MUHAMMAD SHAKOOR Versus ZAROOB KHAN ZAHIDI
CH. MUHAMMAD IBRAHIM ZIA, J.--- This appeal with the leave of the Court is addressed against the judgment and decree of the High Court dated 22.3.2010, whereby while accepting the appeal filed by respondent No.1, the judgment and decree of learned Additional District Judge Sehnsa, Camp Kotli dated 24.6.2009 has been set aside and the judgment and decree of Civil Judge, Kotli, Court No. 1 had been restored.
2. Necessary facts forming the background of this appeal are that the predecessor of the appellants filed a suit for pre-emption against the respondents in the Court of Civil Judge Kotli on 11.10.2007 in which he challenged the sale-deed dated 9.8.2006. On 17.6.2008, the predecessor-in-interest of appellant was directed to furnish 1/5th of the probable amount till 12.7.2008 or before. The appellant failed to deposit the 1/5th amount within the prescribed period. The learned Civil Judge, vide judgment and decree dated 12.7.2008 dismissed the suit for non-compliance of the order dated 17.6.2008. Feeling aggrieved the appellant preferred an appeal in the Court of Additional District Judge Kotli on 22.9.2008. The appeal was entrusted to Additional District Judge Sehnsa, Camp Kotli who after necessary proceedings, accepted the appeal, set aside the judgment and decree of Civil Judge, Kotli dated 12.7.2008 and remanded the case with the direction that if the appellant deposits the 1/5th of probable amount till 8.7.2009, the suit shall be decreed in his favour and in case of non-compliance, his suit will be deemed dismissed. Respondent No.1 challenged the propriety of the judgment and decree of Additional District Judge Sehnsa, Camp Kotli, through an appeal in the High Court on 1.7.2009. The High Court after necessary proceedings, set aside the judgment and decree of Additional District Judge Sehnsa, Camp Kotli and restored the judgment and decree of Civil Judge Court No.1, Kotli dated 12.7.2008. Muhammad Shakoor challenged the correctness and legality of the judgment and decree of the High Court through the instant appeal. During pendency of appeal, the appellant Muhammad Shakoor died who is now represented by the legal heirs.
3. Mr. M. Reaz Alam, Advocate, the learned counsel for the appellants, strongly objected to the impugned judgment on the ground that it is against the settled principle of law and justice. The trial Court illegally ordered for depositing the 1/5th of probable amount rather it should have directed the plaintiff appellants to furnish the surety. The plaintiff appellants, within time filed the application for amending the order dated 17.6.2008. The trial Court seized with the matter, hence, it was enjoined upon it to accept the application. He further submitted that the first appellate Court has rightly accepted the appeal whereas in the impugned judgment, the learned single Judge of the High Court fell in gross error of law while setting aside the judgment.
4. Conversely, Sardar Muhammad Azam Khan Advocate, the learned counsel for the respondents, strongly opposed the appeal on the ground that the trial Court has passed a definite final order in which it has been categorically mentioned that in case of failure in compliance with the order dated 17.6.2008, the suit shall be treated as dismissed. The plaintiff-appellant has neither within prescribed period of limitation complied with the order nor applied for extension of time. The application filed for substitution of surety was time barred and at that time the trial Court had become functus officio, therefore, the impugned judgment of the High Court is against law. He placed reliance upon the cases reported as Muhammad Ishfaque Khan v. Rehman Khan and 11 others [2011 SCR 18], Syed Yousaf Shah v. Khawaja Muhammad Sharif and others [2004 YLR 1769], Azad Jammu and Kashmir Government and 10 others v. Abdul Rashid and 5 others [2002 CLC 1662], Muhammad Kabir Khan v. Mst. Anees Begum [2005 SCR 23] and submitted that the appeal be dismissed with costs.
