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Civil Petition for Leave to Appeal No. 218‑R of 1985, decided on 28th June, 1986.

(On appeal from the judgment and order of the Peshawar High Court, dated 19‑1‑1985 in Criminal Revisions Nos. 63 and 92 of 1984).

‑‑‑Art. 185(3)‑‑North‑West Frontier Province Pre‑emption Act (XIV of 1950), S.23‑‑Suit for pre‑emption‑‑Failure to deposit pre‑emption amount within time‑‑Leave to appeal granted to consider contentions that Trial Court having directed petitioner to deposit pre‑emption amount on or before a particular date, suit could not be dismissed on that date without giving an opportunity to petitioner to explain default that High Court in revision exceeded jurisdiction in passing impugned order without pointing out any jurisdictional defect in the order of Appellate Court that material on record was either misread or ignored resulting into gross miscarriage of justice; and that conduct of party in a civil matter is not relevant and should not have been considered when action of petitioner was legally justifiable and conduct of petitioner being irrelevant, case should have been examined on merits.

Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 28th June, 1986.

By this petition leave is sought to appeal against the judgment and order of a learned Single Judge of the Peshawar High Court, passed in Civil Revisions Nos. 63 and 92 of 1984.

2. Petitioner instituted a suit for possession by pre‑emption in the Court of Civil Judge, Peshawar against respondent No. 1 for ostensible price of Rs.1,65,000, vide Mutation No. 14267. On 26‑10‑1983 the trial Court ordered the plaintiff /petitioner to deposit a sum of Rs.65,000 in cash in the Court being the approximate value of the suit land, before 12‑11‑1983. Meanwhile the case of the petitioner was transferred to the Court of the Civil Judge, 1st Class per order of the learned District Judge, dated 8‑11‑1983 directing the petitioner to appear before the said Court on 10‑11‑1983. The petitioner, it is stated, appeared in the Court on this date and moved an application praying for the extension of time to deposit the pre‑emption amount. Notice was issued to the defendant by the Court for 12‑11‑1983 the date already fixed for hearing by the original Court. The summons and notice issued to the respondents/ defendants were returned to the Court unserved. Fresh notice was, therefore, ordered to be issued for 19‑11‑1983. The plaintiff /petitioner made a request for the time to deposit the amount to be extended and the time was extended by the learned Civil Judge up to 19‑11‑1983 as follows:‑

"Plaintiff with counsel present. Summons and notice against defendants returned un served. Fresh notice to defendants be given for 19‑11‑1983. On the request of the plaintiff, the plaintiff is directed to deposit said amount on or before 19‑11‑1983."

The case was taken up by the learned trial Court on 19‑11‑1983 and was dismissed for the reason that the pre‑emption amount as directed, had not been deposited.

3. The petitioner, aggrieved from the aforesaid order, filed appeal before the learned District Judge on 20‑11‑1983. Interim order with regard to status quo of the property was issued on 21‑11‑1983 and the case was fixed for hearing on 8‑12‑1983. The learned Additional District Judge who heard the appeal, per order, dated 10‑12‑1983 accepted the appeal of the plaintiff /petitioner and remanded the case to the trial Court for decision afresh on merits. However, while remanding the case the learned District Judge directed that the plaintiff /petitioner should deposit a sum of Rs.50,000 in cash before 21‑12‑1983 and should furnish security for the balance amount before the aforesaid date. The petitioner deposited Rs.50,000 in cash within time and also furnished security for the balance amount, as directed by the appellate Court. Since the petitioner was not satisfied with the order of the learned Additional District Judge with regard to his direction for the deposit of the sum of Rs.50,000 and for furnishing security for the balance amount, filed a Revision Petition No. 92 of 1984 in the Peshawar High Court. Respondent also filed Revision Petition No. 63 of 1984 and his prayer was that the order of the Additional District Judge be set aside and that of the trial Court be restored. Both the revision petitions were heard and disposed of by the learned Acting Chief Justice of the Peshawar High Court vide the impugned order, dated 19‑1‑1985. By the said order the learned High Court accepted the revision petition of the respondent and dismissed the one filed by the petitioner.

4. It was contended by the learned counsel that by order, dated 12‑11‑1983 the learned trial Judge had directed the petitioner to deposit the pre‑emption amount on or before 19‑11‑1983 and as such the suit could not be dismissed on 19‑11‑1983; that at any rate, even if it be assumed that the order could be passed on 19‑11‑1983, it could not be passed on the said date without giving an opportunity to the petitioner to explain his default. It was further contended that the learned High Court Judge, while passing the impugned order, did not pay attention to this aspect of the case; that the impugned order is beyond the jurisdiction of the High Court and the learned Judge exceeded his jurisdiction in passing the impugned order without pointing out any jurisdictional defect in the order of the appellate Court; that at any rate, the material on record was either misread or ignored. This resulted into grave miscarriage of justice and the impugned order is also the result of the misreading and ignoring of the evidence on record that the impugned order of the learned High Court also proceeds on wrong assumption of law and facts on the file. For example, the learned High Court stated in its order that twice the extension was granted. It is submitted by the learned counsel that extension was granted only once; that the conduct of the party in a civil matter is not relevant. The learned High Court paid attention to the conduct of the plaintiff /petitioner on the point that he asked' for the extension of time for the deposit of the pre‑emption amount and also moved an application praying that he be allowed to deposit only a sum of Rs.10,000 and for furnishing security for the rest of the amount; that the action of the petitioner was legally justifiable. At any rate the conduct of the petitioner being irrelevant the case should have been examined on merits ignoring the conduct of the plaintiff /petitioner.

5. We have examined the contentions raised by the learned counsel for the petitioner. We grant leave. Security rupees two thousand and five hundred. Status quo granted shall continue till the disposal of the appeal. The appeal shall be heard along with Civil Appeal No. 100 of 1984.

M.I. Leave granted.

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