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‑‑‑0. XX, R. 14‑‑Punjab Pre‑emption Act (I of 1913), S.15‑‑Pre‑emption money‑‑Deposit of‑‑Default‑‑Operation of pre‑emption decree of Trial Court in favour of decree‑holder in which he was ordered to deposit pre‑emption money on specified date having been suspended by Appellate Court on appeal of pre‑emptor without giving him any date for deposit of pre‑emption money‑‑Operation of decree was also stayed in revision before High Court‑‑ Decree‑holder/pre‑emptor who was prevented from making deposit of pre‑emption money by facts stated and by operation of law, held, could not be taken to be defaulter in making deposit of pre‑emption money.

Sheikh Muhammad Sadiq v. Bostan and others P L D 1979 SC 917 and Dost Muhammad and others v. Nazar Hussain Khan and others 1984 S C M R 325 ref.

Islam Ali Qureshi for Petitioner. Mian Abbas Ahmad for Respondent.

Date of hearing: 8th December, 1986.

In a pre‑emption suit a consent decree was passed by the learned Civil Judge, Leiah on 2‑1‑1982 on payment of Rs.74,200. The petitioner/ pre‑emptor filed an appeal against the said decree which was dismissed by the learned District Judge, Leiah vide order, dated 5‑1‑1983. Hence, this revision.

2. I have perused the record and have heard the arguments. The learned counsel and the petitioner who himself is an Advocate have stated that they would withdraw the present revision petition if the deposit of pre‑emption money made by them on 22‑10‑1986 is held to be validly made. The learned counsel for the respondent on the other hand contends that the said deposit has not been made within time and the petitioner has to face the legal consequences thereof. The decision, therefore, will relate to the matter of said deposit which alone now is contested. However, a small history of the case may be given to appreciate the facts involved in the case. When the case was taken up by the learned trial Court on 2‑1‑1982 the learned counsel for parties (in that Court) were present and the evidence of one witness Abdul Ghani was recorded. At that time the said counsel for the petitioner/ plaintiff made a statement that he had been instructed by the petitioner/ plaintiff (his client) that if the respondent‑defendant states on oath on the Holy Qur'an that the price of Rs.70,000 was actually paid then the said price would be acceptable to the petitioner and similarly whatever expenditure is stated by him to have been incurred on registration that will also be acceptable to him. The respondent thereon made the oath on the Holy Qur'an stating that Rs.70,000 were actually paid as price for the suit land and Rs.4,200 were incurred as expenditure on the registration. Accordingly the said consent decree was passed and it was ordered that the pre‑emption money may be deposited up to 1‑3‑1982. The petitioner, thereafter filed the said appeal before the learned District Judge, Leiah contending that his counsel has no authority to make the said statement for compromise or to make an offer of oath on the Holy Qura'n. The appeal was admitted by the learned appellate Court vide order, dated 9‑2‑1982 and at the same time an order was made that the operation of the impugned order shall remain suspended. No further order vacating the said interim order was made. Therefore, the said order remained in operation. Ultimately, the appeal was dismissed on 5‑1‑1983 on merits holding that it was a consent decree and was not appealable. In the revision petition a ground was taken that the said appellate decree was passed without hearing the, petitioner but that aspect is not now relevant. In the appellate order, dated 5‑1‑1983 no date was mentioned by which the petitioner/ pre‑emptor was to make the deposit of the pre‑emption money. Obviously the date given by the learned trial Court had passed long ago. In view of the suspension of the operation of the decree of the learned trial Court it was incumbent for the learned appellate Court to specify a date, in the said final order, dated 5‑1‑1983, by which pre‑emption money had to be deposited. In other words, the pre‑emptor was prevented from making the deposit within time allowed by the learned trial Court through the said interim order, dated 9‑2‑1982 of the learned appellate Court and when there was no further order regarding the deposit of the pre‑emption money the pre‑emptor could not deposit the same by any specified date or within any specified period. The present revision petition was filed on 3‑3‑1983. Civil Miscellaneous Application No. 558, dated 19‑3‑1983 was also filed praying for the stay/suspension of the operation of the decree of the lower Courts. The operation of the same was stayed by this Court vide order, dated 22‑3‑1983, but thereafter, neither the said interim order was vacated nor confirmed and the said civil miscellaneous application, therefore, remained pending. The petitioner then filed an application (Civil Miscellaneous 1730 of 1986) on 30‑9‑1986 praying that either the interim order relating to the suspension of the impugned decree may be extended or he may be allowed to deposit the entire amount as decreed by the learned trial Court. The making of the deposit was allowed vide order, dated 21‑10‑1986 of this Court subject to all just and legal exceptions. The deposit of the whole of pre‑emption money, less 1/5th of the pre‑emption money already deposited, amounting to Rs.60,200 was actually deposited on 22‑10‑1986. With these facts it is to be seen whether the deposit has been made in time or not.

