' This judgment shall deal with and decide Writ Petitions Nos.4425 of 1996, 4426 of 1996, 4427 of 1996 and 4428 of 1996 and directed against a common order and involved identical issues.
2. Suit for possession through preemption filed by respondent No,3 was decreed by Assistant Commissioner/ Collector, Daska through judgment and decree dated 20-8-1985. Respondent No,3 as plaintiff was also directed to deposit decreed sale price in the Government treasury by 21-10- 1985 after deducting Zar-e-Punjum, if already deposited. Aggrieved of the price fixed in the decree, respondent No,3 filed an appeal before Additional Commissioner, Gujranwala Division,, Gujranwala, who by interim order dated 5-10-1985 suspended the operation of the impugned judgment and decree qua the payment of decretal amount, subject to deposit of Rs,5,000 by respondent No,3, after deducting Zar-e-Punjum. This amount of Rs,5,000 was deposited, whereupon, the suspension of the impugned part of the decree became operative.
3. The appeal was finally heard and dismissed by Additional Commissioner (Revenue)
Gujaranwala through judgment and decree dated 16-12-1989, but no specific order for deposit of the balance of the decreed sale price was made and no period for such payment was specified.
On 16-1-1990, petitioners made an application to the same Appellate Authority for amendment of the decree dated 16-12-1989 fixing a period and date for payment of the balance amount of Rs,5,000 or to allow respondent No,3 to deposit the said balance amount by extension of date.
During pendency of this application, respondent No,3 made another application on 24-1-1990 for an interim order to permit deposit of Rs,5,000. This application was accepted and respondent No,3, by an interim order dated 30-1-1990, was allowed to deposit the said amount at his own risk. On 31- 1-1990, respondent No,3 submitted challan form for approval, which was ,approved and handed over to him. Deposit of Rs,5,000 as the balance price was made on 1-2-1990. Respondent No,3's first application dated 16-1-1990 was decided by Additional Commissioner (Revenue) Gujranwala by order dated 27-1-1990 observing as under:- "After hearing the arguments of the learned counsel for the parties and perusal of the record I am of the view that to prescribe time limit in such cases is the mandatory provisions of law and the Courts of original jurisdiction or the Appellate Courts are required to specifically mention the date up to which the decretal amount is to be deposited so that in case of default of the order penal action be involved against the defaulter. In this case the omission is on the part of the Court and the same is rectified by reviewing the orders passed on 16-12-1989, to the extent that the appellant Abdul Aziz is allowed to deposit the remaining amount of the decree up to 31-1-1990."
4. Since through the above said order dated 27-3-1990, Additional Commissioner (Revenue)
Gujranwala had fixed/allowed deposit up to 31-1-1990 (a date which had long passed), therefore, the respondent No,3 made an application for rectification of the said error by terming it as a clerical mistake with the submission that date of 31-1-1990 got transcribed in the order by a mistake instead of 31-3-1990, because the order was passed on 27-3-1990. Additional Commissioner (Revenue), Gujranwala by order dated 23-8-1990 dismissed the said application on the basis that he had orally allowed a time of 45 days when he passed appellate judgment and decree dated 16-12-1989 and since the said 45 days expired on 31-1-1990, therefore, there was no justification to extend time even by one more day. Aggrieved therefrom, respondent No,3 challenged the said order before the Board of Revenue, Punjab through. R.O.R. No,1782 of 1990.
5. Petitioners had, in the meanwhile, also filed R.O.R. No,587 of 1990 against order, dated 27-3-1990.
Respondent No,1 i,e, Member, Board of Revenue, Punjab, Lahore accepted revision petition filed by respondent No,3 and dismissed revision petition filed by the petitioners by his order dated 30-1- 1996. Through this order, respondent No,1 validated deposit of the balance amount made by respondent No,3 on 1-2-1990 and also held that it was the duty of the Appellate Court to fix a fresh date and allow fresh time to respondent No,1 for deposit of the balance of the sale price. Petitioners through this Constitutional petition have challenged the above said order dated 30-1-1996.
6. Learned counsel for the petitioners submitted that respondent No,1 erred at law by holding that the Appellate Court was bound to fix a fresh time for deposit and by validating the deposit made by respondent No,3, because upon non-fixture of such time in the appellate judgment and decree, the Appellate Court of Additional Commissioner (Revenue), Gujrawala became functus officio and also had no power to extend or fix any time and his order dated 27-3-1990 was without jurisdiction.
