RIAZ HUSSAIN vs NAZAR MUHAMMAD and others

ORDER

1. ' TANVIR AHMED KHAN, J.--- Leave to appeal is sought against the judgment, dated 22-5-2000 whereby a learned Single Judge of the Lahore High Court, Lahore, set aside the determination of the learned First Appellate Court and dismissed the suit of the petitioner filed for possession through pre-emption.

2. ' Fact briefly are that the petitioner filed a suit for possession through pre-emption on 10-4-1976, which was decreed through a compromise effected between the parties on 9-10-1984 subject to payment of Rs,28,500 to be deposited in Court before 9-12-1984, failing which the suit would stand dismissed.

3. ' The petitioner could not deposit the above amount in time and filed a belated appeal against the above judgment before the learned First Appellate Court praying for extension of time. The learned Additional District Judge, Jhang, through his order, dated 13-3-1985 enlarged the time under section 148, Cr.P.C. The respondents filed aforesaid civil revision before the Lahore High Court, Lahore, taking exception to the above judgment inter alia on the ground that no appeal was competent against as consent decree and, secondly, the appeal filed before the learned First Appellate Court was barred by time as it was filed on 9-2-1985.

4. ' The learned Single Judge of the Lahore High Court, Lahore after evaluating the entire law came to the conclusion that the appeal was hopelessly barred by time and accepted the civil revision filed by the respondents through the impugned judgment. Hence, this petition for leave to appeal.

5. ' We have considered the contentions raised by the learned counsel for the petitioner and have perused the entire documents placed on record with his assistance. We have noticed that the compromise decree was passed on 9-10-1984 and according to the same the petitioner was required to deposit Rs,28, 500 before 9-12-1984. He did not comply with the same and instead filed a belated appeal against the consent decree on 9-2-1985. The learned Single Judge after thrashing the entire material on record has non-suited the petitioner as he failed to deposit the above amount by the stipulated time and his appeal before the first Appellate Court was barred by time. It would be appropriate to reproduce the conclusion of the learned Single Judge of the Lahore High Court which he has rendered after discussing the entire case-law. The same reads as under:- - "Simple assertion during the course of arguments before the Appellate Court was not enough for condonation of delay as the appeal had been filed long after the due date. A valuable right had accrued in favor of the petitioner, firstly by non-deposit of the decretal amount within time by the respondent, i,e, before 9-12-1984, and then filing an appeal after the limitation period. The learned Additional District Judge thus, acted illegally in accepting an incompetent appeal."

6. ' Apart from the above, it would be too harsh asking the respondents to accept the amount of Rs,28,500 after a period 20 years when the prices of the land have increased manifold. Learned counsel for the petitioner has failed to point out any illegality or legal infirmity in the impugned judgment warranting interference.

7. ' Resultantly, in view of the above discussion, the instant petition being without any merit is hereby dismissed and .