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Civil Petition for Special Leave to Appeal No. 723 of 1979, decided on 9th March, 1986.

(From judgment of Lahore High Court, Lahore, dated 7‑7‑1979 in Regular Second Appeal No. 380 of 1966).

Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185(3)‑‑Punjab Pre‑emotion Act (I of 1913), Ss. 4 & 15‑‑Petition for leave to appeal‑‑Petitioner's appeal arising out of pre‑emotion suit dismissed by High Court on ground that he had withdrawn pre‑emotion money during pendency of appeal in High Court‑‑Contention of petitioner that High Court had not given due effect to circumstances that petitioner had re‑deposited amount with conditional permission of Court; that amount remained in Court for many years; that High Court did not decide case on its own merits and that in recent years it had been held that even in those cases where pre‑emotion money had not been deposited at all before filing of appeal, it was within power of Appellate Court to grant reasonable time for deposit of pre‑emotion money when dismissing appeal‑‑Such questions and others raised in petition and not looked into by High Court requiring examination‑‑Leave to appeal granted.

Muhammad Ramzan v. Muhammad Khan and another 1972 SCMR 442 ref.

Muhammad Rafiq Khan Chohan, Advocate with Sh. Masud Akhtar, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 9th March, 1986.

.‑‑Leave to appeal has been sought from judgment dated 7‑7‑1979 of the Lahore High Court; whereby a Regular Second Appeal filed by the petitioner‑side which had arisen out of a pre‑emption matter, was dismissed on the ground that the petitioner had withdrawn the pre‑emption money during the pendency of the appeal in the High Court.

2. According to the very brief facts given by the learned counsel the petitioners had made an application for withdrawal of the pre‑emption amount during the pendency of the appeal in the High Court. Without waiting for an order of permission for withdrawal the amount was withdrawn. But some years later as the appeal could not be disposed of for a long time the petitioners made another application seeking permission to re‑deposit the amount. This permission was granted at their own risk and cost and the amount was re‑deposited. Several years later the other side made an application stating that the first withdrawal was without specific leave of the Court, although an application in that behalf was pending before the Court, therefore, the appeal merited dismissal. The High Court upheld the plea and dismissed the appeal.

3. Learned counsel has contended that the case‑law referred by the High Court from both the sides makes out a case for grant of leave to appeal for further clarifying the law; that the High Court has not given due effect to the circumstance that the petitioners had re‑deposited the amount with the conditional permission of the Court, and that the amount remained in the Court for many years; that in an observation made at page 9 of the judgment (page 23 of the paper book) it appears that the High Court did not decide the matter on its own merits rather it took ill the conduct of the petitioner as amounting to ‑"an affront to the Court". This, according to the learned counsel, A must have led to same effect on the judgment; and lastly, he has contended that in recent years it has been held even in those cases where the pre‑emption money had not been deposited at all before the filing of the appeal that it is within the power of the appellate Court to grant reasonable time for deposit of the pre‑emption money when dismissing the appeal all this has not been seers. Learned counsel has placed reliance on Muhammad Ramzan v. Muhammad Khan and another 1972 SCMR 442 as also on a judgment of this Court in which an appeal was dismissed on 5‑3‑1986 C.A.No.864 of 1984 Bhai Khan v. Allah Bakhsh and another arising out of Civil Petition No. 571 of 1976, leave to appeal wherein was granted on 16‑12‑1984.

4. These questions, inter alia, and others raised in this petition require examination. Leave to appeal is accordingly granted. Security Rs.2,000. Appeal to be prepared on the same record with liberty to file additional documents, if necessary.

M. Y. H. Leave granted.

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