ABDUL SHAKOOR PARACHA, J. -- Through this writ petition the petitioner has assailed the order dated 21.11.1990 passed by the Senior Civil Judge and order dated 21.3,1991 of the learned District Judge, Khushab.
2. Brief facts of the case are that petitioner sought for possession through pre-emption, and the suit was decreed by the learned Civil Judge, Sargodha on 20.5.1974 on payment of Rs. 32,000/- as pre-emption money, which was directed to be deposited after deducting Zar-e-Panjum by 20.7.1974. Feeling aggrieved with the quantum of pre-emption money the petitioner preferred an appeal praying for reduction to Rs. 8,000/-. The Appellate Court admitted the appeal for regular hearing and extended the time for making deposit of money upto 23.10.1974. The appeal came up for hearing before the learned District Judge on 22.10.1974, when no one appeared for the appellant.
The appeal was adjourned to the following date, i.e. 23.10.1974, on which date again none entered appearance for the appellant. The learned District Judge, therefore, dismissed the appeal with the observation that "the pre-emption money had not been deposited despite the extension of time".
The petitioner challenged the appellate order in second appeal bearing R.S.A. No. 69/1975, which too was dismissed on 24.9.1988. The petitioner took the matter before the Hon'ble Supreme Court, but with no better result as his petition for leave to appeal was also dismissed on 18.6.1990.
3. Having remained unsuccessful up to the Supreme. Court of Pakistan in getting the pre-emption money reduced; the petitioner made an application before the learned Senior Civil Judge, Sargodha on 2.7.1990 for permission to deposit the preemption money as fixed by the Trial Court.
This application was rejected by the learned Senior Civil Judge vide order dated 21.11.1990. The petitioner filed a revision petition, which was also dismissed by the learned District Judge, Khushab on 21.3.1991. Hence this Constitutional petition before this Court has been filed to assail the validity of the orders _ dated 21.11.1990 and 21.3.1991 passed by the learned Senior Civil Judge, Khushab and the learned District Judge, Khushab, respectively.
4. The learned counsel for the petitioner has argued that the time fixed by the Trial Court for deposit of pre-emption amount was extended by the District Judge at the time of preliminary. Hearing but while dismissing the petitioner's appeal directed against the quantum of pre-emption money; the first Appellate Court did not fix any date by or before the petitioner was to make deposit. Similarly, neither this Court nor the. Hon'ble Supreme Court specified any time for depositing the amount in question. According to the learned counsel, in the circumstances, the petitioner could well-deposit the pre-emption amount within reasonable time after dismissal of his petition for leave to appeal by the Hon'ble Supreme Court of Pakistan. In support of his contention, the learned counsel has relied upon Haji /shtiaq Ahmad and 2 others Vs. Bakhshaya and 7 others (1976 SCM R 420).
5. On the other hand, the learned ,counsel for the respondent has argued that the petitioner approached the Hon'ble Supreme Court and his application for leave to appeal was dismissed by the Hon'ble. Supreme Court on 18.6.1990. The petitioner again filed an application before the learned Senior Civil Judge on 2.7.1990 for permission to deposit the pre-emption money. According to the learned counsel, when the petitioner had failed to deposit the pre-emption money within the time granted by the learned Trial Court and by the learned District Judge in whose Court the first appeal was pending, the learned District Judge dismissed his appeal on the ground of non-deposit of pre-emption money and this order was maintained by the High Court and the Hon'ble Supreme Court. The fresh application moved by the petitioner before the learned Sr. Civil Judge was not maintainable and the learned Senior Civil Judge has rightly dismissed the same and as there was no material irregularity committed by the learned Sr. Civil Judge therefore the learned District Judge, Khushab also rightly dismissed the revision petition filed by the petitioner.
6. I have heard the learned counsel for the parties and also gone through the material on the file. It is clear from the record that the petitioner had failed to deposit the pre-emption money within the time granted by the learned Trial Court. The District Judge admitted the appeal of the petitioner vide his order dated 25.6.1974 and while admitting the appeal and issuing notice to the other party for 22.10.1974, he also issued notice of the stay application to the other side for 6.7.1974 as well as summoned the record. The last date fixed by the Court below for depositing pre-emption money was 22.7.1974. Nobody appeared on behalf of the petitioner on 23.10.1974 when the appeal was called for hearing by the District Judge. Since no pre-emption money was deposited by the petitioner till 22.10.1974, therefore, the suit of the plaintiff was dismissed.
7. To my mind, the case of Haft lshtiaq Ahmad (supra) relied upon by the learned counsel for the petitioner is not applicable to the facts and circumstances of this case. In the said case the suit was decreed in favour of the pre-emptor. An appeal was filed by her for reduction in sale price and by a specific order dated 24.2.1968 the learned District Judge had passed an order allowing the plaintiff-appellant to furnish security for the preemption money which was not complied with and the appeal was ultimately dismissed by the District Judge. The plaintiff-appellant on her on accord deposited the amount in question in the Trial Court after expiry of the period granted by it while decreeing the suit on 6.6.1969. Her application for execution of the decree was dismissed on the ground that pre-emption money had not been deposited within time fixed in the decree and non- extension has been alleged by the Appellate Court. In that eventuality the decree-holder moved an application under Section 152, CPC for amendment of the decree, which was allowed by the District Judge while making reliance on the case reported as Shah Wall Vs. Ghulam Din (PLD 1976 SC 983).
