TASSADUQ HUSSAIN JILANI, J.- This judgment shall dispose of R.S.A. No. I0O of 1988 and RSA No. 101 of 1988 as the sale- deeds which were sought to be pre-empted are of the same date, the land involved is adjacent, the parties are the same and the evidence led is also similar.
2. Through these Regular Second. Appeals the appellants, have challenged the judgment-and decree dated 24.2.1988 passed by Mr. Muhammad Aslam Khan, learned Addl. District Judge, Sahiwal vide which the judgment and decree of the learned Trial Court dated 1.11.19178 was set aside and the plaints of the appellant's suits for possession through pre-emption were rejected under Section 22(4) of the Punjab Pre-emption Act.
3. Facts giving rise to the. Instant appeals are that the appellants/plaintiffs pre-empted the sale evidenced through the registered sale-deed dated 26.2.1976 for a sum of Rs.57,375/- (in Appeal No. 100/1988) and the registered sale-deed dated 26.2.1976 for a sum of Rs. 1,11,375/- (in Appeal No. 101/1988) on the basis of the alleged superior right of pre-emption claiming to be collateral of the vendor and owner of the land in the village, It was further averred that the afore-referred sale price hao been manipulated and the land was purchased for Rs. 19357/- (in Civil Suit No. 64/1977) and.
Rs.71,275/- (in Civil Suit No. 63/1377). In the written statements find by the respondents/defendants preliminary objection was raised that the suits were liable to be dismissed as the ' Zar-i-Panjam' had not been deposited within the time as directed by the Court, that the Court-fee had not been properly find, that the appellant/Plaintiff was himself party to the sale and did not want to purchase the same, that the appellant/Plaintiff was owner of the more than 800 P.I) and that the sale price shown in the sale-deeds was the actual price paid by the respondent/defendant.
4. In terms of the divergent pleas (in both the suits! The following issues were framed:- #tbs (RSA No. 101/1988)
1.1s there sufficient cause to condone the delay in the deposit of the 1 /5th amount? _ 7 OPP ls the suit valuation for the purposes of Court- fee and jurisdiction is incorrect? OPD #the #tbs 63/77.
(RSA No. 100/1988)
Is there sufficient cause to condone the delay in the deposit of the 1 /5th amount?
OPP Is the suit valuation is incorrect? OPD. #the Issues in Civil Suit No. 64/77 Issues in Suit No. Has the plaintiff superior right of pre-emption? OPP. ' t 3. Has the property not been properly described? OPD.
Has^the plaintiff waived his right? OPD.
4. Has the plaintiff superior right of pre-emption? OPP Were Rs. 57,375/- find in good faith or paid as sale price? OPD.
5. Has the plaintiff waived his right?
OPD.
What was the market price? O.P. Parties.
6. Were Rs.1,11,375/- find in good faith or paid as sale price?
OP. Parties Have the defendants improved the suit land at a costs of Rs. 10,557/-? OPD.
7. What was the market price at the time of sale? OP. Parties.
Has the suit land not been properly described? OPD.
8. If the vendees incurred Rs. 16,625/- in the improvement of the land? OPP.
Relief.
9. Relief. {{TEXT MISARRANGED}}
5. The appellant/Plaintiff examined Muhammad Quraish, Bank Manager as PW.1. He himself appeared as PW.2, Khushi- Muhammad appeared as PW-3. Documentary evidence in the shape of Exh. P.1 (statement of annual net profits), Exh. P.2 (copy of the pedigree table), Exh. P.3 (copy of the registered sale-deed), Exh. P.4 (copy of mutations), Exh.P.B (copy of Jamabandi) and Cxh. P.6 (copy of Jamabandi). 0n the other hand, the respondent/defendant produced Muhammad Ali, appellant No. 1 as DW. 1 Barkat Ali as DW.2, Abdul Rauf as DW.3 and the original sale-deed as Exh. D.1 and a receipt Ex. D.2. The appellant also produced Syed Mumtaz-ul-Hassan as PW.4 and Muhammad Yar as PW.5 in rebuttal.
