NAMDAR KHAN vs MUHAMMAD AKRAM KHAN and 14 others

' ABDUL SHAK RUL SALAM, J.---This appeal by leave arises in the following circumstances.

1. Relevant facts a e that Mashay Khan (since deceased and represented by his heirs) and Mst. Su aidan Begum respondents filed a suit for pre-emption against the appellant saying that the suit land was sold for Rs,2,000 though shown for Rs,4,000. The appellant claimed that the amount paid was Rs,4,000 and he had improved the land by spending Rs,5,800. The learned trial Court held the price of the land as Rs,4,000 and cost of improvement at Rs,5,260. The suit was decreed and it was "ordered to the plaintiff to pay Rs,9,260 (after deducting the amount of Zari Panjam if already paid) upto 30-7-1980, and failing which the suit of the plaintiff shall stand dismissed with costs". This is vide judgment and decree of the learned Civil Judge-III Class, Shujabad dated 6-7-1980. Both sides appealed, appellant against the pre-emption decree and the respondents against the amount.

The learned Additional District Judge passed an interim order to the following effect:-- "In view of admission of this appeal except the admitted amount of Rs,2,000 the remaining pre- emption money shall not be deposited till further orders."

Finally the appellant's appeal was accepted and judgment and decree of the trial Court set aside and the respondents' suit dismissed vide judgment and decree, dated 13-10-1982. The respondents filed a second appeal bearing No,R.SA. No,165 of 1982 in the Lahore High Court. It was accepted by a learned Judge vide judgment and decree dated 5-12-1988 as follows:-- "The appeal succeeds, the judgment and decree passed by the learned Additional District Judge, dated 13-10-1982 is set aside, the judgment and decree passed by the trial Court dated 6-7-1980 is restored without any order as to costs in view of the intricacy of the questions of law raised before this Courts."

' On 13-12-1988 Civil Misc. No,1-C of 1988 was filed by the respondents with the prayer that they be allowed "to pay the balance sale price and costs of improvement amounting to Rs,6,460 within a specified period and in that respect operative portion of the judgment of the Honourable High Court dated 5-12-1988 be amended in accordance with law". When the application came up for hearing on 21-12-1988 before a learned Judge, the respondents were permitted to deposit the amount of Rs,6,460 subject to all just exceptions. After hearing the application was accepted vide order, dated 30-5-1989.

2. Learned counsel for the appellant has contended that the decretal amount having not been deposited within the prescribed period, the suit of the respondents stood dismissed per the decree, and the learned Judge of the High Court having disposed of the second appeal became functus officio, therefore, it could not allow time for deposit of the balance deoretal amount on a miscellaneous application.

' Learned counsel for the respondents has submitted that the learned' High Court while allowing the appeal of the respondents inadvertently omitted to allow time to the respondents to deposit the balance decretal amount as it is entitled to do so in view of the judgments "Shah Wali v. Ghulam Din alias Gaman and another" PLD 1966 SC 983 and "Ghulam Haider and others v. Mst. Raj Bharri and others" PLD 1988 SC 20.

4. As far as the decree of the trial Court is concerned, the first appellate Court allowed, vide interim order, dated 29-7-1980, the respondents that "except the admitted amount of Rs,2,000 the remaining pre-emption money shall not be deposited till further orders". (Rs,2,000 indisputedly were deposited). At the final stage of the appeal, the pre-emption decree itself was set aside. So, there was no question of non-compliance with the trial Court decree. When the respondents' second appeal was accepted by the learned Judge of the High Court though it restored the decree of the learned trial Court yet it was not noticed that its compliance had become impossible by lapse of time prescribed therein, therefore, in order to make the decree fruitful to the respondents whose appeal was being accepted some time was needed to be given to them to deposit the balance amount. Acts or omissions of a Court do not injure a litigant is a truism by now. Therefore, the omission having been supplied under the impugned order and deposit made, no interference is called for. The appeal is without force. It is dismissed but in the circumstances the parties are left to bear their own costs.