' This civil revision is directed against the judgment and decree dated 26-6-1994, passed by the District Judge, Sialkot, dismissing the appeal against the judgment and decree dated 22-7-1984, whereby the suit filed by the petitioner for possession through pre-emption of the land 128 Kanals, 11 Marlas was decreed against the respondents-defendants on payment of Rs,84,800 and the petitioner-plaintiff was directed to deposit the abovesaid amount after deducting Zar-e-Panjam if already deposited by him on or before 17-9-1984 failing which the suit of the plaintiff shall stand dismissed.
2. Brief facts of the case are that Habib Ullah alias Habib was the owner of the land measuring 128 Kanals and 11 Marlas Khata No,63/84" Khasra Nos. 2257, 2258, 2259, 2264, 2265, 2266, 2268, 2271, 2281, 2282, 2284, 2285, 2469, 2472, 2473, 2496, 2497, 2498, 2507, 2512, according to the Register Haq Daran-e-Zamine, for the year 1975-76, situated in Mauzia Sejowal, Tehsil Pasroor, District Sialkot. The abovesaid land was sold through registered sale-deed dated 15-1-1980 by the said vendor for a fictitious sale price of Rs,80,000 in favour of Muhammad Yousaf, Shaukat Ali, Abdur Rashid and Muhammad Rafique respondents, whereas only Rs,55,000 was actually paid. The petitioner filed a suit for possession through pre-emption on 13-1-1981 being the real son of vendor and also as owner in Tarrf, Patti, Deh and disputed Khata.
3. The suit was contested by the defendants-respondents by filing their written statement. They raised an objection that the suit has been incorrectly valued and that Rs,80,000 were actually paid as sale price of the suit to the vendor. On merit it was denied that the petitioner-plaintiff has superior right of pre-emption. From the divergent pleadings of the parties the following issues were framed by the learned trial Court:-
(1) Whether the plaintiff possesses superior right of pre-emption? OPP.
(2) Whether a sum of Rs,80,000 was fixed in good faith as the Sale price of the suit land or was actually paid? OPD
(3) If not so what was the market value at the time of sale? OP Parties.
(4) Whether the suit has not been correctly valued for the purposes of court-fee and jurisdiction?
OPD.
(5) Whether the defendants are entitled to receive the expenses of registration of sale deed etc. In case the suit is decreed? OPD.
(6) Relief.
4. As regards the superior right of pre-emption it was decided that the petitioner is the son of Habib Ullah vendor on the basis of birth entry Exh.P4, therefore, he has the superior right of pre-emption.
Regarding Issue No,2 about the sale price it was held that Rs,80,000 was paid by the vendee, on the basis of sale-deed Exh.D1 and agreement to sell, Exh.D2. Issue No,5 was decided in favour of the ,defendant. No finding was recorded on Issue No,3 and it was held that the suit was correctly valued for the purposes of court-fee and jurisdiction. Consequently it was answered against the defendants. Resultantly vide judgment and decree dated 22-7-1984, the suit was decreed in favour of the petitioner subject to the payment of Rs,84,800 including Zar-e-Panjam and costs of registration of the sale-deed. The plaintiff-petitioner was directed to deposit the abovesaid amount after deducting Zar-e-Panjam if already deposited by him on or before 17-9-1984. No appeal was filed by the vendee-respondent-defendant. However, the petitioner feeling aggrieved regarding the sale price on Issue No,2, filed the appeal before the learned District Judge on 29-8- 1994. The same was admitted for regular hearing on 30-8-1984 by the learned Additional District Judge, who passed the order: "Heard. To be registered. Notice to respondents for 27-9-1984. Record of the trial Court be summoned for this date. Decretal amount to the extent of Rs,25,000 be not paid to the respondents."
5. However, the petitioner deposited the amount to the extent of Rs,55,000 as sale price and Rs,4,800 as incidental charges before 17-9-1984. However, the appeal was dismissed by the learned District Judge, Sialkot, vide judgment and decree dated 26-6-1994, who observed that in fact the petitioner-pre-emptor failed to deposit the pre-emption money within time allowed by the learned trial Court. The operation of which was never suspended and had entailed in dismissal of the suit as pre-emption money was not paid within time specified in the decree and there was no valid extension of time, the suit stood automatically dismissed by force of compulsive provisions contained in Order XX, Rule 14, C.P.C.