6. The learned Trial Court decreed the suit on the basis of its findings on issues Nos. 1-, 2, 3 and 4.
Issue No. 5 was however decided in favour of the respondent/defendant. The learned lst Appellate Court vide the impugned judgment set aside the Trial Court's judgment on the basis of its findings on issue No. 1 and held that the extension of time given by the learned Trial Court vide order dated 5.4.1977 was bad in law as in both the civil suits the respondents/defendants had already appeared and the order was passed without hearing the defendants, It was further observed that in terms of the last extension granted by the learned Trial Court the appellants/plaintiffs were allowed to deposit the amount before 12-4-1977. The requisite challan form was passed on 9.11.1977 but the appellant/Plaintiff did not approach the Bank till 11.4.1977 at 2-00 p.m. This conduct it was held reflected lack of vigilance and as the appellant failed to deposit the amount before 12.4.1977 the condonation of delay made by the learned Trial Court was bad in law.
7. The learned counsel for the appellant has challenged the judgment and decree, of the learned lst Appellate Court oh the ground that the appellant/Plaintiff could not deposit Zari-Punjam in time for the reasons beyond his control, that the learned Court had ample powers to extend time for the deposit of Zar-i-Punjam; that the two extensions granted for the deposit of Zar-i-Pan]jam i.e. 15.3.1977 and 5.4.1977 were rightly granted had been acted upon, were never challenged by the respondent/defendant either in appeal or revision; that in terms of the last extension granted the appellant/Plaintiff visited the Bank on 11.4.1977 but the business hours of the Bank were over and on the following day, i.e. 12.4.1977, the Zar-i-Punjam was deposited. On 19.4.1977 the appellant/Plaintiff applied to the learned Trial Court for the condonation of one day's delay which was allowed; that in support of plaintiff's bona fide the Bank Manager appeared as PW.1. He admitted having issued the Bank certificate to the effect that the plaintiff visited the Bank on 11.4.1977. In the afore-referred circumstances, according to him, the judgment of the learned Appellate Court cannot be sustained and is against law declared by the superior Court, In support of the submissions made the learned counsel relied on the following:- A. I.R. 1938 Mad. 357(FB), 1988 SCMR 1996; 1996 SCMR 336; 1995 SCMR 192; PLD 1990 SC 60; PLD 1986 SC 150; PLD 1980 Lahore (DB) 110; 1972 SCMR 296; 1980 CLC 108 and PLD 1984 SC 289.
8. Learned counsel for the respondent/defendant, on the other hand, has defended the impugned judgment by submitting that the learned Trial Court allowed the extensions for despiting Zar-i- Panjum without notice and hearing the respondent/defendant notwithstanding the fact that the notices had already been served on the defendants, that the right of pre-emption is a pre-datory right and in case the plaintiff fails to deposit the Zar-i-Panjum in terms of the order of the Court a valuable right accrues to the defendant; that the defendant had objected to the extensions granted to the appellant/Plaintiff not only through the application bat also in the written statement find by it; that the appellant/Plaintiff failed to show that the Court was closed on 11.4.1977 and that he had approached the Bank on the said date for the deposit of Zar-i-Panjum; that the non-deposit of Zar-i- Panjum before 12.4.1977 was fatal and the plaint was liable to be /ejected. He added that in view of the previous contumacious conduct of the plaintiff, no subsequent condonation could have been granted to the plaintiff, In support of the submissions made learned counsel for the respondent/defendant relied on the following precedent case-laws:- 1977 SCMR 359; PLD 1965 S.C. 690, AIR 1934 Pesh. 3, PLD 1965 SC 1; PLD 1974 SC 134; 1984 CLC 3372, 1997 C.L.C. 1114; 1992 SCMR 1459 and 1970 SCMR 169.
