MOHAMMAD SHABBIR AND Others vs BASHIR AHMAD

ORDER

1. SALAHUDDIN AHMED, J.-This petition for special leave arises out of a suit for pre-emption instituted by the respondent against Murad Ahmad, predecessor-in-interest of the petitioners. The suit was decreed in favour of the plaintiff on payment of Rs. 20,000 on or before the 23rd of April 1965, after deducting 1 /5th of the amount already deposited by him under section 22 of the Punjab Pre- emption Act. In default of the payment as directed it was order, d that the suit would stand dismissed with costs.

2. Upon an appeal preferred by the plaintiff -respondent on the ground that the value of the land fixed by the trial Court was excessive, the learned District Judge on the application of the respondent herein passed the following interim order ex parte on the 23rd of April 1965 :- "The period of depositing the pre-emption amount is extended up to 21-5-1965. Notice to the respondent for date . . . . . . . . . . ."

3. The respondent's appeal was, however, dismissed on the 4th of May 1965, and the judgment end decree of the trial Court were maintained in their entirety. No fresh time was allowed to deposit the pre-emption amount. In the meantime the pre-emption amount was deposited within the aforesaid extended period as contained in the interim order of the learned District Judge, arid at a time when the appeal was still pending.

4. The revision petition filed by Murad Ahmad against the order of the learned District Judge was dismissed on the 7th of July 1972, by a learned Single Judge of the High Court. The petitioners now seek leave to appeal from this order.

5. It was contended on behalf of the petitioners that the learned District Judge was not competent to extend by an Interim order the time of payment of the pre-emption amount as fixed by the trial Court.

6. This contention was rightly rejected by the learned Judge of the High Court on the basis of the decisions of the Supreme Court in the cases of F. A. Khan v. Government of Pakistan (PLD 1964 SC 520) and Shah Wall v. Ghulam Din (PLD 1966 SC 983). In the latter case the observations relied on in particular appeared in the dissentient judgments of Chief Justice Cornelius and Hamoodur Rahman, J. As they then were.

7. The appeal before the District Judge was of right. As the appeal was a continuation of the suit, the learned District judge was fully competent under section 151 of the Code of Civil Procedure to pass the interim order in question. 7 he appeal having been filed on the very date the time fixed by the trial Court for the payment of the pre-emption money was due to expire, a refusal to exercise such power would not only have been improper but would have had the effect of making the appeal itself infructuous, and depriving the respondent of his statutory right of appeal.

8. It may be contended that the respondent could have deposited the money within the time specified by the trial Court, and pursued his appeal.

9. The law, however, does not oblige the appellant to do so, and the respondent was therefore not bound to do so.

10. The order of the learned Single Judge is perfectly legal, and we fully agree with his reasons therefore. The petition is accordingly dismissed.