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Civil Appeal No. 864 of 1984, beard on 23rd February, 1986.

(On appeal from the judgment, dated 4‑6‑1976 of the Lahore High Court, Lahore in R. S. A. No. 3 of 1976).

‑‑ S. 22‑Civil Procedure Code (V of 19015), O. XX, r. 14‑‑Pre emption suit ‑Extension of time for deposit of pre‑emption amount Appellate Court, held could extend time for deposit of pre‑emption amount both during pendency of appeal before it as well as when it dismisses appeal ‑Appellate Court, however, will exercise such power in fit and suitable cases and could also refuse to exercise discretion in exceptional cases.

Ghulam Muhammad and another v. Irshad Ahmad P L D 1982 S C 282 ; Shah Wali v. Ghulam Din alias Gaman P L D 1966 S C 983 ; Haji Ishatiaq Ahmad and another v. Bakhshava and 7 others 1976 S C M R 420; Muhammad Shabbir and others v. Bashir Ahmad 1974 S C M R 24 ; Hail Nawab Khan v. Fazalur Rehman and another 1976 S C M R 502 ; Khurshid kbar v. Mian Manzur Ahmad and another 1982 S C M R 824 and Dost Muhammad and others v. Nazar Hussain Khan and others 1984 S C M R 325 ref.

Kh. M. Farooq, Advocate Supreme Court and M. A. Siddlqui, Advocate- on‑Record for Appellant.

Imtiaz Muhammad Khan, Advocate‑on‑Record (absent) for Respondent No. 1.

Date of hearing :23rd February, 1986.

This appeal, by the leave of this Court, is directed against the judgment of the Lahore High Court, Lahore, passed in R. S. A. No. 3 of 1976 on 4‑6‑1976.

The relevant facts, which form the background, are that land measur ing 97y Kanals situated in the area of Mauza Kahote, Tehsil Shah Pur, District Sargodha, was sold by respondent No. 2, namely, Rehman son of Sardar to respondent No. 1, namely, Allah Bakhsh son of Muhammad Din by registered sale‑deed for Rs. 41,000 on 14‑3‑1970. The appellant instituted a suit for pre‑emption in the trial Court on 13/15‑3‑1971 and claimed superior right of pre‑emption against vendee on the ground of being collateral of the vendor and on the ground of being a Khaiwat Dar in the village in which the suit land is situated. The suit was contested by respondent No. 1 and the following issues were framed:-

(1) Whether this suit is for partial pre‑emption If so, its effect

(2) Whether the suit land is improperly described in the plaint If so, its effect

(3) Whether this suit is improperly valued for purposes of court‑fee and jurisdiction

(4) Whether the plaintiff is estopped from bringing the suit

(5) Whether the plaintiff has a superior right of pre‑emption as against the defendant vendee

(6) Whether the suit is barred by limitation

(7) Whether Rs. 41,000 was fixed in good faith or actually paid by the defendant/vendee to the vendor

(8) What was the market value of the suit land at the time of its sale to the defendant/vendee

(9) Relief.

The learned Civil Judge, by judgment and decree, dated 24‑11‑1972, decreed the claim of the appellant Bhai Khan (plaintiff) on payment of Rs. 41,000 less 1/5th of the amount already deposited i.e. on deposit of Rs. 32,000 on or before 14‑12‑1972 in Court, failing which his suit would stand dismissed with costs.

The appellant, Bhai Khan, filed an appeal on 21‑2‑1972 against the judgment and decree in the Court of the District Judge wherein he challeng ed the correctness of the learned trial Court's finding on Issues Nos. 7 and 8 (relating to the payment of Rs. 41,000 and the determination of the market value). This appeal came up for hearing before Qazi Muhammad Hussain, Additional District Judge on 13‑12‑1972, who passed the follow ing order :‑

"Counsel for the appellant present. Appeal has been registered. File of the original Court sent for o . ‑

The case be fixed on 14‑2‑1973. Execution of the decree is stayed meanwhile."

The appeal came up for hearing, as fixed, on 14‑2‑1973 but could not be disposed of on that date and was, accordingly, adjourned to another date but no order, however, was passed on that date to extend the stay order. Ultimately, the appeal came up for final hearing before the learned District Judge on 4‑11‑1975. On this date, Bhai Khan, appellant herein, withdrew his appeal. However, at the same time he prayed for extension in the time for depositing the pre‑emption money. The) learned District Judge vide order, dated 4‑11‑1975 dismissed the appeal as withdrawn but refused to extend the time for the deposit of the pre‑emption money, observing :‑

"I have carefully examined the facts of the case cited by the learned counsel for the respondent. The proposition enunciated therein is clearly attracted in the circumstances of the present case, the order, as dated 13‑12‑1972 (which was effective till 14‑2‑1973) having not been extended for any reason whatsoever, on part of any one of the parties or the Court, the dismissal of the suit for pre‑emption decree under appeal itself became effective against the decree‑holder as back as 15‑2‑1973. In this view of the matter, the question of accepting that stay application after 14‑2‑1973 would hardly arise. For these reasons, I dismiss the application for stay and as a consequence I hold that the decree dismissing the appellant's suit has become effective by its own terms. The appeal is dismissed. The parties are left to bear their own costs in view of the legal intricacy."