9. Heard.
10. For a proper appreciation of the issues raised in these appeals it would be relevant to give the resume of the facts. The suit was instituted on 26.2.1977, the same day, the respondents/defendants were summoned for 19.3.1977 and it was directed that 1 /5th of the sale price shall be deposited before the said date. On 15.3.1977 the appellant/Plaintiff moved the Trial Court for the extension of time for depositing the Zar-i-Panjum as according to him, he could not deposit the same as the requisite amount had not been arranged. The precise ground urged in the application was as under:-
2. ......................................................................................... {{URDU MISS}} On the-afore-referred application he was allowed to deposit the Zar-i-Panjum before 6.4.1977. Just a day prior to 6.4.1977 i.e. On -5.4.1977, he moved yet another application for extension of time and the reason given was as follows:-
(1) ................................................................................... {{URDU MISS}} This application was also accepted without notice to the respondents/defendants and he was allowed to deposit the Zar-i- Panjum before 12.4.1977. The plaintiff could not deposit the amount before the afore-referred date. He deposited the amount on 12.4.1977 and on 19.4.1977 he gave yet another application for condonation of delay for depositing the amount. The precise reason given for the delay in depositing the amount in the said application was as under:-
(1) ....................................................................................... {{URDU MISS}} On 14.6.1977 the respondent/defendant find an application under Section 22(4) of the Punjab Pre- emption Act. In paras, 3, 4 and 5 of the said application it was specifically averred that the extension granted by the learned Trial Court on 15.3.1977 and 5.4.1977 were granted without any justifiable reason and that deposit the afore-going indulgence of the Court the plaintiff had failed to deposit the Zar-i-Panjum before 12.4.1977 and therefore, the suit may be dismissed. This application was dismissed vide order dated 18.7.1977 with the following observations:-- "If the vendees feel aggrieved against the grant of various extensions for the deposit of the 1 /5th amount there is in my view this Court must feel bound by its order and should not go back upon it and withdrew the indulgence shown to the plaintiff. Learned counsel for vendees when questioned, stated before me that he was insisting on the late deposit and not against extension, In the case of extensions of the remedy lies in appeal or revision but insofar as late ..Deposit is concerned the matter need not, in my view, be decided upon this application as issue No. 1 covers it. Application for condonation of delay is already on record. The plaintiff's version is that late deposit occurred due to refusal by the Bank to accept the amount beyond their business hours. This requires evidence and scrutiny of law. It would not, therefore, be just to decide the matter summarily. The application without prejudice to the issue No. 1 is dismissed."
11. As is apparent from the afore-referred order the. Learned Trial Court did not comment on the vires of the orders dated 15.3.1977 and 5.4.1977 vide which earlier extensions for the deposit of Zar-i- Panjum had been granted to the appellant/Plaintiff and with regard to the condonation of delay in depositing the Zar-i- Panjum on 12.4.1977 instead of on a date prior to that date he deferred the finding till the recording of evidence and thereafter he chose to from the issues.
12. The burden of proof of issue No. 1 was on the appellant/Plaintiff. The evidence led to prove this issue was PW.1 Muhammad Quraish, Bank Manager National Bank of Pakistan who stated that the plaintiff came to the Bank on 11.4.1977 at 2-00 p.m. To deposit Rs.22,275/-; that the Banking hours were from 9- 00 a.m. To 1.00 p.m., therefore, the amount was not accepted, In the cross- examination he denied the suggestion that the plaintiff had not gone to the Bank on 11.4.1977. With regard to the issuance of the Bank certificate he stated that on the following day he issued the Bank certificate and that "there was no fun in issuing the certificate on 11.4.1977". To corroborate his statement PW.4 Imtiaz Ali, one of the plaintiff himself appeared and stated that on 11.4.1977 he could not deposit the amount as the Banking hours had been closed as he visited the Bank at 2-00 p.m.
He added that on the said date he did not give any application to the Court. Further stated that on 11.4.1977 the Bank Manager told him that he could not accept the amount. However, he gave the plaintiff in writing that the plaintiff had come to deposit the amount in the Bank, In cross- examination he reiterated that on 11.4.1977 the Manager of the Bank had issued him the requisite certificate, In answer to a question he stated that it took him one and half hour in the Bank and that he reached the Court the same day at 4-00 p.m. And the Court had been closed. Further added that when he reached the Court he was not carrying the bank certificate issued by the Bank Manager.
