inclined to interfere in revision. Learned counsel submits that the appeal of the petitioner will be dismissed by the learned District Judge due to non-deposit of the preemption money. I cannot go into this hypothetical question. Legally speaking, Appellate Court in proper cases has the power to grant time for deposit of the pre-emption money. This power is to be exercised judicially and fairly. Reference may be made in this connection to Shah Wali v. Ghulam Din (PLD 1966 SC 983). In this case I have made the above observation in view of the apprehension expressed by the learned counsel. The matter is before the learned District Judge and, of course, the same will he decided in accordance with law. With these observations, this petition is dismissed in limine."
It is not disputed that the grant of time or otherwise is a matter of discretion, to be exercised by the Court in accordance with law. The learned District Judge while dealing with the appeal had to keep in mind the principles laid down on the subject. It is contended that he ought to have granted fresh time for payment of the pre-emption money even though the appeal was dismissed.
8. It is a settled law that provisions of Order XX Rule 14 (1), CPC being of a penal nature have to be construed strictly. See for reference Said Alam Shah through his L.Rs. v. Mst. Jana and others (PLD 1991 SC 360) and Fateh Khan v. Boze Mir (PLD 1991 SC 782).
9. The contention of the learned counsel for the petitioners that since 'no decree had been drawn in the case till 17.3.1985, therefore, the payment before the date specified could not be expected from the petitioners is not without substance in the facts and circumstances of this case. In the case of Allah Ditta (supra) the pre-emptor/decree-holder whose suit was decreed by the High Court decided the appeal on 14.3.1966, directing the payment of pre-emption money on or before 1.7.1966.
The decree-holder applied for the judgment and decree on 24.3.1966 but the copies were delivered on 2.1.1967 (long after the specified date) by which date the time had expired. He immediately filed review, praying that "the judgment and decree may be amended or varied to the extent that further period of three months be granted for depositing the money". The ground -given was that he came to know about the amount and date for deposit only on perusal of the copies of the judgment and decree, which were delivered to him on 2.1.1967. The learned Judge of the High Court accepted the review observing that the decree sheet was not prepared on the date the decree was passed i.e. 14.3.1966. Since the decree-holder had applied for ill judgment/decree in time, he was not at fault, if he failed to comply with the order of the Court dated 14.3.1966. Thus time was extended by accepting the review, which order was maintained by their Lordships of the Supreme Court observing that "if the copy was supplied after the date prescribed for making the deposit had already expired and it was impossible to comply with its terms and the result was brought about by the negligence or mistake of an agency of the Court, this error could be corrected even in exercise of the review jurisdiction".
10. In the present case, admittedly, the decree was prepared on 17.3.1985. Now sub Rule (1) of Rule 14 of Order 20, CPC lays down that the "decree" shall specify a day on or before which the purchase money shall be paid. The non-preparation of the decree sheet thus rendered the petitioner's unable to comply with the date specified for the payment of purchase money. The petitioners were not thus at fault at all. It was an omission or mistake on the part of the Court, for which the petitioners could not be penalized or made to suffer. In the case of Said Alam Shah, (supra), it was observed that when the Court itself was at fault, default in payment of money could not be made a ground for penalizing the decree-holder. Similar view was taken in Fateh Khan, (supra), it was observed that no party had to suffer on account of an act of the Court.
11. When the decree sheet was drawn and remitted to the Appellate Court by the learned Trial Court, the appeal was still pending before the learned District Judge. However, it was not realized while deciding and dismissing the appeal that it was not the petitioner who alone was at fault. It was held in Bhati Khan v. Allah Bakhsh and another (1986 SCM R 849) that the Appellate Court had the power to extend time for deposit of preemption amount during the pendency of the appeal before it as well as when it dismisses the appeal. It has recently been laid down by their Lordship of the Supreme Court in Nazir Ahmed and others v. Abdullah (1999 SCM R 342) that where the non- deposit of the pre-emption money in time was not intentional but was due to an error of the Court the decree-holder was entitled to the extension of time under Sections 148, 151 and Order 41, Rule 33, CPC.
12. Keeping in view the aforesaid principles laid down by the Hon'ble Supreme Court, this was eminently a fit case in which the learned Appellate Court should have granted reasonable time to the appellant/decree-holders for deposit of the pre-emption money. The learned District Judge, however, appears to have lost sight of the peculiar facts and the circumstances of this case and proceeded to dismiss the appeal without granting any time whatsoever to the, petitioners/decree- holders. He thus failed to exercise the jurisdiction vested in him, under the law.
13. As a result of the above, the judgment of the learned District Judge dated 7.4.1985 is set aside.
This petition is accepted. The petitioners/decree-holders are directed to deposit the pre-emption money after excluding the amount which they have already deposited by or before 30th March, 1999, failing which, the suit shall stand dismissed.
No order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.