Ahsan Ganai vs Gaffar Doom

K.V. Gopalakrishnan Nair, J.—The Respondent instituted a suit to pre-empt the sale of the suit property to the Petitioner. Issues were duly

settled and the Plaintiff adduced part of his evidence in the case. While so, the Defendant applied to the trial Court for calling upon the Plaintiff to

deposit 1/5th of the probable value of the suit property or furnish security in respect of such probable value the application expressly invoked the

provisions of Sub-section (1) of Section 21 of the Right of Prior Purchase Act. The trial Court dismissed the application on the ground that the

Court had no jurisdiction after the settlement of issues in the suit to ask the Plaintiff to make a deposit or furnish security u/s 21(1). The aggrieved

Defendant has come up to this Court in revision challenging the validity of the order passed by the trial Court.

It is convenient at the outset to read the relevant provisions of Section 21.

(1) In every such suit the Court shall at, or at any time before, the time of settlement of issues require the Plaintiff to deposit in the Court such sum

as in the opinion of the Court equals to one fifth of the probable value of the land or properly or require the Plaintiff to give security to the

satisfaction of the Court for the payment of a sum not exceeding such probable value within such time as the Court may fix in such order.

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(3) Every sum deposited or secured under Sub-section (1) or (2) shall be available for the discharge of costs.

(4) If the Plaintiff fails within the time fixed by the Court or within such further time as the Court may fix to make the deposit or furnish the security

under Sub-section (1) or (2) his plaint shall be rejected or his appeal dismissed as the case may be.

(5) (a) If the Plaintiff withdraws any amount deposited in the aforesaid manner his suit or appeal, shall be dismissed.

(b) If any security furnished for any cause becomes void or insufficient, the Court shall order the Plaintiff to furnish fresh security or to increase the

security, as the case may be within a time to be fixed by the Court and if the Plaintiff fails to comply with such order, the suit or appeal shall be

dismissed.

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Sub-Section (1) of this section is couched in mandatory, language. It makes it incumbent upon the ""Court in which the preemption suit is instituted

to require the Plaintiff to make the deposit ""or, furnish security as the case may be ""at, or any time before, the time of settlement of issues."" It is

common ground that the trial Court did not call upon the Plaintiff to deposit the sum-of money or to furnish security as required by the provisions of

Section 21(1). It is also common, ground that issues in the suit had been settled much before the Defendant Petitioner moved the trial Court for

requiring the Plaintiff to deposit money or furnish security. The point in dispute is as to the right of the Defendant to call in aid Section 21 (1) after

the settlement of issues and the jurisdiction of the Court to comply with his request at that stage of the suit.

The learned Counsel for the Petitioner Defendant has urged that he is entitled to move the Court to require the Plaintiff to act according to the

provisions of Section 21(1) when the Court had failed in its duty to call upon the Plaintiff earlier to do so. It is also argued that injury caused to the

Defendant on account of the omission of the Court to comply with the mandatory requirements of Section 21(1) can and must be remedied by the

Court itself and that the Court has authority and ample jurisdiction to do so. On the other hand the learned Counsel for the Plaintiff-Respondent

has vigorously contended that the operation of Section 21(1) is expressly limited by the words ""at, or at any time before the time of settlement of

issues"", and that the Court has therefore-no jurisdiction to require of the Plaintiff compliance with the provisions of the section after the expiry of

the time prescribed in the section itself. He also points out that Section 21 does not at ail confer any right on the Defendant to apply to the Court to

require the Plaintiff to deposit a sum of money or to furnish security. The section confers power only on the Court and the Defendant is given no

right under it. We have to see which of these rival contentions is entitled to succeed.

It is plain enough that a Court, on which a duty is cast by statute to do a particular thing cannot properly refrain from doing it. And if it wrongly

refrains, the party affected by its error must have an effective remedy. What is perhaps even more important is that a Court itself should, without

exceeding the bounds of law, endeavor to set right Its own mistake and thus try to save a party from the harm caused by its wrong act. Erroneous

omissions on account of oversight or inadvertence may take place in the administration of justice by Courts. But to say that once such an error is

committed by a Court, the affected party has no means whatsoever to rectify the error or that the Court is altogether helpless to remedy it appears

to me to be too extreme a proposition to be accepted. I think that no act of a Court which is likely to do harm to one of the parties should be

allowed to stand, if it is known that the act is wrong. Reference may usefully be made in this connection to the rule enunciated by Lord Cairns in

Rodger v. Comptoir D'Escompte De Paris ILR (1871) PC 475 as follows:

Now their Lordships are of opinion, that one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to

any of the Suitors, and when the expression 'the act of the Court' is used, it does not mean merely the act of the Primary Court, or of any

intermediate Court of Appear, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the

highest Court which finally disposes of the case. It is the duty of the aggregate of those Tribunals, if I may use the expression, to take care that no

act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court.

