Abdul Hadi Bepari Vs. Safaruddin Mondal and others, 38 DLR (AD) (1986) 265

Case No: Civil Appeal No. 21 of 1984

Judge: Shahabuddin Ahmed ,

Court: Appellate Division ,,

Advocate: Mr. Md. Aftab Hossain,Miah Abdul Gafur,,

Citation: 38 DLR (AD) (1986) 265

Case Year: 1986

Appellant: Abdul Hadi Bepari

Respondent: Safaruddin Mondal and others

Subject: Pre-emption, Property Law,

Delivery Date: 1986-3-12

Supreme Court
Appellate Division
F.K.M.A. Munim CJ
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
A. T. M. Afzal J
Abdul Hadi Bepari
Safaruddin Mondal and others
March 12, 1986
The Code Civil Procure, 1908
Section 148
The State Acquisition and Tenancy Act, 1951
Section 96(1) (4), clause (b) of section 96(6)
The Court may in its discretion exempt a transferee-pre-emptee, in whose favour rateable pre-emption is other­wise allowed, from making the deposit but to adjust the amount due from him against pre­emption money already deposited under sub­section 1, if a prayer to this effect is made to the Court in appropriate time. In this case, no adjustment was prayed for and no such question was raised for determi­nation in the trial Court. It is now too late to raise this question in giving effect to the condition in the order for rateable since the trial Court acted well within the bounds of law. The High Court Division do not find any reason to interfere with the impugned order.………..(10)
Case Referred to-
Shah Wall V. Ghulam Din, (1967) 19 DLR (SC) 143.
Lawyers Involved:
Miah Abdul Gufur, Advocate-on-Record—For the Appellant.
Md. Aftab Hossain, Advocate-on-Record— for Respondent Nos. 1—3.
Ex-parte- Respondents No. 4—32.
Civil Appeal No. 21 of 1984
(From the judgment and order dated 30 October, 1983 passed by the High Court Division, Dhaka, to Civil Revision No. 242 of 1983)
Shahabuddin Ahmed J.
This appeal by a pre-emptee calls in question an order of the High Court Division in revision dated 30 Oc­tober, 1983 maintaining the trial Court's order refusing him extension of time to deposit pro­portional consideration mosey for the purpose of rateable pre-emption. The impugned order has been passed in Civil Revision No. 242 of 1983
2. Respondent Nos. 1 to 3 filed an application under section 96 of the State Acqu­isition and Tenancy Act in the Court of Subordinate Judge, Mymensingh, claiming pre­emption of a land transferred to the appell­ant and three others by a kabala dated 19 March 1974. They (pre-emptors) claimed to be co-shirring in the land by purchase. This claim was resisted by the transferees including the appellant, mainly on the ground that the Pre-emptor was not co-sharers in the holding. The appellant one of the transferees 'however’ made an alternative prayer to the effect that 6e was also a co-sharer in the holding by purchase and fn ease the application for pre eruption was allowed, he should by given rateable pre eruption The trial Court on evidence found both the respon­dents and this appellant to be he co-sharers by purchase though the share of the latter was very small; the court allowed him pre emption to the extent of 8.1/2 decimals of land oat of the total area of 495.1/2 acres of the land transferred. The Court therefore in its judgment dated 30.3.81 directed the appellant to deposit the proportional amount of the consideration that is, Tk 532.40, within two months from the date and made it clear that in the case of his failure to deposit the money within the time the appellant's claim for rat­eable pre-emption "shall stand dismissed".
3. The appellant did not make the depo­sit as directed. Instead he challenged the entire order of pre emption in favour of the pre-emptor by an appeal, F.M.A. No. 317 of 1981, before the High Court Division which however dismissed the appeal on merit by a judgment dated 5 December 1982. The appellant fixed an application seeking special leave to appeal from this judgment of the High Court Division but it was dismi­ssed by the Appellate Division on 21 March 1983. The appellant then appeared before the trial Court with an application for acc­epting his deposit but the trial Court by an order dated 10 April 1983 rejected the applica­tion taking the ground that two months' time as granted in its order dated 30 March, 1981 for the deposit had long expired and that the direction for making the deposit having been given in terms of a final order, it became functus officio and as such it was not within its Jurisdiction to allow any extension of time. This order has been upheld by the High Court Division in revision as stated above.
4. Leave was granted to consider the qu­estion whether the default clause in the trial Court order dated 30 March 1981 to depo­sit She money within the specified time reta­ined its operative force in view of the fact that the order itself was subject to appeal and revision in higher forums in which ope­ration of the impugned order allowing preemption was stayed and whether an extension of the tine far a reasonable period should have been allowed in the circumstances of the case.
