WARIS ALI KHAN Versus ZAIBUN NISA

ORDER

AJMAL MIAN, J. ‑‑‑Leave to appeal is sought against the judgment dated 4‑2‑1989 passed by a learned Single Judge of the Peshawar High Court in Civil Revision No. 36 of 1988 filed by the petitioner, dismissing the same.

2. The facts to be noted are that the respondent filed a suit for pre‑emption against the petitioner in respect of the suit land but was unsuccessful before the trial Court as well as before the first appellate Court. However, a learned Single Judge of the Peshawar High Court through a judgment dated 21‑11‑1979 passed in R.S.A. No. 214 of 1970 filed by the respondent decreed the suit. However, while passing the above decree, neither the amount nor the period within which the respondents were to deposit the balance of the purchase price, was specified by the High Court. The respondents moved an execution application which was resisted by the petitioner and inter alia it was pleaded that since the respondents had not been able to deposit the balance of purchase price i.e. Rs. 977.64 which they should have done within a month or so after the aforesaid High Court's decree, the decree had become infructuous. The learned executing Court rejected the above plea and by its order dated 20‑1‑1988 allowed the respondents to deposit Rs. 977.64 by observing that the absence of the direction of the trial Court was a clerical mistake for which the respondent/plaintiff was not responsible. Against the above order the petitioner filed an appeal which was dismissed by the learned Additional District Judge by his order dated 29‑2‑1988. After that the petitioner filed the aforesaid revision, which was dismissed by a learned Single Judge of the Peshawar High Court. The petitioner has, therefore, filed the present petition for leave to appeal.

3. In support of the above petition, Mr. Abdul Hakeem Khan, learned A.S.C. appearing for the petitioner, has vehemently urged that the executing Court acted illegally in allowing one week's time to the respondents to deposit the balance of the purchase price after the expiry of nearly eight years and thereby revived the decree which had become void. In furtherance of his above submission, he has relied upon the case of Shah Wali v. Ghulam Din alias Gaman and another (P L D 1966 S.C. 983) in which this Court while allowing an appeal filed by a vendee against an order for granting extension of time for depositing of the balance of purchase price, dilated upon the question whether the Court has any such power. In the above cited case the suit was decreed by the trial Court and while decreeing the suit the trial Court directed the plaintiff/pre‑emptor to deposit pre‑emption money by 21‑3‑1961, otherwise his decree would be cancelled. Upon appeal the amount of the pre‑emption money was enhanced by the District Judge. He also directed the pre‑emptor to deposit the enhanced pre emption amount by 30‑3‑1962. He further ordered that otherwise the suit would be treated as dismissed with costs. The pre‑emptor deposited the money on 18‑4‑1962 but due to bona fide mistake the amount was short of Rs.123.75. The pre‑emptor applied to the trial Court for extension of time which application was declined but upon appeal the learned District Judge granted extension which order was maintained by the High Court. Against the above orders the aforesaid civil appeal was filed which was allowed. Since the District Judge, while granting time for depositing of the enhanced amount, expressly provided that in default of deposit the suit would be dismissed with costs, this Court held that there was no justification to extend the time in such a date. However, it was not laid down that in no case extension can be granted. Reference may be made to a subsequent case, namely, Bhai Khan v. Allah Bakhsh and another (1986 S C M R 849) in which this Court has held that the appellate Court can extend time for depositing of pre‑emption amount both during pendency of appeal before it as well as when it dismisses appeal but such power is to be exercised in fit and suitable cases and that it can also refuse to exercise discretion in exceptional cases. In the instant case the High Court has recorded the following finding:‑‑

"(7) True, there is a finding of the trial Court on issue No.5 relating to market value of the suit land as Rs. 2117/64 but since the suit was dismissed and so was the first appeal, there could have been no order in respect of the payment of the balance amount, nor did the High Court set the amount of the time of its payment in its judgment and decree. In the circumstances, I am convinced that the responsibility of non‑payment of the balance amount, if any, of the market value of the suit land fixed by the trial Court, did not rest with the respondents‑decree holders. More particularly when they were under legitimate impression that their plea in the High‑Court pertaining to the actual consideration of the suit land as Rs.800 has been accepted and that they had already deposited Rs.1200. Consequently ‑the allegations of wilful default against respondents‑decree holders can hardly be sustained."

The executing Court as well as the learned Additional District Judge had also taken the above view which found favour with the High Court. In our view, in the present case it cannot be urged that the executing Court has not exercised discretion reasonably and properly keeping in view the above facts. Even otherwise we are of the view that the impugned orders/ judgments are just and proper and, therefore, it is not a fit case for grant of leave. Leave is accordingly refused.

AA./W‑88/S Leave refused.