MUHAMMAD IKRAM ULLAH Versus FAZAL AHMAD

The facts giving rise to this second appeal under section 100, C.P.C. are that the appellant riled a suit for pre‑emption on 5‑7‑1971 claiming his superior right of pre‑emption as owner in the estate. Learned Civil Judge had to adjourn the suit from day to day till 6‑12‑1971 as Farad Arazi was not filed by the appellant‑pre‑emptor alongwith the plaint. Thereafter, Farad Arazi filed was found to be deficient and as such a direction was made to file the correct Farad Arazi. Then on 6‑12‑1971 the suit was adjourned on account of Emergency and December 1971 War. The suit was thereafter fixed on 7‑2‑1972. For this date the learned counsel for the appellant‑pre‑emptor was duly notified. On 7‑2‑1972 in the presence of the learned counsel direction to deposit the Zar‑e‑Punjam and furnishing of correct Farad Arazi by the next date of hearing i.e. 6‑4‑1972 was made. Ultimately on 6‑4‑1972 in the presence of the learned counsel for the appellant the suit was dismissed under section 22(4) of the Punjab Pre‑emption t Act on account of non‑deposit of the Zar‑e‑Punjam. 1t is to be noted that on this date, the learned counsel for the appellant‑pre‑emptor did not make any request to grant further time for making the necessary deposit. The appellant‑pre‑emptor then filed first appeal challenging the decree of dismissal of the suit. In the memorandum of appeal the plea taken was that on 6‑4‑1972 the appellant‑pre- emptor when appeared came to know that on 28‑2‑1972 order to deposit Zar‑e- Punjam had been made bit the appellant‑pre‑emptor had no information of the said order as he had neither appeared on 28‑2‑1972 nor he had been bound down for the said date and as such the learned trial Court has erred in dismissing the suit on account of non‑deposit of Zar‑e‑Punjam. During the arguments before the learned District Judge, Sialkot, the plea taken was that the appellant‑pre‑emptor was not present and his learned counsel could not inform him about the order of the learned trial Court regarding the deposit of 1/5th but this explanation was not considered to be a valid ground for the acceptance of the appeal. The learned ~‑first appellate Court further observed that the impugned order shows that the appellant‑pre‑emptor was not present even on the day the impugned order was passed. Thereafter, the appellant‑pre‑emptor filed this second appeal and the contention noted in the admitting order is that the appellant belongs to the war affected area of Sialkot District and as such was prevented from depositing the pre‑emption money. The plea is factually incorrect as it was conceded that the appellant was not resident of war‑affected area. No such plea has even been taken either in the memorandum of second appeal or in the affidavit submitted by the learned counsel. This plea taken is that the appellant‑pre‑emptor lives at a distance of 16 miles in a village and that the order of the Court could not be communicated to the appellant‑pre‑emptor by the learned counsel due to war conditions. It will be noted that this plea was not even taken in the memorandum of the first appeal. This is obviously an afterthought. Sufficient time was allowed to the appellant‑pre‑emptor to deposit the Zar‑e‑Punjam. No explanation whatsoever was given for non‑deposit of the Zar‑e‑Punjam before the learned trial Court. Moreover, the learned counsel did not request for extension of time in making the deposit. In these circumstances the discretionary order passed by the learned trial Court and affirmed by the learned first appellate Court cannot be said to be arbitrary or fanciful. This second appeal is bound to fail even in view of the latest pronouncement of the Supreme Court in the case of Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287. No decree can now be passed on the ground of superior right i.e. owner in the estate urged in the plaint. At this stage it may be noticed that the learned counsel tried to argue that the amendments introduced in the Constitution pertaining to the constitution of Federal Shariat Court and the Shariat Appellate Bench are invalid; that the judgment of the Federal Shariat Court is not a judgment and as such has no binding force on the Courts; that Articles 203/A, 203/B, 203/C, 203/13, 203/DD, 203/E, 203/F, 203/G, 203/GG, 203/H and 203/) of Chapter 3 of the Constitution are repugnant to Article 2‑A. These pleas are not available to the appellant‑ pre‑emptor m view of the pronouncements of the Supreme Court. Moreover, Article 203/(; provides that the judgment of the Federal Shariat Court shall be binding on all Courts. Even otherwise learned counsel cannot be allowed to raise these contentions while arguing the second appeal as the respondent has no notice of these contentions.

2. The net result of the above discussion is that this appeal is without merit and the same is dismissed with no order as to costs.

M.Y.H./M‑932/L Appeal dismissed.