13. A careful analysis of the evidence led by the appellant/Plaintiff would show that the same is in- consistent on material particulars. For the instance PW.1, the Bank Manager states that he issued the Bank certificate on 12.4.1977 whereas, PW.4 the plaintiff stated that the certificate was issued on 11.4.1977. This certificate was not exhibited to unable the defendant to cross-examine the witness on the bona fides of the said certificate, In written reply to an application find by the defendant for the dismissal of appellant's suit, the appellant in para 5 of the written reply (page 37 of the Trial Court's file) stated that on 11.4.1977 he went to the Tehsil Officer, Pakpattan Sharif to have the challan form passed for the deposit of Zar-i-Panjum, he reached the National Bank at 2-00 p.m'. And was informed that the Banking hours had been closed. He further added that on 11.4.1977 the Court was on leave and he could not gave an application for the extension of time either. However, this stand is belied not only by his own statement in Court but also by his application dated 9.4.1977 on which the learned Trial Court had allowed him to deposit the Zar-i-Panjum (Page 51 of Civil Suit No. 63).
This shows that the Court had passed the challan form on 9.4.1977, but despite that the plaintiff did not deposit the amount before 12.4.1977. There was no occasion for him to visit the Tehsil Office Pakpattan Sharif on 11.4.1977. The appellant/Plaintiff by his conduct had demonstrated that he was negligent in complying with the Court order and in depositing the Zar-i-Panjum in time. He was granted extensions twice. The first extension granted on 15.3.1977 could be condoned as the defendant had not been served but thereafter he was allowed second extension on 5.4.1977 by which date it is not denied by the appellant/Plaintiff that the defendant had been served. There is no cavil to the proposition that the Court has discretion to grant extension qua depositing the Zar- i-Panjum but this extension has to be allowed after hearing the defendant if the latter has been served and for valid reason. The second extension was sought merely on the ground that there had been a theft of plaintiff's car. Nothing was brought on record to show that this was factually correct.
No case for the alleged theft of case was registered. This indicated that the ground urged was a lie.
In Malik Barkat Ali Dogar v. Muhammad Sharif and others (PLD 1990 SC 60 at page 67) it was held as under:-- "The conclusion at which we have arrived is that no notice to the defendants is that no notice to the defendants is necessary in fixing the date for deposit or for extension of date or substitution of order of deposit, where the defendants have not been served and have not put in appearance in the proceedings. If the defendants have been served and are present and participating in the proceedings, then they have to be served with a notice and because any vested right accrues to them but because as parties present and participating in the proceedings they have to be associated with every procedural order passed with regard to the conduct of proceedings in the case. However, once a non-compliance of the deposit order has taken place and forfeiture or penalty has been incurred by the plaintiff, a vested right comes to accrue to the defendants and without notice to them the plaintiff cannot be relieved and even if relieved it must be subject to their objections and rights."
In Amir Ali v. The Additional District Judge, Jhang (1984 CLC 3372 and at page 3377) it was observed as under:-- "Extension of time under Section 22(4) for making deposit in Court may be granted to the plaintiff but for a good cause shown. Extension cannot and should not be granted in routine and as a matter of course to cover an obvious negligent act and wilful default of plaintiff. Anyhow, in cases brought for the exercise of preemption rights which have been judicially recognized as infringing on the freedom of contract and security of title by way of a pre-datory inroad, provisions of Section 22(4) have to be very strictly construed. Right of preemption being an artificial right should not be protected from defeat on technical and legal defects, especially when such defect is result of pre- emptor's own negligence."
The practice of granting frequent extensions for deposit of Zar-i- Panjum has been depreciated by this Court. At page 3378 of the afore-referred judgment it was held as follows:-- " Time for deposit of Zar-i-Panjum-Extension:~ Time for deposit given again and again, or indulgently without giving any cogent reason and without ascertaining as to whether cause shown was true and constituted a valid ground for extension--Such extension, held, amounted to putting a premium on plaintiff's negligence."
14. The extension granted vide order dated 5.4.1977 cannot be sustained and the plaint was rightly rejected by the learned lst Appellate Court. Even if this extension is held to be valid the subsequent conduct of the appellant in not depositing Zar-i-Panjum within the extended time i.e. Before 12.4.1977 further dis-entitles him to any relief in equity.
