' This petition arises out of the following facts:--
2. On 21-5-1975, the respondent Muhammad Tufail filed a suit for pre- emption which was decreed by the Civil Judge 1st Class, Muzaffargarh on 27-10-1977. In the operative part of the order, the decree was made conditional on payment of Rs,51,675 less the amount already deposited up to 20-12-1977 failing which the decree was to be deemed ineffective. Also the plaintiff was directed to make up the deficiency in court-fee of Rs,725 up to 10-11-1977 otherwise the decree was to be considered as inoperative, The plaintiff/ present respondent filed an appeal which was dismissed by the learned District Judge, Muzaffargarh on 12-10-1978. The reason for dismissal being the non- affixation of proper court-fee on the memo. Of appeal. The present respondent, however, succeeded in R.S.A. No,220 of 1979, dated 5-11-1985 whereby a Single Bench of this Court followed the ratio settled by the apex Court in Re: Siddique Khan and 2 others v. Abdul Shakoor Khan and others PLD 1984 SC 289 and found that an appellant was entitled to an opportunity to make good the deficiency in the court-fee before passing of an adverse order on that account. Accordingly, the case was remanded to the District Judge, Muzaffargarh with a direction to first determine the exact amount of court-fee payable on the memo of appeal and to allow the appellant/present respondent to make good the deficiency of court-fee and then to proceed further as required by law.
3. On remand, the appellant/present respondent appears to have contested only the issue of costs of improvements. After hearing the parties, District Judge, Muzaffargarh on 18-1-1987 modified the judgment and decree of the trial Court and substitute a sum of Rs,29,175 on account of the price of the suit land including the cost of the suit land which was no more disputed. It was accordingly directed that if the said amount was deposited within a period of one month ending on 19th January, 1987, the suit of the appellant/ present respondent shall be considered to have been decreed. In case of failure. It was to be considered to have been dismissed. The present respondent, it appears not only made the aforesaid payment but also made good the deficiency in court-fee on 15-2-1987. Thereafter, he filed an application for execution. That application was resisted by the present petitioner on the ground that the trial Court had directed the decree-holder to make good deficiency in court-fee of Rs,725 by 10-11-1977 and that the said direction as well as the judgment and decree of the trial Court having again become operative on 12-10-1978 when the appeal of the plaintiff/ present respondent was dismissed in the first round the suit stood dismissed. The executing Court noted that in the case before it the learned first appellate authority by way of its order made after remand on 18-1-1978 had allowed the opportunity to deposit the sale price up to 19-1-1987 but no specific order was made regarding extension in time for making good the deficiency in court-fee. In the view of the executing Court as expressed in the order dated 21- 12-1988, it was to be considered that no extension was allowed for that purpose. And therefore, the plaintiff/preemptor was bound to make up the deficiency in court-fee on the same day when the judgment and decree was announced i,e, 18-1-1987. Accordingly, the objection petition was accepted and on that basis on 3-3-1988 the execution petition was filed. The appeal filed by the present respondent against that order was dismissed by District Judge. Muzaffargarh on 20-12- 1988.
4. On the same day namely 20-12-1988, the present respondent made an application before the District Judge to explain his order, dated 18-1-1987. In para. 2 of the application it was stated that in his appeal decided on 18-1-1988, the appellate Court had reduced the decrial amount and directed its payment within certain time but no order as regards court-fee was made. It was pointed out that earlier the appellate Court on 10-11-1977 had suspended the conditional order of the trial Court directing payment of court-fee till that date. It was further stated that the petitioner had already made up the deficiency in court-fee on 15-12-1987 simultaneously when he deposited the remaining decrial amount as directed by the appellate Court on 18-1-1987. On that application, the District Judge, Muzaffargarh passed the impugned order on 18-6-1989 whereby he accepted the application by resort to the provisions of section 152, C.P.C. And directed that the original judgment and decree passed in Appeal No,47/13 of 1985, the time granted for the payment of Rs,29,175 on account of the price of the suit land including costs of improvements shall also be considered as time granted for making up the deficiency in the court-fee.