6. Malik Amjid Parvaiz, the learned counsel for the petitioner has argued that the petitioner challenged the decree to the extent of sale price passed in respondent's favour. He had also sought interim relief in the nature of 'stay' but on account of technical error based on innocent mistake in the stay order, the petitioner could not deposit an amount as directed by the learned trial Court because the appeal was filed much before the expiry of the time granted by the learned trial Court to deposit the amount on 29-8-1984 which was admitted on 30-8-1984 and the learned First Appellate Court passed the order that decretal amount to the extent of Rs,25,000 be not paid to the respondents. The learned counsel has relied on the case reported in Bhai Khan v. Allah Baldish 1986 SCM R 489, to contend that the Appellate Court even when dismissing the appeal in a pre-emption matter should grant a reasonable time to the successful pre-emptor for depositing the amount. Further contends that in this case the Appellate Court could have granted reasonable time because there were no exceptional circumstances not to exercise discretion in favour of the petitioner, who was a minor and was pursuing the case through her mother Mst. Rehmat Bibi, a Pardanashin lady, who was misled by the interim order dated 30-8-1984, whereby it was ordered that decretal amount to the extent of Rs,25,000 be not paid to the respondents.
7. On the other hand, the learned counsel for the respondents Ch. Muhammad Nawaz Sulehra, Advocate, argued that the petitioner was directed to deposit the decretal amount of Rs,80,000 alongwith the incidental charges of Rs,4,800 before 17-9-1984. In view of the matter, the decree was not awarded in favour of the petitioner and there was no valid extension of the time. The suit stood automatically dismissed under Order XX, Rule 14, C.P.C. He has relied on the cases of Haji Nawaz reported in 1976 SCM R 502 and 1988 CLC 551 to contend that if payment of the pre-emption money was not paid within time specified in the decree and there is no valid extension of the time, the suit stood automatically dismissed.
8. The pivotal and legal question for determination for this Court is whether the suit of the petitioner automatically stood dismissed on 17-9-1984 when he failed to deposit the full amount of Rs,80,000 in compliance with the judgment and decree dated 26-6-1994 when admittedly through an interim order dated 30-8-1984, the appeal of the petitioner was admitted for regular hearing.
Record of the learned trial Court was summoned and it was directed that the decretal amount to the extent of Rs,25,000 be not paid to the respondents. There was dispute about the actual price of the land in dispute between the parties whether the Appellate Court while deciding the appeal gave reasonable time to the petitioner-pre-emptor and in that examination, the refusal td' grant time could be only in exceptional case and whether there was an exceptional circumstance to exercise discretion otherwise in this case. So on the controversy between the parties provisions of section 22 of Punjab Pre-emption Act (I of 1913) read with provision of Order XLI, Rule 33 are relevant.
Section 22 of Punjab Pre-emption Act (I of 1913) read as follows:-- "22(1). In every suit for pre-emption the Court shall at or at any time before the settlement of issues require the plaintiff to deposit in Court such sum as does not, in the opinion of the Court exceed one-fifth of the probable value of the land or property, or require the plaintiff to give security to the satisfaction of the Court for the payment, if required of a sum not exceeding such probable value within such time as the Court may fix in such orders."
' Order XLI, Rule 33, C.P.C.--33. Power of Court of Appeal.--The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection: (Provided that the Appellate Court shall not make any order under section 35-A in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order)."
9. There is no dispute about the fact that the Appellate Court had the power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require and this power may be exercised by the Court.
The combined interpretation of section 22 of the Pre-emption Act (I of 1913) and Order XLI, Rule 33 of C.P.C. Order V of 1908 would show that the preemptor is bound to deposit pre-emption money within the stipulated time granted by the learned trial Court in compliance with the provision of Order XX, Rule 14 of the C.P.C. And failure to make payment, the suit is liable to be dismissed. On the touch stone of Order XLI, Rule 33, C.P.C. The Appellate Court has the discretion to grant reasonable time to pre-emptor while dismissing the appeal. But in exceptional case the Court can refuse to exercise its discretion in favour of pre-emptor. In case reported in PLD 1982 SC(AJ&K) 49, it was held that the provisions regarding the right of preemption are to be strictly construed and followed, therefore, it was obligatory upon the plaintiff to follow the provision of Order XX, Rule 14 of the C.P.C.
