KHADIM HUSSAIN vs Ch. MUHAMMAD IBRAHIM And Other
This matter arises from a petition for leave to appeal directed against the judgment of the Lahore High Court, which refused to restore a pre-emption appeal filed by a minor plaintiff. The core legal question concerned the restoration of an appeal dismissed in default due to the death of the minor's next friend, and the subsequent willingness of the petitioner to pay the original pre-emption price fixed by the trial court. The Supreme Court declined to grant leave to appeal, noting that since the petitioner was now willing to pay the original pre-emption amount of Rs. 14,500, an appropriate application could be made before the High Court for permission and time to deposit the pre-emption money. The Court held that the High Court possesses the power to grant reasonable time to a pre-emptor to make the deposit of pre-emption money upon the disposal of an appeal, and that the time spent pursuing the matter diligently in the Supreme Court would not serve as a bar to such an application.
- Whether the High Court has the power to grant reasonable time to a pre-emptor to deposit pre-emption money upon the disposal of an appeal?
- Can an application for permission and time to deposit pre-emption money be made after abandoning the contest regarding the pre-emption price?
- Whether time spent in pursuing a bona fide petition for leave to appeal in the Supreme Court acts as a bar to seeking time for depositing pre-emption money in the High Court?
ORDER
MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought from judgment dated 19-12-1978 of the Lahore High Court; whereby the Court refused to restore plaintiff (pre-emptor's) appeal filed in a matter of pre-emption.
2. Khadim Hussain (petitioner) a minor plaintiff (pre-emptor) having succeeded in a pre-emption suit challenged in appeal the price to be paid for the land. It was dismissed by the District Court. He then filed an R . S. A. In the High Court for the same purpose, namely, the reduction of the pre- emption money. It was admitted to regular hearing. But subsequently on the death of Nemat Ali who had acted as next friend of the minor petitioner, the appeal was dismissed in default. An application (Civil Miscellaneous No. 6460-C of 1976) made for the restoration of the appeal having been dismissed by a learned Single Judge, leave to appeal has now been sought.
3. Learned counsel, after some arguments, stated that the petitioner is willing to pay the original pre-emption amount fixed by the trial Court, namely, Rs. 14,500 and is no more raising any contest in so far as that real subject-matter is concerned.
4. If that is so, an application should be made before the High Court seeking permission and time to deposit the pre-emption money.
5. Learned counsel stated that the time spent in this Court might be treated as a bar for making such an application.
6. The petition for leave to appeal was filed bona fide and has been pursued with diligence, therefore, application in that behalf can also be made before the High Court. As to the competency of the High Court on disposal of appeal in a pre-emption matter to grant reasonable time to the pre-emptor to make the deposit of the pre-emption money, it has been held in a number of judgments of this Court that the High Court has such power. This view has been reiterated in a recent judgment of this Court in Bhai Khan v. Allah Bakhsh Civil Appeal No. 864 of 1984, dismissed on 5-3-1986.
7. With these observations we do not consider it a fit case for grant of leave to appeal which is accordingly declined.