5. Parties have been heard.
6. The learned counsel for the petitioners assails the impugned order of the District Judge, Muzaffargarh, dated 18-6-1989 on a number of grounds. Firstly it is stated that the aforesaid miscellaneous application on which' the order was passed was not maintainable inasmuch as the Court had become focus officio after delivering the judgment, dated 18-1-1987: that some of the respondents before him/present petitioners were minors and were not properly represented or served: that the learned District Judge failed to appreciate the settled law on the subject particularly the ratio settled in Khurshid Akbar v. Mian Manzoor Ahmad and another 1982 SCMR 824 that on the disposal of the appeal by the District Judge in the first round on 12-10-1978 without any direction for extension in time the ratio settled in Re: Haji Ishtiaq Ahmad and 2 others v. Rakhshaya and 7 others 1976 SCMR 420 became applicable and the omission to provide for time limit could not be supplied by resort to the provision of section 152, C.P.C. On the authority of Re: Mst. Rooh Afza v. Sher Aman Khan and others PLD 1993 Pesh. 49, the proceedings against the minor respondents in the petition are stated to have been taken without lawful authority: Also refers to AIR 1952 SC 409 Re: Messrs Gampat Rai Hiralal and another v. 'The Aggrawal Chamber of Commerce Ltd. AIR 1951 Pepsu 39 to contend that petition under section 152, C.P.C. Was not in continuation of suit or proceedings therein and was in the nature of an independent proceedings. Further contends that the decree passed by the trial Court being conditional the condition became operative on the day the appellate order was announced in the first round and that the appellate Court having announced the judgment became functus officio and could not make the impugned order.
Reliance is also placed upon re: Mst. Ghulam Fatima and 3 others v. Talib Hussain and 3 others 1990 MLD 1782 wherein inter alia it was found that no application for extension in time for payment of court-fee could be made after the judgment and decree had been announced and that the time so prescribed having elapsed, the plaint stood rejected on the expiry of the period. Lastly the learned counsel refers to re: Khurshid Akbar (supra) to contend that the operation of the decree having been suspended on application of petitioners, unexpired period allowed by lower Court for deposit of preemption money started running from date of dismissal of appeal. The suspension of decree having been made on the last date fixed for payment of court-fee according to the learned counsel for the petitioner, the deficiency had to be paid right on The very day or at best in accordance with the ratio settled in Re: Haji Ishtiaq Ahmad and 2 others (supra) within a reasonable time. It is pointed out that in that case. The apex Court refused to accept the delay of one month and 18 days to be a reasonable time to making good the deficiency.
7. The learned counsel for the respondents, on the other hand relies upon re: Tepri Mai Bewa v.
Farey Mahmud and others PLD 1970 Dacca 475: Re: Muhammad Ayub v. Muhammad Afzal and 4 others 1989 CLC 2043; PLD 1990 SC 865, Re: Suo Mow Shariat Review Petition No, 1/R of 1989. Also submits that most of these cases including re: Khurshid Akbar (supra) 1982 SCMR 824 had been rightly distinguished by the District Judge, Muzaffargarh in the impugned order and that the finding so recorded do not warrant any interference. Accordingly, the exercise of power of amendment as conferred on a civil Court (including appellate Court) under section 152, C.P.C. Is supported.
