GHULAM RASOOL Versus MUHAMMAD YOUSAF

ORDER

The respondent filed a suit for possession of the suit land through pre‑emption against the petitioners which was decreed by the learned trial Court on payment of Rs.34,000 vide judgment, dated 15‑6‑1972. The respondent was directed to deposit the said amount by 5‑9‑1972. However, the respondent filed an appeal on 5‑8‑1972 and on his application the implementation of the decree was stayed by the learned appellate Court vide order, dated 10‑8‑1972. Consequently, the pre‑emption money was not deposited by 5‑9‑1972. The appeal remained pending and then on 29‑6‑1982 the respondent withdrew the appeal and naturally requested for time for deposit of the pre‑emption money. The learned appellate Court vide order, dated 29‑6‑1982 dismissed the appeal as withdrawn and allowed time up to 29‑7‑1982 for deposit of the pre‑emption money. The same was deposited on 3‑7‑1982. The petitioner filed a review petition before the learned appellate Court on 4‑7‑1982 on the ground that the appeal had been allowed to be withdrawn and the time had been granted for deposit of the pre‑emption money without hearing him. Vide order dated 2‑3‑1985 the learned appellate Court accepted the review petition and fixed the matter for hearing the appeal. The learned appellate Court heard the parties and vide order, dated 3‑4‑1985 dismissed the appeal as withdrawn and directed the respondent to deposit the pre‑emption money by 3‑5‑1985 (although it had already been deposited on 3‑7‑1982). The petitioner then filed another review petition on the ground that the pre‑emption money had not been deposited by the respondent within the time given by the learned trial Court i.e. upto 5‑9‑1972 and, therefore; the suit stood dismissed. This review petition was dismissed by the learned appellate Court vide order, dated 11‑11‑1987 against which this revision petition has been filed. I have heard the learned counsel for the petitioner.

2. As narrated above the learned trial Court had given time upto 5‑9‑1972 for deposit of Rs.34,000 less the 1/5th of pre‑emption money. However, before the said period expired or was near to expire the respondents filed an appeal on 5‑8‑1972 and the implementation of the decree was stayed in the proceedings of the same, by the learned appellate Court, vide order, dated 10‑8‑1972. The learned appellate Court allowed the withdrawal of the appeal and dismissed the same as withdrawn vide order, dated 29‑6‑1982. As the implement4tion of the decree of the learned trial Court had been stayed by the learned appellate Court it was the duty of the learned appellate Court to fix the date by which the pre‑emption money had to be deposited. The appellate Court under the said legal duty duly fixed the time upto 29‑7‑1982 for the purpose and as already said the deposit the pre‑emption money was made by the respondent on 3‑7‑1982. The learned counsel for the petitioner has argued that the learned appellate Court could not extend the time for deposit of pre‑emption money upto 29‑7‑1982 at the time of the dismissal of the appeal as withdrawn. The arguments has no force because when the implementation of the decree had been stayed by the learned appellate Court it had a bounden and illegal duty to fix a new date for deposit of the pre‑emption money and this is what the learned appellate Court did. Apart from that nobody can be punished for an act of the Court itself and so has been laid down in Ghulam Haider and others v. Mst. Raj Bharri and others P L D 1988 SC 20. It will be a useful repetition to add that the appeal was 'filed by the respondents on 5‑8‑1972 a month before the date (i. e. 5‑9‑1972) fixed for the deposit of the pre‑emption money. If the learned appellate Court had not stayed the implementation of the decree or if the learned appellate Court had refused the said interim relief to the respondent he would certainly have deposited the pre‑emption money by the time fixed by the learned trial Court. Therefore, the respondent cannot be made to suffer on account of the order, dated 10‑8‑1972 of the learned appellate Court which order even otherwise was in fact made lawfully and validly. The revision petition is dismissed in limine.

M . B . A . / G‑125/ L Revision dismissed.