Dissatisfied, Bhai Khan filed a second appeal before the Lahore High Court at Lahore (R. S. A. No. 3 of 1976). But this appeal was dismissed by a learned Single Judge of the said Court vide order, dated 4‑6‑1976 and it was, inter alia, observed :‑

"In the present case as before the expiry of the period fixed by the trial Court for the deposit of pre‑emption money, the appeal was brought the appellant was entitled to ask for the suspension of the decree but as after 14‑2‑1973 he did not press his stay application and did not bring it to the notice of the appellate Court for a long period of three years, the learned District Judge rightly refused to extend the already expired time. No doubt, in such cases the appellate Court has jurisdiction to extend the time but the circumstances of the case and conduct of the party, asking for the extension are to be considered. As observed above, since the appellant was guilty of gross negligence in. not bringing his stay application to the notice of the learned District Judge and mala fide contested the point of deficiency in the court‑fee in order to prolong the appeal and thus to gain time, he was not entitled to the exercise of the discretion in his favour for the extension of time."

Hence this appeal, by leave of this Court.

The learned counsel for the appellant contended before us that the order, dated 13‑12‑1972 extending time up to 14‑2‑1973 for depositing pre emption money must be deemed to have extended the time during the entire period of the pendency of the appeal before the District Judge and that in any case the learned District Judge erred in law in thinking that on the date of disposal of the appeal there was no question of extending the time for deposit of the pre‑emption money because the decree under appeal had already become effective on 15‑2‑1973 (because the stay order granted in his favour had expired on 14‑2‑1973 and there was only one day remaining thereafter for making deposit of the pre‑emption money under the original decree of the trial Court). The High Court, it is submitted, had similarly erred in affirming the above view of the learned District Judge.

The question as to what is the effect of an appeal filed only against the decree with regard to the pre‑emption amount payable by the pre emptor‑decree‑holder after the finding that he possesses a superior right of pre‑emption has been considered by this Court already. In Ghulam Muhammad and another v. Irshad Ahmad (PLD1982SC282) wherein several earlier judgments of this Court were considered, inter alia, Shah Walf v. Ghulam Din alias Gaman (PLD 1966SC983), Haji Ishtiaq Ahmad and another v. Bakhshava and 7 others (1976S'CMR420), Muhammad Shabbir and others v. Bashir Ahmad (1974SCMR24) and Haji Nawab Khan v. Fazalui Rehman and another (1976 S C M R 502), and it was laid down that the Supreme Court has the power to grant extension of time through an interim order for depositing the balance of the pre‑emption amount payable, even during the pendency of a petition for leave to appeal to this Court and that the deposit made under such an interim order would save the decree passed in favour of the pre‑emptor, notwithstanding the dismissal ultimately of the petition for leave to appeal. This judgment was noticed by this Court in another case decided in the same year, namely, Khurshid Akbar v. Mian Manzur Ahmad and another (1982 S C M R 824), and it was observed:‑

"A perusal of the judgments relied upon before us shows that the view expressed in the recent pronouncements of this Court is that the time for payment of the balance pre‑emption amount can be extended by the Appellate Court by an interim order passed during the pendency of the appeal or while dismissing it and that even this Court can do so pending the hearing and disposal of a petition for leave to appeal filed before it."

(Underlining'" is ours) '(Here in italics)

However, it was further observed in this judgment that in so far as the time in which the deposit is to be made, the rule of reasonable time will apply. It was also observed that "reasonable time" meant the time still available for making deposit on the day when the appellate Court suspended the decree."

The last‑mentioned judgment was noted with approval by this Court in a subsequent judgment, namely, Dost Muhammad and others v. Nazar Hussain Khan and others (1984 S C M R 325).

The rule deducible from the decisions of this Court appears to that an appellate Court can extend the time for deposit of the pre‑emption amount both during the pendency of the appeal before it as well as when it dismisses the appeal. Thus, the view of the learned District Judge that he had no power to extend the time for deposit of the pre‑emption amount as the time given by the trial Court in its decree had expired, was erroneous. However, the High Court, in its judgment, did not accept the above view of the District Judge. On the contrary, it held that though it had the power to extend the tithe but that it was not disposed to do so in view of the facts and circumstances of this case, namely, that the appellant was guilty of gross negligence in not bringing his stay application to the notice of the learned District Judge and had mala fide contested the point of deficiency in the court‑fee in order to prolong the appeal and thus to gain time. It was on account of these circumstances that the appellant was found disentitled to the exercise of the discretion for extension of time in his favour and not on the ground that the Court had no power to do so.

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 e and that the present case was not such a case. The submission of the appellant, however, is that in view of this Court's judgment in Khurshid Akbar v. Mian Manzur Ahmad (1982 S C M R 824) the appellate Court is bound while dismis sing 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 tray 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 amount. We are, therefore, not inclined to interfere with the impugned order of the High Court.

The result is that there is no merit in this appeal which is, accordingly, dismissed with costs.

M. B. A. Appeal dismissed.

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