5. Mr. Abdul Gafur, learned Advocate for the appellant, has submitted that the trial Court's order as to pre-emption was stayed by the High Court Division in E.M.A. No. 317 of 1981 and had after the dismissal of said appeal a petition for special leave to appeal being Civil Petition No. 135 of 1983 was filed before the Appellate Division. The learned Advocate has further submitted that though the Leave Petition was dismissed by the Appellate Division the trial Court stayed the operation of its own order for one month In view of the pendency of the Leave-petition and that within view months from the date of disposal of We Leave-petition the app­ellant appeared before the trial Court with an application for extending the time to make the deposit. The learned Advocate has relied on the decision in case of Shah Wall V. Ghulam Din, (1967) 19 DLR (SC) 143 and also Invoked section 148, Civil Procedure Code, in support of his argument that refusal of ext­ension of time was illegal and improper in the circumstances of the case.
6. The contention of the learned Advocate that operation of the trial Court's order for pre-emption was stayed till dismissal of the Leave petition is not found to be factually correct. The appellate Court, namely the High 'Court Division, stayed the operation of the order no doubt, but the stay 'remained in force' only up to 5 December 1982 on which date the appeal itself was dismissed. The Leave petition was filed on 9 March 1983, that is, three months four days after the dismissal of his appeal by the High Court Division during which period no stay was obtained from the Appellate Division, nor was any stay sought during the pendency of the Leave-petition. Leave petition was dismissed on 21 March 1983. The appellant instead of ob­taining any stay of the trial Court's order from the Appellate Division pending hearing of the Leave petition approached the trial Court this was not a proper step on the part of the appellant. The trial Court however refrained from executing its order for a month in view of a submission of the appellant that he would be able to obtain an order of stay from the Appellate Division within this period. But when no such stay was granted by the Appel­late Division the provisional order of the trial Court did not amount to an order of stay. Moreover, the Leave Petition itself was filed much beyond the period of two mouths from the High Court Division's order within which the deposit was to be made
7. Coming to section 148, C.P.C., as invoked by the learned Advocate, it empowers a Court to enlarge period of time granted earlier to do certain act. The section reads thus:
“Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Codes the Court may, in its discretion, from time to time, enlarge such period, even tho­ugh the period originally fixed or granted may have expired "
But this section does not apply in a case where the direction to do certain act within the given time is incorporated in a decree or final order of a court unless the decree or the final order is modified in appeal or revision. This is what has been exactly held to the case of Shah Wall, 19 DLR (SC) 143 on which the learned Advocate has relied. It was a suit for pre-emption under the Punjab Pre-emption Act. Facts of the case were that pre-emp­tion was allowed to the respondent subject to his depositing the consideration money of Rs. 3.000/- which was also referred to as the pre­emption money, within a month, but on ap­peal by the appellant- transferee the amount for deposit was railed to Rs 8000/- by the District Judge who further ordered that in case the deposit was not made within a month from the date the suit for pre-emption ''shall stand dismissed.'' The respondent challenged this enhancement in second appeal which however, was dismissed in limine. He then deposited the amount in several installments and proceeded to have his decree executed. The appellant by an application to the trial Court pointed out that the deposit made by the respondent fell short of Rs. 123, 75 and that as the period of one month fixed, for the deposit already expired, the decree for pre­emption stood cancelled In terms of the District Judge's order. The respondent, Pre-emptor, filed an application to the trial Court for exten­sion of the time for making up the deficiency under many sections of law including 148 C.P.C. The trial Court rejected the ap­plication for extension of time on the ground of lack of Jurisdiction and dismissed the suit tot pre-emption. This order of the trial Court, though reversed by the High Court, was up-field by the Supreme Court. The Supreme Court in that connection pointed at the distinc­tion between orders couched In the words "shall stand dismissed" and ''will be dismissed". In the former, the order is final in feat the order of dismissal is of automatic operation there being no scope for any further order; in the latter, the order is not final in that in the case of default, the dismissal is not automatic, but a further order will be requited for the dismissal. Relevant portions of the judgment are quoted below:
"There being in fact a short-fall, the condition that the suit would stand dis­missed on the 30th April 1962, if the amount fixed by she District Judge was not duly deposited, came into operation, 7 and although ii may be regretted that a just claim which had been duly establi­shed was thus brought for a nullity, yet the claim being one for preemption, it is susceptible of being avoided for a techni­cal fault"—Cornelius CJ.
"This section, (148) it is now well set lied, does not apply where the period is fixed by a decree, ....The principle upon which it has been so held is that since a decree formally puts an end to a suit the power of the court to pass any other order with respect to that particular suit thereafter also comes to an end and the court becomes functus officio with regard thereto"—H. Rahman J.