In case of Manzoor Ahmad v. Rehmat Ali and 4 others 1999 M LD 135, the suit of the plaintiff-pre- emptor was dismissed, who paid the, amount to the vendee outside the Court instead of depositing the same in the Court. It was held that it was not valid deposit within the meaning of section 22 of Pre-emption Act and Order XX, Rule 14 of the C.P.C. There is no dispute about the fact that the Appellate Court can extend time for depositing the pre-emption amount both during the pendency of the appeal before it, as well when appeal is dismissed. However, this power is subject to certain restriction and in the discretion of the Appellate Court which has to be exercised in each case according to the facts of that case. In case reported as Bhai Khan v. Allah Bakhsh 1986 SCM R 849, the Honourable Supreme Court held that the power to extend the time for deposit of the amount was available to the Appellate Court but since the pre-emptor did not have a sufficient fund and it was merely interested in gaining time by filing appeal 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 abovementioned case for depositing pre-emption amount, the Surpeme Court did not interfere in the Order of the High Court and dismissed the appeal. The question of depositing of pre-emption amount and to grant reasonable time to pre-emptor while dismissing his appeal came for consideration before the Hon'ble Supreme Court in case of Muhammad Arshad v. Ch. Fazal Haq and 5 others 1991 SCM R 2149 and it was held that Appellate Court has to grant reasonable time to the pre-emptor but it can be in exceptional case, refuse to exercise its discretion in his favour. It was a case of two rival preemptors. Both were parties before the Appellate Court and subject- matter had been re-opened in the appellate jurisdiction where in appeal in one or the other case and the Hon'ble Supreme Court made a distinction in the case of Bhai Khan 1986 SCM R 849 accepted the appeal, allowed 10 days' time for making the necessary deposit. In case reported as Muhammad lqbal v. Anwaar and another 1997 M LD 631, the Court while interpreting the provision of Order XX, Rule 14, C.P.C. Endorsed the view that the Appellate Court was legally not correct while dismissing the appeal against the sale price has not fixed time for depositing of pre-emption money. High Court extended time on the application of the pre-emptor which was maintained by the Honourable Supreme Court. On the touchstone of the provision of section 22, Punjab Pre- emption Act (I of 1913), Order XX, Rule 14 and Order XLI, Rule 33 of the C.P.C. And the case of Muhammad Arshad 1991 SCM R 2149, the case has been examined and I have come to the conclusion that the learned District Judge was legally not correct for not to exercise his discretion in favour of the petitioner to give reasonable time to the petitioner for depositing the pre-emption money. There was a dispute about the actual price of the land. The case of the petitioner before the learned trial Court was that in fact Rs,55,000 has been paid by the vendee to the vendor and Rs,80,000 has been incorporated in the sale-deed fictitiously to defeat the rights of the pre- emption. Sale price was disputed and contested. Decree was awarded and time was granted by the learned trial Court to deposit Rs,80,000 as sale price plus Rs,4,000 on account of incidental charges, the petitioner filed the appeal on 29-6-1984 but no appeal was filed by the, vendee. The Appellate Court passed an ambiguous order that decretal amount to the extent of Rs,25,000 may not be paid to the respondents. The petitioner in compliance with the judgment and decree dated 26-6-1984 deposited the sale price to the extent of Rs,55,000 plus incidental charges of Rs,4,800 before the stipulated time granted by the Court. The petitioner was minor and the case was pursuaded by Mst. Rehmat Bibi his mother. It is not the case of the respondents that the petitioner had no fund or that there was some mala fide on the part of the petitioner for not depositing the Rs,25,000 less than sale price of Rs,80,000 fixed by the learned trial Court in the impugned judgment and decree. Had been there any mala fide on the part of the petitioner then there would have not been any deposit of amount in the Court before the stipulated time. The Appellate Court has paid no intention to the postponing of the payment of the preemption money during the pendency of the appeal in clear manner. If proper mind would have been applied, the payment would certainly have been postponed by suspending the excess value of the suit land amounting to Rs,25,000 and who was at fault, the Court or the counsel for the appellant when the 25,000 rupees was not deposited, is not necessary to determine in this case because on this point decided in case of Bhai Khan the Appellate Court was required even in case where no application was made for interim order to examine when deciding the appeal to give reasonable time to the appellant-pre-emptor. In that examination the Hon'ble Supreme Court held that the refusal to grant time falls in the category of exceptional cases. In case of Muhammad Arshad 1991 SCM R 2149, the Honourable Supreme Court held that the Appellate Court was bound to give reasonable time because there was no exceptional circumstance to exercise discretion otherwise. In this view of the matter, relying on the case of Muhammad Iqbal v. Anwaar Anwar 1997 M LD 631 and following Muhammad Arshad's case 1991 SCM R 2149 I am constrained to hold that in this case the Appellate Court was bound to give reasonable time because there was no exceptional circumstance to exercise discretion otherwise. The first Appellate Court has committed material irregularity and has not exercised its jurisdiction vested in it while not giving the time to the petitioner for deposit of the amount.
10. For the reasons stated above, this revision 'petition is bound to succeed. The judgment and decree of the learned District Judge dated 26-6-1984 is set aside. The judgment and decree of the learned trial Court is .Restored. The petitioner is given 10 days' time for making the necessary deposit. There shall be no order as to the costs. The revision petition is allowed.