5. We have considered the respective arguments of the learned counsel for the parties and also gone through the record of the case. For proper appreciation of the matter, the relevant material is the order of trial Court. The trial Court passed the order dated 17.6.2008 which reads as under:-
This order categorically speaks that the plaintiff appellant was directed to deposit 1/5th amount of sale deed till or before 12th July, 2008, otherwise, the suit shall be deemed dismissed. A perusal of record reveals that neither before nor till 12th July, 2008, the plaintiff-appellant complied with the Court order dated 17.6.2008. According to record, on 12th July, 2008, he applied for depositing the surety instead of 1/5th amount, without submission of any application for extension of time. The trial Court treated the suit as dismissed. The language used in the trial Court's order is clear that the plaintiff-appellant was directed to deposit 1/5th of the amount of sale-deed till or before 12th July, 2008.
6. The word "till" is of vital importance. In the Universal English Dictionary, Edited by Henry Cecil Wyld, RKP TOPPAN, the word "till" has been defined as under:- "till (I), prep & conj. [1. til; 2. til]. O.E (Nthn. Dial) & M.E. 'to, up to; perh. Fr. O.N. til in same sense; cogn, w.O.H.G zil, 'limit, end, aim'; cp. Goth, (ga) tilon, 'to obtain, reach, & (ga) tils, 'convenient. Fit'; O.E. til, good, is the same word, a prep. To, up to, down to, up to the time when: till tomorrow; till next week; till then; till now; true till death; b conj., in same sense as the prep,: wait till I come; till the day breaks; till death us do part'. till (II), vb. trans, O.E. tilian, to strive after; to provide for; to treat medically; to cultivate (land)'; fr. Same base as prec. To Cultivate (the land); to prepare (land) for sowing by ploughing 7 c. till (III), n. Connected w. M.E tillen, 'to pull'; ep. O.E (for) tyllan, to draw lead astray'; see also tiller (II)O Small drawer in a shop counter where money is kept."
In the 21st Century Practical Dictionary (English to English and Urdu), Elite Edition, by M. Zaman M.A Eng. & Eco.) Naveed Akther M.Sc. the word "till" has defined as under:
(til) n.
1. A money box 2 drawer for holding cash, prep. up to the time of wait till tomorrow before calling. adv. to the time when. wait till mother gets home. v.t. to cultivate. The farmer tills the land."
These dictionary meanings clearly connotes that the plaintiff-appellant was under legal obligation to comply with the trial Court's order till 12th July, 2008; which means before commencing this date. In such state of affairs, when a Court has already passed an order and has become functus officio, thereafter, the powers do not remain with the Court for entertaining any application in such matter. This Court, in a recent judgment in the case titled Muhammad Siddique Khan v. Sardar Muhammad Akbar Khan and others, Civil Appeal No. 115 of 2008 decided on 4.9.2012, while dealing with this proposition has observed as under:
6. Before determining the sufficient cause we will deal with the question whether under section 148, C.P.C., after passing of final decree, the Court becomes functus officio or it can pass an order for extension of time. Section 148, C.P.C., postulates that when any period is fixed or granted by the Court for doing of any act prescried or allowed by the Code, the Court may, under its discretion from time to time enlarge such period even though the period originally fixed or granted has expired. The section is applicable in the case where the Court has fixed any period for doing an act. The Court has power to enlarge and extend the time if it has seisin over the matter. If the Court has passed a preliminary decree and the matter is subjudice before the Court, then the Court has power to extend time but when the Court has passed a final decree and the matter is not pending before it the Court, after passing such final decree, becomes functus officio and cannot enlarge the time. The decree normally puts end to the suit and the power of the Court to pass any other order with regard to that particular suit thereafter also comes to an end and the Court becomes functus officio. However, in preliminary decree the Court doesn't become functus officio but still retains control over actions and has power to make orders including extension of time. In a pre-emption suit the decree is passed under Order XX, Rule 14, C.P.C. we deem it proper to reproduce Order XX, Rule 14, C.P.C., which is as under:-
"14. Decree in pre-emption suit .---(1) Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase-money has not been paid into Court, the decree shall---
(a) Specify a day on or before which the purchase-money shall be so paid, and
(b) Direct that on payment into Court of such purchase money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with costs.
