MUHAMMAD YOUSF Versus MUMTAZ BIBI TARIN

ORDER

1. NASIM HASAN SHAH, J.- The petitioner purchased the suit land through a registered sale-deed, dated 5-5-1975 and its price mentioned in the said sale 0sed was Rs. 85,000. A Suit for per-emption was filed by the respondent asserting her superior right and further alleging that the actual price paid was only Rs. 45,000 and the sum of Rs. 85,000 was shown in the registered sale deed fictitiously.

2. The learned trial Court granted the pre-emption decree on 16-12-1978 but finding that the actual sale price of the land was, indeed, Rs. 85,000, the decree was granted on payment of a sum of Rs. 85,000.

3. The petitioner herein did not feel aggrieved by the said judgment and decree and it was only the respondent who felt aggrieved by the non acceptance of her claim that the sale price was only Rs. 45,000 and not Rs. 85,000 and challenged the decree by filing an appeal before the Lahore High Court, Bahawalpur Bench.

4. The Deputy Registrar (Judicial) of the Lahore High Court, Bahawalpur Bench, Bahawalpur, returned the appeal on 9-1-1979 with the remarks that in view of the Punjab Civil Courts (Amendment) Ordinance XXIX of 1978, the appeal was not competent before the High Court and the same may be filed in the proper Court. The respondent, thereupon, on 13-1-1979, filed the appeal before the District Judge, Bahawalpur, which was admitted to a regular hearing and the execution of the impugned decree passed 6y the learned trial Judge was stayed during the pendency of- the appeal. The appeal, however, was finally heard and dismissed by the said learned District Judge on 21-7-1980. The respondent thereafter filed a second appeal before the Lahore High Court Bahawalpur Bench at Bahawalpur, which came up for hearing during the vacations on 7-9-1980. The learned Judge hearing the matter directed the case to come up in motion after the vacation but suspended the operation of the impugned decree, meanwhile subject to notice.

5. The case came up in motion with notice to the other side (petitioner herein) on 8-12-1982. On this date, the counsel for the respondent herein made a statement that the respondent was prepared to deposit the sum of Rs. 85,000 by way of pre-emption money, as found by the Courts below and sought a date for making the said deposit. The learned Judge in the High Court whereupon dismissed the R. S. A. as having been withdrawn. However, he allowed the pre-emption money of Rs. 85,000 to be deposited on or before 8-1-1983. The amount was deposited within the aforesaid period, namely, on 5-1-1983. The petitioner herein has now come to this Court seeking leave to appeal against the aforesaid order passed by the learned Single Judge, dated 8-12-19 2, allowing the appeal to be withdrawn after granting a month's time to deposit the balance of the pre-emption amount.

6. The main contention raised by Mr. S. A. Rehman, in support of this petition for leave to appeal, is that the learned trial Judge had granted a decree in favour of the respondent any 17-12-1978 but on condition of payment of the sum of Rs. 85,000 before 15-1-1979. The said amount however, was not deposited within stipulated time but has been deposited on 5-1-1983; hence the decree had become inoperative. In this connection, it is submitted that although the learned District Judge staved the operation of the decree of the trial Court on 13.1-1979 and, thereafter, the High Court also issued a stay order on 21-7-1980 after the dismissal of the appeal before the District Judge on 7-9-1980, the proceedings before the District Judge were, in fact, without jurisdiction and, therefore, all the orders passed by him including the order, dated 13-1-1979 staying the operation of the decree of the trial Judge, were void. The submission is that the respondent's right of appeal continued to vest to the High Court, notwithstanding the promulgation of the Punjab Civil Court Amendment Ordinance, 1978, as it had no retrospective effect.

7. While perusing the papers placed by the petitioners on this Court's paper book we discovered a copy of an interim order passed by the District Judge, Bahawal Nagar on 16.3-1980, wherein an objection to this effect was noted by him in the following words: -

8. (Sd.) District Judge Bahawalnagar."

9. However, the order, dated 2-4-1980, on which date this objection was to be heard and disposed of, was not placed on the record. We, therefore, summoned the original record to peruse the order passed on 2-4-1980. The records have been received and we have now seen the said order. Herein, we observe that both the parties agreed before the learned Judge that in view of the ruling of the Lahore High Court in Sadar Din v. Elahi Bakhsh and another (P L D 1976 Lah. 1) the Court of the learned District Judge had the jurisdiction to hear and decide the appeal. Consequently, when the appeal was ultimately heard and disposed of by the learned District Judge vide his order, dated 21-7-1980, no reference to this objection is made therein.

10. There is, thus, no merit in the contention raised by Mr. S. A. Rehman, in support of this petition for leave, which must, therefore, fail and is accordingly, dismissed hereby.

11. S. Q. Petition dismissed.