It was further submitted that upon suspension of the impugned decree by the Appellate Authority through order, dated 5-10-1985 and dismissal of appeal on 16-12-1989, respondent No,3 still had 16 days of unexpired period as originally fixed by Assistant Commissioner/Collector, to deposit the balance of the sale price and upon non-availing of this time, the suit stood dismissed. Reliance was placed on the cases reported as PLD 1966 SC 983, 1982 SCM R 824 and 1998 SCM R 1121. It was also contended that the revision filed by respondent No,3 before the Board of Revenue was beyond time and application for condonation of delay was filed belatedly, but respondent No,1 failed to attend to this aspect of the matter.
7. Learned counsel for respondent No,3 supported the impugned order and stated that it was a fatal omission of the Appellate Court, for which a litigant/respondent No,3 cannot be made to suffer and that it was the duty of the Appellate Court itself to correct accidental or clerical errors or omissions occurring in the appellate judgment and decree in terms of section 153 of the Civil Procedure Code.
8. I have examined the record and have also attended to the arguments of the learned counsel for the parties. It has not been denied that it was the duty of the appellate Court to allow a reasonable time for deposit of the sale price, but if not granted at the time of final decision of the appeal, the unexpired period of the original time frame fixed in the original decree was to be treated as the reasonable time. In the case of "Khurshid Akbar v. Mian Manzoor Ahmad and another" (1982 SCM R 824), which was relied upon heavily by the learned counsel for the petitioner, six days of the unexpired period was held to be a reasonable period for the deposit. Learned counsel for the petitioners while placing reliance upon this case, over looked the fact that in this case, the learned District Judge recorded an express finding that the time of six days of the unexpired period was sufficient for the petitioner to deposit the balance amount. In the present case, no such finding was recorded that the petitioners had 16 days to deposit the balance amount.
9. Be that as it may, the Hon'ble Supreme Court of Pakistan in the case of "Dolt Muhammad and another v. Nazar Hussain Khan and others (1984 SCM R 325) discussing the case of "Shah Wali v.
Ghulam Din" (PLD 1966 SC 983) also referred to the cases of "Ansari Brothers v, Holy Trinity Church Trust (PLD 1971 SC 700) and "Khurshid Akbar v. Mian Manzur Ahmad and another" (1982 SCM R 824), with favour to state that "the reasonable time view of minority opinion' in the Shah Wali's case gained acceptance in the above cases and upheld the principle that non-penalizing the plaintiffs for the delay "in deposit during circumstances of the appeal", was sound exercise of discretion.
10. In the case of "Bhai Khan v. Allah Bukhsh" (1986 SCM R 849), the Hon'ble Supreme Court of Pakistan upon considering the entire case law on the subject was pleased to hold that:--
(i) "Appellate Court has power to extend time for payment of the balance pre-emption amount during the appeal or while dismissing it or even after the dismissal of appeal";
(ii) "Normally the Appellate Court should grant reasonable time while dismissing pre-emptors appeal"; and
(iii) Refusal to exercise its discretion in favour of pre-emptor/appellant should be exercised in exceptional cases.
10. The present case when viewed in the perspective shows that although the Appellate Court was not conscious of its duty to fix reasonable time while dismissing the appeal, 'yet exercised its discretion to extend the time uptil 31-1-1990. The discretion exercised by the Appellate Court in favour of the preemptor/respondent No,3 to enlarge time was within its jurisdiction. However, the Appellate Court through order passed on 27-3-1990 granted time upto 31-1-1990 which stood expired 55 days prior to passing of the extensiomorder. This part of the order dated 27-3-1990 was capricious, legally mala fide, ineffective and a nullity in law. While exercising the principle of extension in favour of respondent No,3, the Appellate Authority fixed a wrong date which should have been corrected on its own instead of supporting its wrong order through another order dated 23-8-1990 passed in review. The Member, Board of - Revenue, therefore, through impugned order dated 31-1-1996, only corrected the gross error committed by respondent No, 2 in his order dated 27-3-1990. To issue a writ against the impugned order will amount to upholding a void, mala fide, capricious and arbitrary order dated 27-3-1990 passed by Additional Commissioner, (Revenue), Gujaranwala Division, Gujranwala. Law is well-settled that a writ can be refused against an order, which only corrects an invalid and incompetent order of a subordinate forum, even if the impugned order itself it without jurisdiction.
In view thereof, there is no justification to interfere in the impugned order and issue a writ there against. As such, these petitions are dismissed with 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.