(2) ...............................................
(a) ..........................................
(b) .........................................."
A perusal of above reproduced rule reveals that while passing a pre-emption decree, the Court shall fix a date on or before which the purchase-money is to be paid and the Court shall direct the plaintiff to deposit in the Court the purchase-money together with the costs on or before the day referred to in clause (a) of subsection (1). If the decretal amount is not paid, the suit shall be dismissed with costs. Such decree is final one and the Court becomes functus officio. The Court has no control over the mater after passing the decree. While passing the final decree, if the Court orders that if a decree-holder fails to deposit the decretal amount on or before a particular date the suit shall stand dismissed, in that case the order operates automatically but while passing the decree, if the Court orders that if the decree-holder fails to deposit the decretal amount on or before a particular date, the suit will be dismissed, in that case a separate order in default is necessary for the dismissal of suit and the Courts always have control over the matter. The proposition came under consideration of this Court in the case reported as Syed Bashir Hussain Shah and 11 others v. Ghulam Akram and 6 others [PLD 1983 SC(AJ&K) 174], wherein, in para 13 it has been observed as under:-
"13. This section, it would appear, gives power to the courts to extend the time previously fixed or granted for the doing of any act prescribed or allowed by the Code of Civil Procedure. They can do so even after the period originally fixed has expired. This section, it is now settled, does not apply where the period if fixed by a decree in a suit unless the decree is in the nature of preliminary decree or the Court still retains seisin over the action. The principle upon which it has been so held is that since a decree normally puts an end to a suit, the power of the Court to pass any other order with respect to that particular suit thereafter also comes to an end and the Court becomes "functus officio" with regard thereto. Exception made in the case of preliminary decree is also on the same basis that in the case of such a decree the Court does not become "functus officio" but still retains control over the action and, therefore, has full power to make necessary order thereunder including an order for the extension of time."
7. We have also considered the authority referred to by the counsel for the respondents i.e. Mst. Zulekha Khatoon v. Ch. Muhammad Yasin and 5 others [2004 CLC 1443].The captioned case relates to the deposit of 1/5th of the consideration amount. The proposition before the Court was that when the plaintiff has moved an application that instead of 1/5th amount he may be allowed to furnish the security in the like amount. The trial Court at one side dismissed the application and on the other side extended the time. This Court observed that after expiry of time the Court has become functus officio and no order an be passed, as the provisions of section 21 of the Right of the Prior Purchase Act are mandatory. The authority is not helpful to the case of the respondents.
8. For determining the question whether the decree is final and operates automatically or some further order has to be passed, we have to look into the decree passed by the District Judge. The District Judge passed the following decree:-
The District Judge in unequivocal terms, has ordered that if the plaintiff/appellant deposits Rs. 3,30,000/- the total decretal amount together with the costs of the sale-deed up to 25.10.2005 in the trial Court, then the decree shall become final, otherwise the suit filed by the plaintiff/appellant shall stand dismissed. The language of the decree is crystal clear and leaves no doubt that the decree is final and it operates automatically. Had the Court not passed a final order, then it had jurisdiction to extend the time. The case of the plaintiff, appellant herein, is not covered under the provisions of section 148, C.P.C.
9. Since we have reached to the conclusion that after passing the final decree, the Court was no more seized with the matter and it has become functus officio, therefore, the question of sufficient cause is not relevant for the decision of the appeal. It will be an exercise in futility."
In view of the principle of law laid down in this case the plaintiff-appellant has failed to point out any illegality in the impugned judgment, thus, the appeal being without any substance is hereby dismissed with no order as to costs.
ZC/1/SC(AJ&K) Appeal dismissed.