JUDGMENT CH. IJAZ AHMAD, J. - Brief facts out of which the present Reg. Second Appeal arises are that Mst. Rasool Bibi sold land measuring 45 canals, 14 marlas to respondents vide registered sale- deed dated 1.3.1974 for consideration of Rs.22,000/-. Appellant tiled suit for pre-emption on 27.2.1975 on the ground that appellant is ownership in the estate and land in question is. In his possession as tenant. Respondents tiled written statement controverted the allegations levelled in the plaint.
2. Out of pleadings of the parties, the Trial Court framed the following issues:-
(i) Whether plaintiff has got better right of pre-emption as against the vendees? OPP
(ii) Whether Rs.22,000/- were actually paid or fixed in faith of sale price? OPP (i.e) Market value of the suit price? OPP
(iv) Whether plaintiff is estopped to bring this suit by his conduct and1 has waived his right of pre- emption, if any? OPD
(v) Whether the suit is bad for partial pre-emption? OPD
(vi) Whether valuation of the suit is incorrect for purpose of Court- i.e and jurisdiction.
(vii) Whether the suit is time-barred? OPD
(viii) Relief.
The Trial Court decreed the suit vide judgment and decree dated 12.12.1975 and fixed the amount of consideration of Rs. 13,875/- and appellants were directed to deposit the amount on or before 15th January, 1976. The appellant paid the amount in question. Respondent No. 3 being aggrieved by the judgment and decree of the Trial Court filed appeal before the District Judge, Sialkot who accepted the appeal vide judgment and decree dated 6.6.1977 and enhanced the amount of consideration amounting to Rs. 17,937.50. Appellant was directed to deposit the remaining purchase money Rs.4,062.50/- on or before 7th of July, 1977 failing which his suit shall stand dismissed. Appellant being aggrieved by the aforesaid judgment and decree of the first Appellate Court filed the present appeal.
3. Learned counsel tor the appellant stated that the learned District Judge has increased the decretal amount whereas it was not prayed for. He further stated that a question would arise whether the sale was divisible and the vendees could be ordered to deposit the sale money separately. He further stated that the first Appellate Court granted the relief which was not prayed for by the respondent No. 3. He further stated that decree was obtained by playing fraud with the Court as the service of the appellant was not effected before the first Appellate Court. He further stated that the first Appellate Court mentioned in the judgment in para 4 that appellant was present on the previous date of hearing but he has failed to appeal today which is contrary to the Urdu order dictated by the learned District Judge on 6,6.1977. He further stated that para 4 of the judgment reveals that it was a consent decree as respondents Nos. 2 and 3 have no objection to the acceptance of the appeal in favour of the appellant/respondent No. 3. He further stated that appellant came to know that the decree has been passed by the District Judge against him with the target date mentioned by the District Judge i.e. 7.7.1975 which has already been expired and the appellant filed this appeal before this Court on 10,9.1977. He further stated that the first Appellate Court decided the case without applying his mind, the same is not sustainable in the eyes of law. He further stated that appellant is ready to deposit the increased amount as directed by the first Appellate Court in case the appellant be allowed to do so and this Court has ample jurisdiction to grant the extension. He further stated that ex parte order was obtained by respondent No. 3 in absence of the appellant by playing fraud with the Court. Therefore, ex parte decree is nullity in the eyes of law as the principle laid down by the Hon'ble Supreme Court in PLD 1990 SC 813. He summed up his arguments that the technicalities should not be hindered in the way of justice and he relied upon PLD 1989 SC 583.
4. Learned counsel tor the respondents stated that it is settled proposition of law that ex parte decree is a good decree and operative unless and until the same is set aside by the higher Court.
Therefore, appellant was bound to deposit the increased price within the prescribed period mentioned by the first Appellate Court. 7.7.1977. Therefore, appellant's suit shall be dismissed automatically by virtue of Order 20 Rule 14 of the CPC. He relied upon the following judgments:- 1976 SCM R 502; PLD 1979 SC 917; PLD 1966 SC 893.
He further stated that pre-emption right is a very weak right and the judgments cited by the learned counsel of the appellant is distinguished on facts and law. He further stated that it was in the knowledge of the appellant before the target date as the appellant filed application for obtaining certified copy of the judgment and decree of the first Appellate Court on 9.6.1977. He further contended that the appellant failed to prove on record that decree was obtained by respondent No. 3 without proper service of the appellant. Therefore, judgments cited by the learned counsel for the appellant is distinguished on facts and law. He further urged that by commission of the appellant to deposit said amount within fixed period, vested right accrued to the respondents.
Therefore, the aforesaid judgments are not attracted in the present case.
5. Learned counsel for the appellant in rebuttal stated that appellant has. Filed application for obtaining certified copy of the judgment of the first Appellate Court on 3.9.1997 as is evident from the copy filed along with the appeal before this Court.
