AZHAR HUSSAIN ZAIDI Versus ASHIQ HUSSAIN
Facts giving rise to this civil revision are that the petitioner, Syed Azhar Hussain Zaidi, ,filed a suit against the respondents, Ashiq Hussain and others, for specific performance of an agreement to ‑sell a portion of his house. On 28th April, 1987, an ex parte decree was passed in his favour without awarding. costs to him. Feeling aggrieved by the refusal of the learned trial Court to allow costs to him, the petitioner went in appeal before an Additional District Judge. While admitting the appeal to a regular hearing, the learned Additional District Judge suspended operation of the impugned judgment and decree. Eventually the appeal was accepted by him on 10th December, 1988 allowing cost of the suit to the petitioner.
2. While decreeing the suit‑ ex parte the learned trial Court directed the petitioner to deposit balance of the sale price within one month. When the appeal was admitted to a regular hearing by the learned Additional District Judge, he also suspended operation of the impugned judgment and decree. In view of the A order of suspension, petitioner did not deposit balance of the sale price within the period allowed to him by the learned trial Court by means of the ex parte decree passed by it. While accepting appeal, however, the learned Additional District Judge did not allow fresh time to the; petitioner, to make the deposit in question. Hence this revision.
3. It was contended, by learned counsel for the petitioner that it was obligatory for the learned appellate Court to allow fresh time to the petitioner for depositing balance of the sale price and as this was not done by him, his judgment and decree called for interference by this Court. In this connection reliance was placed by him on Khurshid Akbar v. Mian Manzur. Ahmed, and another 1982 SCMR 824.
4. On the other hand, it was urged by learned counsel for the respondent No.l that after the learned Additional District Judge had not allowed time to the petitioner to deposit the balance of the sale price the petitioner ought to have made an application to the learned Additional District Judge inviting his attention to above shortcoming on his part instead of filing this civil revision. According to him, revisional jurisdiction of this Court could not, therefore, be invoked by the petitioner for having more time to make the deposit in question.
5. Since operation of the decree of the learned ‑trial Court, _by which the petitioner was required to deposit balance of the sale price within one month, was suspended by the learned appellate Court it was incumbent on it to allow fresh time to the petitioner to make the deposit in question. It was so held in the ‑case of Khurshid Akbar cited by learned counsel for the petitioner. The said case relates to pre‑emption matter but the principle laid down therein can be made use of in the instant case as well. No doubt the petitioner could make an application to the learned Additional District Judge, after, the disposal of the appeal inviting his attention to the omission on his part, but his failure to do so, does not justify refusal of relief by this Court. The learned Additional District Judge committed a material irregularity in not allowing fresh time to the petitioner to make the deposit in question and, therefore, his judgment and decree deserve to be interfered with by this Court in exercise of its revisional jurisdiction. In this view of the matter, I modify the judgment and decree under challenge so as to enable the petitioner to make the said deposit. He has already made that deposit in pursuance of an interim order passed by this Court, subject to notice to the respondents. In view of what has gone above, the said deposit shall, therefore, be deemed to have been made in time. The civil revision is disposed of accordingly with no order as to costs.
H.B.T./A‑760/1. Order accordingly.