AKBAR ALI Versus BAGH DIN

ORDER

1. SHAFIUR RAHMAN, J.‑‑ The petitioner, a plaintiff in a pre‑emption suit seeks leave to appeal against the judgment of the Lahore High Court dated 4‑3‑1979 whereby a first appeal filed by him, was dismissed.

2. The petitioner was initially successful in the civil Court in obtaining a decree of possession in following terms:‑‑

3. "It is ordered that the suit of the plaintiff succeeds and the same is decreed in his favour and against the defendants vendees in the sale price of Rs.1,04,000. The plaintiff has already deposited Rs.20,800 as Zare‑Panjum. He shall deposit the balance amount of sale price of Rs.83,200 upto 5‑2‑1977 failing which his suit shall stand dismissed. As the plaintiff did not offer the total sale price to the defendants vendees he is not held entitled to any costs of the suit."

4. It appears that the 5th of February, 1977 was declared a holiday. 6th was a closed holiday being Sunday. On 7‑2‑1977 the learned Civil Judge was on leave and on 8‑2‑1977 an application was made to the Presiding Officer seeking extension of time for making the deposit which was refused on the ground that he had after passing the decree become functus officio. An appeal to the High Court was taken where the view that the Court had become funetus officio to grant extension in time was upheld.

5. The learned counsel for the petitioner invoked before us section 9 of the General Clauses Act read with Order XX, rule 14 of the C.P.C. for claiming a right of depositing the amount on 8‑2‑1977. Besides, it is contended that he had a good ground for being excused in the matter. The fact that the petitioner had applied for extension of time when the Court had become functus officio is not in dispute. It had become functus officio in view of this Court's decision in Shah Wali Ghulam Din alias Gaman and another P L D 1966 S C 983. The benefit of section 9 of the General Clauses Act could be claimed or e extended only if the petitioner had made a prayer not for extending the time for deposit but for depositing the amount or had deposited the amount on 7‑2‑1977. In the circumstances of the case, we consider that it is not a fit case for grant of leave to appeal. The petition is, therefore, dismissed.

6. M.I. Petition dismissed.