MUHAMMAD IRSHAD vs Ch. FAZAL HAQ And 5 Other

1. MUHAMMAD AFZAL ZULLAH, CJ.---This appeal through leave of this Court arises out of a pre- emption matter in which revisional order of the High Court has been brought under challenge. The order for conversion of the petition for leave to appeal into an appeal reads as follows:----- "Leave to appeal has been sought by one of several pre-emptors in a case in which the dispute now is between two rival pre-emptors, against the dismissal by the High Court of petitioner's Civil Revision.

2. "On the success of the two contesting rival pre-emptors in obtaining a pre-emption decree, according to learned counsel the suit land was to be divided by them to the extent of half each.

3. The petitioner was to deposit the pre-emption amount upto a certain date. On his failure there was an option for the respondent rival pre-emptor to make the same deposit and thus obtain the benefit of the entire transaction. The petitioner having failed to make the deposit within time originally specified, has lost the success achieved at the trial stage of the suit.

4. "According to learned counsel the petitioner had challenged the decree to the extent of half of the suit land passed in respondent's favour. He had also sought interim relief in the nature of "stay". But on account of technical errors based on innocent mistakes the stay order, it has been held, would be of no help to the petitioner.

5. "Although the learned counsel argued on the aforestated basis that this could not have been treated as a case of real default in making payment, we feel that it is a fit case for grant of leave to appeal on the basis of some recent decisions of this Court--in one of which it was held that an Appellate Court even when dismissing the appeal in a pre-emption matter should grant a reasonable time to the successful pre-emptor for deposit of the amount. See Bhai Khan v. Allah Bakhsh (1986 S.C.M.R. 849).

6. "Accordingly, we convert this petition into appeal".

7. Learned counsel for the appellant has reiterated the points noted in the above reproduced order.

8. He has relied on the following observation made in the case of Bhai Khan: "From the foregoing discussion, it is clear that the proposition that the Appellate Court has power to extend time is not disputed by the High Court. All that it has held this will be exercised in fit and suitable cases and that the present case was not such a case. The submission of the appellant, however, is that in view of this Court's judgment in Khurshid Akbar v. Mian Manzur Ahmad (1982 S.C.M.R. 824) the Appellate Court is bound while dismissing the pre-emptor-appellant's appeal to grant `reasonable time' to him to deposit the balance of the pre-emption amount in every case.

9. We do not agree and we may clarify that although normally the Appellate Court should grant `reasonable time' to the pre-- emptor in cases of this kind while dismissing his appeal but it can, in exceptional cases such as the present refuse to exercise its discretion in his favour".

10. The law declared thus is that normally the Appellate Court should grant reasonable time to the pre-emptor while dismissing his appeal, but, it can in exceptional cases refuse to exercise its discretion in his favour. In the said case the reason for refusal was that the High Court had found as a fact that the pre--emptor did not have sufficient funds and was merely interested in gaining time by filing appeals. There is no such feature in this case neither as the learned counsel for the respondent argued the matter on those lines. According to him the appellant had not filed an appeal in his own case and that in the appeal filed in the other case, he could not have been granted the extension of time. Secondly, he contended that the stay order issued by the Appellate Court could not inure for the benefit of the appellant regarding the subject-matter under discussion.

11. In so far as the second point is concerned the learned counsel for the respondent seems right that no attention was paid by the Appellate Court to the question of postponing the payment of the pre-emption money during the pendency of the appeal in a clear manner. If proper mind would have been applied the payment would certainly have been postponed. Who was at fault, the Court or the counsel for the appellant it is not necessary to determine in this case; because on the law point decided in the case of Bhai Khan the Appellate Court was required even in a case where no application was made for interim order, to examine when deciding the appeal to give reasonable time to the appellant/pre-emptor. In that examination, the refusal to grant time could be only in exceptional cases. In this case the Appellate Court was bound to give reasonable time because there were no exceptional circumstances to exercise discretion otherwise.

12. The argument of the learned counsel for the respondent that no appeal was filed in the appellant's own case is without any force in the circumstances of this case. Two cases by the rival pre- emptors had arisen out of the same matter. Both were parties before the Appellate Court. Whether in appeal in one or the other case, the subject-matter had been re-opened for the appellate adjudication. Accordingly, under this enabling situation as also under Order XLI Rule 33 the appellate Court, as held above, could and should have allowed time. In these circumstances this appeal is allowed. While setting aside the High Court judgment, we allow ten days time (as requested by the learned counsel for the appellant as being sufficient in this case) for making the necessary deposit. There shall be no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.