3. Before going into the legal question it is better to see the factual position which has been narrated in the foregoing paragraph. As already mentioned the operation of the decree of the learned trial Curt was suspended by the learned appellate Court vide order, dated 9‑2‑1982 and the said order of suspension remained in operation till the appeal itself was dismissed on 5‑1‑1983. No order for the deposit was made and no date for the deposit was given by the learned appellate Court and, therefore, the pre‑emptor could not make the deposit or in other words the pre‑emptor was not legally bound to make the deposit by any specified date or within any specified period. Again he came in revision to this Court and once again the operation of the impugned decree was stayed on 22‑3‑198.1. The said order as already stated was not specifically vacated and a course it was not confirmed and a matter of fact the civil miscellaneous application relating thereto still remains pending. In these circumstances the pre‑emptor was prevented from making the deposit by the said facts and by operation of law. He could be taken to be a defaulter in the making of deposit of pre‑emption money if he had failed to do so within a specified period or by a specified date. He applied for decision of his application relating to the suspension of the operation of the impugned decree and also himself came forward with the offer to deposit the pre‑emption money although it was only the price of the land which was in dispute. This means that the petitioner proceeded in a bona fide manner in respect of the deposit of the pre‑emption money and made no default at any stage. Therefore, the petitioner being not at fault cannot be penalised for the deposit made by him on 22‑10‑1986.

4. Learned counsel for the respondent has referred to Sheikh Muhammad Sadiq v. Bostan and others P L D 1979 S C 917 and has argued that on the basis of the law laid down therein not only the revision petition of the petitioner has to be dismissed but his suit has also to be dismissed for non‑deposit of pre‑emption money. The law laid down in the said dictum of the Honourable Supreme Court is not at all applicable to the present case. That case related to the non‑mentioning of the legal effect of non‑deposit in the decree of the appellate Court. It was not mentioned that the default will entail dismissal of the suit. It was held by the Honourable Supreme Court that the order was perfectly right and the legal consequences of none‑deposit of pre‑emption money by the given time were to be determined by Order XX, Rule 14, C.P.C. It provides that if a pre‑emptor fails to make a deposit within the given time or by a given date the suit of the pre‑emptor shall stand dismissed with costs. In the present case, even the date by which the deposit was to be made was not given in the appellate order and apart from that the pre‑emptor was prevented from making deposit by staying operation of the decree. Learned counsel for the petitioner has referred to Dost Muhammad and others v. Nazar Hussain Khan and others 1984 S C M R 325 and has argued that a deposit made by a pre‑emptor within a reasonable period in such circumstances is to be taken as a valid deposit. In fact it is the law laid down in the said ruling which is applicable to the present case. In fact the case of the present petitioner is on more solid grounds than any other case because he could not make the deposit because there was no order for deposit by a given date by the appellate Court and as the operation of the impugned decree, first of the learned trial Court and then of the learned appellate Court remained suspended. He himself, instead of being negligent, was vigilant enough and made an offer to deposit the amount irrespective of the fate of the present revision petition. He was allowed to make the deposit on 21‑10‑1986 and he made the deposit on the very next day on 22‑10‑1986. In these circumstances the deposit of pre‑emption money by the petitioner is held to have been made validly and within time. The revision petition is dismissed subject to the said decision in regard to the deposit of the pre‑emption money.

5. The parties to bear their own costs.

H. B. T. /M‑14/L Revision dismissed

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