15 Ch. Imdad Ali Khan, Advocate, learned counsel for the appellant referred to P.L.D, 1957 Lah. 92; P.L.D. 1980 Lah. 110; 1980 CLC 108 and 1972 SCMR 296 to contend that the delay of one day in not depositing the Zar-i-Panjum before 12.4.1977 in terms of the last extension was rightly condoned by the Trial Court. The judgments to which reference has been made by the learned counsel are distinguishable. The factors which weighed with the Courts were either the plaintiff had demonstrated his bona tides or that was mistake about the date within which the amount was to be deposited, In PLD 1947 Lah. 92 the plaintiff/decree-holder was directed to deposit the amount within three months from the 31st of January, 1955 i.e. The last date for depositing the amount was 30th of April, 1955. The plaintiff as a matter of fact deposited the amount on 3rd of May, 1955 and explained the delay by submitting that on 30th of April, 1955 he went to the Bank with the amount in question at 11-00 a.m. But the Bank had already dosed the cash. He approached the Senior Civil Judge who was on leave. His counsel appeared before the District Judge the same day. The latter asked them to bring written application; when plaintiff returned with the application, it was past 1'0 clock, and the District Judge had already left. He went to another Civil Judge, and presented the money to him alongwith an application but he refused to accept the money and made an endorsement on the application that it be put up before the Senior Civil Judge. The next day i.e. The lst of May, was a holiday. On the 2nd of May, 1955, this application which contained a prayer for extension of time for making the deposit was put up before the Senior Civil Judge, which application was ultimately taken up on 3rd of May, 1955 and the same day he was allowed to deposit the amount.
In PLD 1980 Lah. 110, the amount was to be deposited before 27.5.1975. The plaintiff submitted challan form for the deposit of Zarpanjum on 24.5.1975, 25.5.1975 happened to be Sunday. The challan forms were returned by the Court on 26.5.1975 and the deposit was made on 27.5.1975. In the foregoing circumstances the delay of one day was condoned as the plaintiff had demonstrated his bona fide, In 1972 SCMR 296 the plaintiff was to deposit the zarpanjam before 24th May, 1968. On 23rd May, 1968 he moved an application for extension of time. The learned Trial Court extended time upto 31st May, 1968.
The amount was not even deposited on the 31st May, 1968 and instead the amount was deposited on the lst June, 1968. An objection was raised by the defendant that the suit merited dismissal as Zarpanjam had not been deposited within time. The plaintiff explained in the affidavit by stating that he could not deposit the amount oh 31st May, 1968 as he went to the Bank at 11-00 a.m. And the Bank had closed at 10-00 a.m. He also find a Bank certificate to the effect that on 31st May, 1968 the Bank was closed at 10-30 a.m. And that the respondent had came to the deposit the amount in question. The Trial Court condone the delay. The order was upheld in High Court. An appeal was find before the august Supreme Court which was dismissed on the ground as under:- "We are satisfied that the respondent had made a valid tender to the Court by getting the challan passed and by making an effort to make the deposit within time."
In Sharaf-ud-Din, etc. v. Ghulam Sabri, etc. (1980 CLC 108), the delay of one day was condoned as the Court was of the view that the District Judge was satisfied that:-- "the respondent had mis-understood the import of the order and thought that the 1 /5th of the pre- emption money was to be deposited upto 16.7.1975 and not before, therefore, he was justified in extending the time particularly when on 16.7.1975 the money had been deposited."
In the instant case as explained above (P-13 page 10) the appellant/Plaintiff had got the challan form passed from the Court concerned on 9.4.1977 even then did not deposit the amount in time.
Admittedly there was no mistake about the date. Even if it is believed that he went to the Bank on 11.4.1977 he went there at 2- 00 p.m. After the business hours. There is nothing in the Bank record to show that he did visit the Bank on the said date. Even the so-called certificate issued by the Bank Manager is. Dated 12.4.1977 on his previous conduct would also show that he had been getting extensions on flimsy ground.
