Abdul Hakeem Khan Vs Habibullah etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, D.I.KHAN BENCH

(Judicial Department)

CR No. 201 of 2012

JUDGMENT

Date of hearing 26.10.2015

Appellant-petitioner Abdul Hakeem by Asghar Khan Kundi Advocate

Respondent Habib Ullah by Shaikh Iftikharul Haq Advocate MUHAMMAD GHAZANFAR KHAN, J.- Through the

instant revision petition, the petitioner has called in question the judgment dated 09.02.2012 rendered by learned District Judge, Tank, whereby his application under section 148 read with section 151 C.P.C was dismissed.

2.In essence, petitioner had filed a suit for possession through pre-emption against respondents which was decreed in his favour to the extent of 1/3rd of the suit property, vide judgment and decree dated 24.5.2003.

However, the learned District Judge, Tank vide judgment and decree dated 28.5.2005 accepted the cross objection of petitioner and modified the judgment and decree of learned trial Court by enhancing the decree to the extent of 1⁄2 share of the suit property. Against the judgment and decree dated 28.5.2015, respondents filed revision petition before this

Court. During pendency of revision petition, the learned Senior Civil Judge, Tank was asked for report regarding deposit of remaining amount of pre-emption money by petitioner as directed by learned District Judge, Tank. The learned Senior Civil Judge, Tank apprised that no decretal amount after 02.10.1999 was deposited in the Court. In this view of the matter, revision petition filed by the respondents was dismissed as withdrawn on 23.6.2011 and the petitioner was directed to approach the proper forum for the said purpose.

3.Thereafter, the petitioner submitted an application under section 148 read with section 151 C.P.C before the learned District Judge, Tank for permission to deposit the said remaining decretal amount which was dismissed vide judgment dated 09.02.2012, hence the instant revision petition.

4.Learned counsel for the petitioner argued that section 148 CPC gives ample powers to the Court to extend time for deposit of pre-emption money, but the learned Court below wrongly and in a cursory manner dismissed the application of the petitioner for deposit of remaining pre-emption money.

5.On the contrary, the learned counsel for respondents argued that under Order XX Rule 14 C.P.C, if a person fails to deposit the pre-emption money in a

specified time, the suit shall be dismissed with costs, therefore, the learned Court below rightly dismissed the application of petitioner.

6.I have heard arguments of learned counsel for the parties and have gone through the record and law on the subject.

7.Though extension of time is discretionary with the Court but this discretion cannot be used arbitrarily. It is an admitted fact that the amount enhanced by the learned District Judge, Tank has never been deposited by the petitioner/decree holder within stipulated time, so, the decree passed by the District Judge, under the law, has lost its validity. The provisions of Order XX Rule 14 C.P.C are mandatory in nature and non-compliance of the same entails penal consequences, so, the application of petitioner was rightly dismissed by the learned District Judge, Tank.

However, the decree of learned trial Court is intact as the appeal of respondents against the same was dismissed and revision petition before this Court was withdrawn. Even section 25(1) of NWFP Pre-emption Act, 1987 provides that Court shall require the pre-emptor to deposit the remaining amount within thirty days of passing of decree, but there is no provision in the said Act for extension of time for deposit of money. The learned District Judge has committed no illegality or irregularity while dismissing the

application of petitioner, warranting interference by this Court in exercise of its revisional jurisdiction.

8.For the reasons mentioned above, the instant revision petition being bereft of any merit and substance is hereby dismissed.

Announced.

Dt:26.10.2015.

Habib/* JUDGE