Haji NAWAB KHAN vs FAZALUR RAHMAN And Another
This matter concerns a petition for special leave to appeal against a High Court judgment that dismissed the petitioner's appeal regarding a pre-emption suit. The petitioner had filed a suit for pre-emption, and the trial court decreed the suit, conditional upon the payment of a specific sum by a fixed date. The petitioner failed to deposit the full amount within the stipulated time due to a calculation error, resulting in the automatic dismissal of the suit as per the terms of the decree. The High Court upheld the dismissal, finding the petitioner responsible for his own negligence. The core legal question was whether the court could extend the time for making the deposit after the default had occurred. The Supreme Court dismissed the petition, holding that where a decree explicitly states that a suit shall stand dismissed upon default of payment, the decree becomes operative of its own force upon such default, and the court lacks the authority to extend the time fixed thereunder. The Court reaffirmed the principle established in Shah Wali v. Ghulam Din that such time cannot be extended.
- Can a court extend the time for making a deposit in a pre-emption suit after the suit has already stood dismissed due to default in payment?
- Does a decree that provides for the automatic dismissal of a suit upon failure to pay a specified amount become operative of its own force upon such default?
- Is a party entitled to an extension of time for a deposit required by a court decree based on a claim of bona fide miscalculation?
1. HAMOODUR RAHMAN, C J. ---The petitioner herein filed a suit for pre-emption of a transaction of sale entered into on the, 5 of December, 1963. Whereby the respondents purchased the property in dispute ostensibly for Rs.1,20,982.50. The pre-emptor alleged in his plaint that the real Price was only Rs. 80,000.
2. During the trial, tire plaintiff petitioner agreed to be bound by the oath of the respondent No. I on the Holy Qur'an as to the value of the property. The said respondent took the oath that the price paid for the property was Rs. 1,20,982.50. The other issues were decided in favour of the petitioner and pre-emotion was decreed on the 9 of May, 1966, subject to the payment of Rs. 1,20,982,50 less the sum already deposited, on or before the 9th of June, 1966.
3. On the 7th of June, 1966, the petitioner Applied for, permission to deposit Rs. 95,786 which he was allowed to do, but, unfortunately, his calculation turned out to be wrong and the deposit short by Rs. 1, 000. In the circumstances, the suit for pre-emption stood dismissed in terms of the decree itself on the 9th of June, 1966.
4. The petitioner, however, filed an appeal in the High Court with a view to getting an extension of time for making the deposit. The defendant also filed an appeal challenging the decree of the trial Court. The High Court Held that the petitioner was himself responsible for the negligence committed by him in failing to deposit the amount in accordance with the direction given in the decree. 'The judgment and decree of the trial Court were quite clear and, therefore, the petitioner could not be heard to say that he failed to male the requisite deposit within the time granted on account of any misapprehension car bona fide miscalculation. The appeal of the petitioner as well as of the respondent were accordingly dismissed without any order as to assts.th th The petitioner now' seek special leave to appeal, and it is contended on his behalf that it was open to the high Court to extend the time. This contention is untenable in view of the decision of this Court in the case of Shah Wali v. Ghulam Din (PLD 1966SC983).
5. Learned counsel appearing in support of the petition contends that this decision needs reconsideration. We are unable to agree with him, for, this is a well-considered judgment: by a Full Court and. Has been subsequently re-affirmed in several cases.
6. In any event, it is clear that no relief could be granted--- because, it the decree of the trial Court started that in the event of the default in the payment the suit "shall stand dismissed, then, on the happening of the default, the decree became operative of its own force and the time fixed there under could not be extended thereafter.
7. In any view of the matter, therefore, the petition is without any merit and is accordingly dismissed.
Cited by 6 cases
- Mst. LALAN BIBI and others Versus MUHAMMAD KHAN 2007 SCMR 1193
- Syed FAZAR HUSSAIN and otherss vs SHABAN and others 2004 PLD Lahore 577
- SARFRAZ And 5 Others vs SULTAN AHMAD And 4 Other 2001 MLD 586
- SARFRAZ and others vs SULTAN AHMAD and others 2001 C.L.R. 574
- SARFRAZ and others vs SULTAN AHMAD and others 2002 MLD 886
- BHAI KHAN vs ALLAH BAKHSH AND Another 1986 SCMR 849