16. The argument of the learned counsel for the appellant that since the two orders of extension of time had not beenchallenged specifically, therefore, the same could not have been commented upon by the learned first Appellate Court, overlooks a settled principle of law that on filing of the appeal the matter reopens and it is the duty of the Appellate Court to decide the issues raised as the entire matter re-opens, In PLD 1965 S.C. 1 "The Province of East Pakistan v\Muhammad Hussain Mia" precisely this objection was repelled and it was observed that:- "on the filing of an appeal the entire matter becomes re-opened and sub judice and has to be decided in accordance with the law prevailing. "The reliance of the learned counsel for the appellant on A. I.R. 1938 Mad. 357 to the effect that- " point not raised in pleadings by parties but raised by Court itself cannot be adjudicated upon unless parties to appeal had been given opportunity of meeting" is of no avail to the appellant as the vires of the extension order for the deposit of zarpanjam granted by the Trial Court had been challenged even before the Trial Court, through an application. The first Appellate Court rightly repelled plaintiff's objections and observed as under:- "The plea of the learned counsel for the respondent is, therefore, overruled for the reason that the failure to file appeal against interim order does pot preclude appeal against whole case including all interim orders made in the case and no party can be compelled by law to appeal from every interlocutory order."
The afore-referred finding in the impugned judgment is in accord with the spirit of the pleadings made and arguments addressed by the parties.
17. The argument of the learned counsel for the appellants that since the respondent/defendant did not challenge the extensions by way of separate appeal or revision; that in the writ statement no objection was taken with regard to such extension and that even in the memorandum of appeal those orders have not been challenged and therefore, it should be taken as a waiver is not tenable firstly because the respondent/defendant had through an application dated 14.6.1977 had taken exception to the extensions of time granted by, the learned Trial Court and had prayed for the rejection of the plaint which application was rejected by the learned Trial Court without commenting on the merit of the extension orders passed. Secondly in the written statement find by the respondent/defendant though no reference has been made to the specific dates on which extensions were granted by the learned Trial Court yet in the preliminary objections issue was raised to the effect that the Zarpanjam had not been deposited in time and that the plaint was liable to be rejected:-
18. Notwithstanding the question whether a party has taken a plea on a question of law a Court of law cannot abdicate its duty to apply the correct law in a given situation, In Prince Ghulam Muhammad Khan v. Settlement and Rehabilitation Commissioner (1972 SCMR 359) this onerous function of the Court was dilated upon and at page 365 it was observed as under:- "Whether litigant draws attention ot Court to it or not. It is the duty of the Court to apply the correct law."
This principle was also highlighted in yet another judgment of the august Supreme Court in Abdullah Khan v. Nisar Muhammad Khan (PLD 1965 Supreme Court 690). It was held at page 696:- "It is the duty of the Court itself to apply the law. A party is not bound to engage a counsel.
Whatever law becomes applicable on the admitted or proved facts, law has to be given effect to whether or not it has been relied upon by a party."
This Court is conscious of the parameters of its powers while deciding the Regular Second Appeal.
Section 100 of the Code of Civil Procedure reads as under:- Second Appeal. Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court, from every decree passed in appeal by a Court subordinate to a High Court on any of the following grounds, namely:-
(a) the decision being contrary to law or usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in the procedure provided by this Code orby any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.
No substantial question of law, or no material issue of law has been left un-decided and no substantial error or defect has been pointed out by the appellant's learned counsel to warrant interference in the judgment and decree of the learned lst Appellate Court. The findings of fact arrived at in the impugned- judgment are in accord with the evidence on record and no illegality is apparent which could be interfered with in the second appeal. This is in line with the law laid down by the august Supreme Court in Pathans v. Mst. Wasai and another (1965 SC 134); Alloo v. Sher Khan and others (PLD 1985 SC 382); Mst. Choori v. Ghulam Hussain (1978 SCMR.404) and Abdul Wali Khan through Legal Heirs and others v. Muhammad Saleh (1998 SCMR 760).
19. Before I part with this judgment, I would like to place on record my deep appreciation of the valuable assistance rendered by both the learned counsel, particularly counsel for the appellant Ch. Imdad AIP Khan, Advocate.
20. For what has been discussed above there is no merit in' these appeals which are dismissed with no order as to costs.