8. After considering the rival arguments, I am of the view that the impugned order allowed a relief to the present respondent which was not due to him. The ratio settled in re: Khurshid Akbar (supra) applies on all four to the facts in hand. Therefore, the distinction made by the learned District Judge in para. 6 of the impugned order hardly appears justified. The view of the apex Court as expressed in Haji Ishtiaq Ahmad and 2 others (supra) that an omission to supply time limit for depositing preemption money could not be supplied under section 152, C.P.C. Also supports the case of the present petitioner. The purported exercise of jurisdiction under section 152, C.P.C.Appears all the more unjustified after the learned first appellate authority had already rejected the appeal of the present respondent on 20-12-1988 against the order of acceptance of the objection petition. The contentions of the respondents were allowed to prevail by resort to the provisions contained in section 152 which is restricted in nature as compared to the appellate jurisdiction in which he was refused relief. The learned counsel for the petitioners is correct in pointing out that after dismissal of appeal of the present respondent in the first round on 12-10-1978 the suspension order evaporated and the condition of the decree became operative. He is also right in pointing out that application seeking explanation of the order could be made only in respect of the order dated 12- 10-1978 and not the subsequent order, dated 18-1-1987. The fact that the respondent of his own deposited the deficient court-fee while complying with the order, dated 18-1-1987 which pertained to the deposit of decretal amount only could not have been taken as a plus point. It appears that by that time the respondent had become conscious of his mistake of not having complied with the conditions of the decree even after dismissal of his appeal in the first round. Therefore, he attempted to take cover of the order for deposit of the decretal amount by a certain date. It is not the case of the respondent that after dismissal of his appeal in the first round on 12-10-1978 an interim relief was allowed by this Court on the same day with regard to the payment of the remaining court-fee. Therefore, according to the ratio settled in Haji Ishtiaq Ahmad and 2 others (supra), he should have deposited the court-fee within the remaining time limit after the rejection of his appeal or at best within a reasonable time. It will be noted that in the last cited judgment of the Supreme Court their Lordships in similar circumstances upheld the judgment of this Court whereby the extension to make deposit of pre-emption money granted by the District Judge for one month and 18 days after dismissal of the appeal was quashed. As said earlier, the exercise of powers under section 152, C.P.C. In the facts of the case was also unjustified. The resort to the provisions of section 152, C.P.C. Does not find support from the ratio settled in Re: Haji Ishtiaq Ahmad and 2 others (supra) and re; Messrs Gampat Rai Hiralal (supra). The cases relied upon by the learned counsel for the respondent do not in any manner touched the real issue in this petition, In the first case Re: Tapri Mai Bewa (supra) the failure on the part of the Court to mention possession in the decree was found inadvertent and was, therefore, found liable to be supplied under sections 151 and 152, C.P.C. In this case by way of the impugned order, the learned District Judge was required to explain his judgment and the relief allowed, was not in any manner a relief demanded by the appellant in the original appeal. To amend the decree, to allow a relief claimed in the plaint but inadvertently not mentioned cannot be equated with extending time for deposit of court-fee ex post facto. A relief either not claimed or not allowed in the judgment and decree cannot be allowed unless the dictates of law or requirements of justice so demanded. The learned District Judge in the impugned order admitted that the issue of court-fee was never raised before him nor agitated by any of the parties. That fact by itself explains non-granting of such relief, Therefore, the acceptance of the petition and in the guise of explaining his earlier order he could not give a substantial relief.
The second case re: Muhammad Ayub (supra) is also distinguishable inasmuch as the trial Court omitted to determine the preferential right of one of the respondent-pre-emptors. Therefore, a Division Bench of the Peshawar High Court did not agree with the Court that after announcement of the judgment and decree it had become focus officio. In the third case, re suo motu Shariat Revision Petition No,1/R of 1989, the procedure and Rules of the Supreme Court were considered along with Order 47, Rule 1, C.P.C. The ratio settled in that case give a general view of practice and procedure of the apex Court in the perspective of the administration of justice. In the presence of the aforesaid judgment of the apex Court on the specific point and controversy in hand, general principle settled in the last stated judgment will not help the petitioners in any manner.
9. For what has been stated above, this petition is allowed and the impugned order, dated 18-6- 1989 granting ex post facto permission to pay deficient court-fee is set aside. Resultantly the order of the executing Court, dated 21-2-1988 accepting the objection against maintainability of the execution petition and its disposal on 3-3-1988 shall be maintained.