The appeal of the vendee was accepted by this Court in which it was held that the case was covered by the dictum of the Supreme Court in Ansari Brothers Vs. Holy Trinty Church Trust (PLD 1971 SC 700) to the effect that the omission to lay down a time limit in the appellate' decree was not such as could be corrected under Section 152, CPC and that in such cases the deposit was to be made within reasonable time. The petition filed by the decree-holder was dismissed by the Hon'ble Supreme Court. The Hon'ble Supreme Court while dismissing the petition for special leave to appeal in the case Haji Ishtiaq Ahmad and 2 others Vs. Bakhshaya and 7 others (1976 SCM R 420) held:- "No explanation was furnished by the pre-emptor for her failure to make the deposit for a period of one month and 18 days after the dismissal of her appeal. The learned Additional District Judge granted her extension of time for this period without applying his mind to the circumstances which had prevented the deposit from being made soon after the dismissal of the appeal. The High Court was, therefore, right in the circumstances, in holding that the deposit had not been made within a reasonable time."
Applying the case of Haji /shtiaq Ahmad (supra), relied upon by the petitioner, I am constrained to hold that the petitioner has not made out any case for grant of time on the ratio of rule of 'reasonable time' laid down in earlier case of Shah Wall Vs. Ghulam Din (PLD 1976 SC 983). The reasons are that the petitioner filed the appeal against the judgment and decree of the Senior Civil Judge, Sargoctha dated 23.10.1974. The plaintiff was directed to deposit the amount in Court after deducting 1/5th preemption money, if any paid, by 22.7.1974, otherwise his suit was deemed to be dismissed. This order of the Senior Civil Judge dated 20.5.1974 was not suspended by the learned District Judge while admitting the appeal for regular hearing and issuing notice on 'the stay application to the other side for 6.7.1974 and summoning the record. However, when the case came up for hearing on 22.10.1974 the petitioner and his counsel were absent and nobody appeared on 23.10.1974 as well. It was also pointed out that no pre-emption money was deposited. It is thus clear that the by the Trial Court in favour of the pre-emptor vide judgment dated 20.5.1974 was no more in field and there was no question for extension of time for deposit of the pre-emption money.
8. There is no doubt that the Trial Court has jurisdiction to extend time for deposit of the pre- emption money under Section 148, CPC, but, to my mind, to extend time in a decree is within the jurisdiction of the Trial Court and the Appellate Court provided the decree is alive. In the present case, the time was granted to the pre-emptor-petitioner to deposit the pre-emption money till 20.7.1974 and when the same was not done there was no decree in favour of the petitioner. Even the granting of extension of time for deposit of purchase price in Court under Section 148, CPC is the discretion of the Trial Court. Apart from the case of Haji Ishtiaq Ahmad and 2 others (1976 SCM R 420) there are cases like:- PLO 1982 SC 282 - Ghulam Muhammad and another v. Lrshad Ahmad and another.
1992 SCMR 824 - Khurshid Akbar v. Mian Manzur Ahmad, etc. 1984 SCM R 325 - Dost Muhammad and others Vs. Nazar Hussain Khan and others.
1986 SCM R 849 - Bhai Khan v. Allah Bakhsh etc. 1990 SCM R 1571 Hakim All and another v. Iftikhar, Ahmad Khan.
1991 SCM R 2149 Muhammad Irshad v. Ch. Fazal Haq and 5 others.
Having dealt with the question of petitioner's right to deposit the pre-emption money within a reasonable time, I would propose to attend the point of discretion of the Court for extend of time to deposit the pre-emption money. Exercise of discretion was always a delecate matter and was difficult for trial, appellate or revisional Court, to pass order for deposit of the pre-emption money after the expiry of original period. However, if the discretion, which was judicial act, was found to have been exercised arbitrarily or on wrong notion or conception of law it was equally the-duty of an appellate or revisional Court to interfere with it and pass an order which would be in the circumstances of the case in consonance with justice and in accordance with law. In case reported as Bhai Khan Vs. Allah Bakhsh and another (1986. SCMR 849) is a clear authority regarding exercise of power and discretion for allowing extension of time for deposit of pre-emption money.
For facility of reference, a passage from the above-referred case is extracted below:- "From the foregoing discussion, it is clear that the proposition that the Appellate Court has power to extend time is not disputed by the High Court. All that it has held this will be exercised in fit and suitable cases and that the present case was not such a case. The submission of the Appellate Court, however, is that in view of this Court's judgment in Khurshid Akbar v. Mian Manzoor Ahmad (1982 SCM R 824) the Appellate Court is bound while dismissing the pre-emptor-appellant's appeal to grant 'reasonable time' to him to deposit the balance of the pre-emption amount in every case.
We do not agree and we may clarify that although normally the Appellate Court should grant 'reasonable time' to the pre-emptor in cases of this kind while dismissing his appeal but it can, in exceptional cases, such as the present, refuse to exercise its discretion in his favour. We share the view of the High Court that the pre-emptor did not have sufficient funds and was merely interested in gaining time by filing appeals, having hardly any merit and it was, therefore, not in the interest of justice to have extended time in favour of the pre-emptor in this case for depositing the pre- emption money."
It is manifest from the above-stated ruling that though ordinarily the Court should grant 'reasonable time' while dismissing the appeal or revision, as the case may be, yet in exceptional cases, in exercise of discretion the Court can also refuse to extend time. In the present case, till today the petitioner has not .Deposited the pre-emption money nor there is any application for extension of time for deposit of the pre-emption money under Section 148, CPC. The only application, which was moved on 2.7.1990 for permission to deposit the pre-emption money after dismissal of petition for leave to appeal on 18.6.1990, has not stated any ground for extension of time. There is no vested right available to the petitioner for deposit of the pre-emption money., For what has been discussed above, this writ petition has no force and the same is dismissed with costs.