6. I have given my anxious consideration to the contentions of learned counsel for the parties and perused the record. It is admitted fact that suit for pre-emption was decreed by the Trial Court, determined the price of consideration and fixed the period for deposit. The appellant deposited the same in accordance with the terms of judgment and decree of the Trial Court. Respondent No. 3 preferred appeal, which was accepted to the extent of consideration of price of the land in question. The appellant was directed to deposit enhanced amount of consideration amounting to Rs.4062.50 on or before 7th July. 1977 failing which his suit shall stand dismissed. It is also admitted fact that the appeal was decided ex parte against the appellant as is evident from para 4 of the impugned judgment coupled with the fact that it was consent decree as learned counsel for respondents Nos. 2 and 3 stated that his client has no objection to the acceptance of the appeal hut appellant/respondent No. 1-decree-holder shall pay Rs.4062.50 over and above amount fixed by the Trial Court to the appellant. The appellant filed an application tor obtaining certified copy of judgment and decree of the Trial Court on 3.9.1977 and filed before this Court on 10.9.1977 meaning thereby the time fixed by the 1st Appellate Court has already been expired. Respondents' counsel has relied upon Haji Nawab Khan's case (1976 SCM R 502) but the facts of the cited case are distinguished as Haji Nawab Khan filed application before the decretal amount which was allowed and he deposited the amount but unfortunately his calculation turned out to be wrong and the deposit fell short of Rs.1,000/- and his suit for pre-emption stand dismissed in terms of the decree itself. Similarly, case cited by respondents' counsel (PLD 1966 SC 983) is distinguished on facts as the second appeal filed by the appellant in the cited case was accepted only in respect of enhancement of the price and the respondent was directed to deposit the enhanced amount minus any amount already deposited by him on or before 9th September, 1974 in the Trial Court, It appears that the amount fixed by the High Court was not deposited by the plaintiff within the requisite time. The plaintiff filed application u/Ss. 151/152, CPC with the prayer tor extension of time to deposit the aforesaid amount. The cited cases are distinguished on facts and law, therefore, same are not attracted qua the proposition arises in the present ease. The cited cases do not tore- close or bar the jurisdiction of this Court for extension of time to deposit the enhanced amount over and above the time fixed by the 1st Appellate Court. This Court has ample powers to extend the time at the time of deciding the appeal as the principle laid down by the Hon hie Supreme Court in Bhai Khan's case (PLJ 1986 SC 189) and the relevant observation is as under:- "The rule deducible from the decision of this Court appears to be that an Appellate Court can extend the time for deposit of the pre-emption amount both during the pendency of the appeal before it as well as when it dismisses the appeal. Thus, the view of the learned District Judge that he had no power to extend the time for deposit of the pre-emption amount as the time given by the Trial Court in its decree had expired, was erroneous."
Learned counsel for the respondents relied upon Shah Wali's case (PLD 1966 SC 983) which does not support the case of respondents and the ' relevant observation is as follows :- "Neither the first nor the second nor the last view appear to be based upon sound principles. If the first view prevails then the right of appeal would be rendered illusory unless the deposit has been made even if the pre-emptor is appealing against the quantum of the pre-emption money or the reasonableness of the period fixed. The second view is on its face inconsistent, for, if the appellate decree has incorporated within it the terms of the decree appealed from how can the starting point of the period be deemed to have been revied by implication. The adoption of the last view would be clearly in disregard of the provision of Order XX, rule 14, CPC. In the circumstances, I would agree with my Lord the Chief Justice that the third view which appears to be more in consonance with reason and justice should be preferred so that inconsistencies are avoided and a successful pre-emptor is not deprived of the fruits of his decree unreasonably."
The present proposition of law is fully covered as the principle laid down by the Division Bench of this Court in Khan Shah Muhammad Khan's case (PLD 1961 SC 743). It is settled proposition of law where an Appellate Court is dismissing an appeal, it should allow reasonable time to make the deposit as the principle laid down by the Hon'ble Supreme Court in the following judgments:- (1984 SCM R 325); (1982 SCM R 824); (1976 SCM R 420).
According to the Indian Supreme Court time can be extended as the principle laid down in (AIR 1970 SC 750); our Hon'ble Supreme Court has also laid down principle that Supreme Court may extend the time while dismissing the appeal for leave to appeal as the principle laid down in (PLD 1982 SC 282 and PU 1980 SC 171).
7. Keeping in mind the observation made in the authorities referred to above, I am of the opinion that though the appellant did not comply with the terms of the decree of the 1st Appellate Court inasmuch as the amount was not deposited by him, the appeal having been filed within the prescribed period coupled with the facts that impugned judgment was' passed against the appellant ex parte and the appellant filed application for obtaining certified copy of judgment and decree when the date fixed by the It Appellate Court has already been expired, therefore, this Court is competent to extend time fixed by the 1st Appellate Court for depositing the money. I am also of the opinion that the failure on the part of the appellant to deposit the enhanced amount by the 1st Appellate Court was not due to any negligence on his part, nor was this default intentional and therefore, I would be justified in granting further time for deposit of the money.
8. In view of the aforesaid discussion, this appeal is accepted with no order as to costs to the extent of directing that the pre-emption money as ordered by the 1st Appellate Court, should be deposited within a period of one month from today's date. The appellant shall deposit the remaining purchased money amounting to Rs.4062.50 on or before 10.1.2000. Failing which his suit shall stand dismissed.