8. Mr. Abdul Gafur has however tried to make out a case for extension of time on the "rule of reasonable time" as referred to in the said judgment of the Supreme Court It has been observed in that judgment that the court Ss not powerless to allow extension of time for deposit la appropriate cases. It appears that the "rule of reasonable time" could have been applied in that case if a prayer to that effect were made before the High Court between the time that the second appeal was filed and the date of 9th October, 1962, when it came up for hearing on its admissibility. There, though the second appeal was filed, no prayer for extension on the time of one month was made pealing the appeal which was dismissed in limine. In the instant case before us, when the appeal was dismissed by the High Court Division on 5 December 1983, no extension of the time was sought from this Court till the filing of the Leave petition or after it was filed, till its hearing. Consequently there is hardly any scope for allowing "reason­able time”. The trial Court while allowing rateable pre-emption to the appellant directed that in case he failed to deposit the money within two months his application for rate­able preemption ''shall stand dismissed”. This order being capable of automatic operation, it became final when the default occurred and the trial Court rightly refused extension of tide on the groused that it became functus officio.
9. Mr. Gafur next contends that since the appellant was one of the transferees entitled to receive the pre-emption money deposited by he original pre emptor under sub section (1) of section 96 of State Acquisition and Tenancy Act, the small amount of Tk. 532.75 which was held due from him should have been ad­justed against the deposit. It is true that the original pre-emptors had deposited the entire commiseration money of Tk. 30.000/- and that, in the ease of ultimate success of the preemption case this money would, go the transferee including the appellant. But provision of law as to deposit by subsequent applicants seeking rateable pre-emption is very clear. Sub-section (4) of section 96 provides that after an application has been made under sub­section (1), any of the remaining co-sharers tenants including the transferee, if one of them, may apply to join in the original application for pre emption within the specified time. Clause (b) of sub-section (6) of this section requires any subsequent applicant for rateable pre-emption, if his claim is allowed, to make proportionate deposit within the time specified by the court, failing which his claim for rate­able pre-emption shall fall through. Clause (b) is quoted below:
"96. (6)(b) If the Court finds that an order allowing the applications made un­der this section is to be made in favour of more than one applicant, the Court shall determine the amount to be paid by each of such applicants and, after apportioning the amount, shall order the applicant or applicants who have joined in the origi­nal application under cub-section (4) to deposit the amounts payable by him or them within such period as it thinks rea­sonable; and if (he deposit is not made by any such applicant within such period, his application shall be dismissed."
10. It is in pursuance of this clause (b) of sub-section (6) of section 96, that the trial Court ordered the appellant to deposit the amount pf Tk. 532.75 within two months. This is the only provision of law for deposit in the case of rateable pre-emption to subse­quent claimant. In the case of a transferee being one of such claimants. In the appellant, though he is entitled to receive the consideration mosey already deposited wader sub section (1) no "separate provision has been made. This means that he is treated as any other remaining co-sharer tenants seeking rateable pre-emption. As such he is bound to make the deposit. However, the court may in its discretion, exempt a transferee-pre-emptee In whose favour rateable pre-emption is other­wise allowed, from making the deposit but to adjust the amount due from him against pre­emption money already deposited under sub­section 1, if a prayer to this effect is made to the court in appropriate time In this case the appellant did not make any such prayer for adjustment at any stage of the proceedings; on the contrary, he challenged the court's order for pre-emption in favour of the original appli­cants. Secondly, the appellant is not the only transferee, for, there are three more transferees who are also entitled to receive the considera­tion money and unless the appellants share in that money is determined, adjustment of his dues will not be possible. Thirdly, the appel­lant's share in the pre-emption has been held to the extent of 8.1/2 decimals of and out of the total area of 495.1/2 decimals. In these circumstances, the court may not use it’s discretion in favour of an adjustment. Be that as it may, in this case, no adjustment was prayed for and no such question was raised for determi­nation in the trial Court. It is now too late to raise this question in giving effect to the condition in the Order for rateable preemp­tion, the trial Court acted well within the bounds of law. We do not find any reason to interfere with the impugned order.
In the result, the appeal is dismissed with­out, however, any order as to costs.