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Civil Petitions Nos. 56 and 57 of 1982, decided on 16th October, 1982.
(On appeal from the judgment dated 19th December, 1981, of the Lahore High Court Babawalpur Bench in Civil Revision No. 953/1979/LHR and 183/1981/BWP and Civil Revision No. 954‑79/LHR and 181/81/BWP).
----Art. 185 (3)‑‑Appeal to Supreme Court‑Petitioner's counsel admittedly not appearing in trial Court on date of bearing‑Question of fact‑As to whether Attorney of petitioner, allegedly present, failed to appear despite case having been called out‑Held, cannot be resolved in proceedings before Supreme Court.
‑‑ Art. 185 (3)‑Suit for preemption‑Deposit of zar‑a panjum Application of plaintiff praying for replacement of earlier order, directing deposit of zar‑a panjum, by order of furnishing security in its stead by trial Court in exercise of discretion‑Contention that trial Court failing to pass speaking order giving reasons for not exercising discretion in petitioner's favour‑Held, no elaborate or speaking order is required to be passed in deciding such miscellaneous application.‑[Pre‑emption].
Ch. Zulfiqar Ali v. Mian Akhtar Islam and another P L D 1967 S C 418 nat relevant.
Sh. Shaukat Ali, Senior Advocate Supreme Court and Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing : 16th October, 1982.
This order will dispose of Civil Petition No. 56 of 1982 and Civil. Petition No. 57 of 1982, as the question requiring decision in both the matters, is the same.
The facts briefly are that the petitioners instituted a. suit for pre‑emption against respondents 1‑5 in the Court of the Senior Civil Judge, Rahimyar Khan on the ground of superior right of pre‑emption. The learned trial Judge directed the petitioners to deposit the zar‑e-panjam in cash (being Rs. 60,000 in C. P. No. 56/82 and Rs. 80,000 in C. P. No. 57/82) before 31‑5‑1979. On 14‑5‑1979, the pre‑emptors submitted applications praying for replacement of the order regarding deposit of the zar‑e‑panjam in cash with the order of furnishing securing in its stead. Notice was issued to the other side in these applications for 24‑5‑1959. On this date neither of the parties nor their counsel appeared before the Court, presumably in response to a strike being observed by the Advocates of Rahimyar Khan, with the result that the applications in question were considered by the learned trial Court without the assistance of the learned counsel. In the result, he dismissed both of them with the observation that no sufficient ground was disclosed for furnishing security in these cases.
Feeling aggrieved by this order, the petitioners challenged it by filing revision petitions before the Lahore High Court. These having been dismissed on the ground that the order of the lower Court was passed in exercise of the. discretionary powers of the trial Judge. and could not he interfered with in revisional jurisdiction; hence these petitions for leave to appeal.
Sh. Shaukat Ali, learned counsel for the petitioners, in support of these petitions, relied upon this Court's judgment in Ch. Zulfiqar Ali v. Mian Akhtar Islam and another (PLD1967SC418) wherein it was held that the trial Court is competent to vary its original order requiring security and to replace it by an order in the alternative form allowed by the law, namely, an order for deposit of one‑fifth of the purchase price in cash. This judgment does not appear to be relevant in the facts and circumstances of the case because the question here is not that the Court could not have replaced its order of deposit of zar‑e-panjum in cash with an order of furnishing security but the question is whether in case of the refusal of the trial Court to do so, such an order can be challenged by way of a revision before the High Court
On this aspect of the case; the learned counsel for the petitioners submitted that the trial Judge exercised his jurisdiction illegally in that he had dismissed the applications submitted by the petitioners for modification of his earlier order without hearing them and also without passing a speaking order containing reasons for not exercising his discretion in their favour.
As for the question that the counsel of the petitioners was not beard, it is an admitted position that their counsel did not appear in Court on the date of hearing and although their attorney is alleged who have been present it is not certain whether he failed to appear before the Court despite the case having been called out or whether he was not given any opportunity to appear before the Court. Such a disputed question of fact cannot be resolved in these proceedings.
As for the objection regarding the failure to pass any speaking order suffice it to say that no elaborate order is required to be passed in deciding a miscellaneous application of the kind which required determination in these cases.
In any event, after having considered all aspects of the matter, we do not think that these are fit cases for grant of leave to appeal.
These petitions, therefore, fail and are dismissed hereby.
Petition dismissed.
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