If this rule is to be applied to the instant case, it clearly becomes necessary to rectify the mistake committed by the trial Court in not complying

with the provisions of Section 21(1) at the appropriate time. And it can be rectified only by setting aside the order complained of and directing the

trial Court to act according to the provisions of Section 21(1) which it previously over-looked and failed to comply with.

This course does not seem to militate against the legislative intention underlying Section 21. The Plaintiff in a preemption suit is required at an

early stage of the litigation to make a deposit of an amount calculated in the manner specified in Section 21(1) or to furnish security of a certain

prescribed value as a safeguard against vexatious and speculative litigation. Sub-sections (3) and (5) of Section 21 underline this object of the

legislature. It will be only consistent with this object to require the Plaintiff to make a deposit or furnish security at a very early stage of the suit. The

legislature therefore enacted in Section 21(1) that the Court must call upon the Plaintiff to deposit money to give security ""at or at any time before

the time of settlement of issues."" This does not seem to my mind necessarily to mean that after the settlement of issues a Court altogether loses its

jurisdiction and authority to require the Plaintiff to deposit the money or furnish security. It cannot be said that the object which the legislature has in

view will cease to be valid after the issues are settled in the preemption suit. This object will be Satisfied only when the Plaintiff makes the deposit

or furnishes the security. The earlier the Plaintiff does so, the better will the object be served. But it cannot follow by any process of reasoning that

if the Plaintiff does not do so early enough, the object of the section can be allowed to be frustrated.

The words ""at or at any time before the time of settlement of issues"" occurring in Section 21(1) should be construed in such a manner as to

promote the object of the legislature and not in a manner as to defeat or retard it. Section 21 does not expressly oust the jurisdiction of the Court

to ask for deposit or security after the framing of issues in the suit. Nor does an ouster of jurisdiction appear to be necessarily implied in the words

at or at any time before the time of settlement of issues."" These words can property be construed as only stressing the need to require the Plaintiff

to deposit money or offer security at the earliest point of time and not as totally depriving the Court of jurisdiction to call for such deposit or

security at a later time. This construction will duly comport with the object which the legislature bad in view. It is also well in this connection to

notice the provisions of Sub-section (5)(b) of Section 21. It empowers the trial Court as and when the security furnished by the Plaintiff becomes

void for any cause or becomes insufficient to direct the furnishing of an altogether fresh security or such additional security as the case may be. If

the entire jurisdiction of the Court to ask for security becomes extinct after the settlement of issues, Sub-section (5)(b) will hardly fit into the

scheme of the section.

Thus, the intention of the section as ' I conceive it as also the scheme of the section appears to permit a Court when moved for that purpose by a

Defendant, to require the Plaintiff in a pre-emption suit to deposit the requisite sum of money or to furnish the necessary security even after the

settlement of issues in the suit. A decision of the Chief Court of the Punjab in Gobind v. Kishan Chand 52 Pun Re 1891 has been relied upon for

the Plaintiff-Respondent. That decision turned upon the construction of the provisions of Section 16-A of the Punjab Laws Act, 1872 and also

Sections 53 and 54 of the CPC of 1882. It does not seem to be necessary to swell at any great length upon this ruling because it is clearly

distinguishable. The Division Bench said that the power of rejecting the plaint contained in Section 16 A of the Punjab Laws Act was

supplementary to the CPC and must be read with the Code. In so doing, they took the view that Sections 54(d) and 53(b) of the old Code

indicated that applaint could not be rejected after the issues were settled. In this view of the matter they held that a Plaintiff in a pre-emption suit

cannot be asked by the Court to make a deposit -after the settlement of issues. Such reasoning does not now avail the Plaintiff in view of the

provisions of O.7 Rule 11 of the CPC which empower a Court to reject a plaint on any of the grounds specified therein at any time. Thus, if resort

is to be had to the provisions of Order 7 Rule 11, the result is likely to be quite different from what was reached by their Lordships in 52 Pun Re

1891. I, therefore, do not think that much assistance can be derived by the Plaintiff Respondent from 52 Pun Re 1891. The contention of the

Plaintiff that the Defendant is not entitled to make an application to the Court as Section 21 does not confer such a right on him does not appear to

be well founded. As I already indicated, the provisions of Section 21 are intended to safeguard a Defendant against frivolous, vexatious or

speculative pre-emption suits. Wherever a statutory provision designed to benefit a party exists, the party intended to be benefited is entitled to

move the Court to enforce that provision to his advantage, although provision does not in terms give the party a right to make an application to the

Court for the purpose, but only enjoins on the Court suo motu to enforce it. Whether the Court acts suo motu or on being moved by the

concerned party will not at all matter. The essential point is the enforcement of the statutory provision by the Court and not how the machinery of

the Court was set in motion.

In view of what I have staled above, I am of the view that the Plaintiff ought to be called upon to deposit in Court such sum of money as is equal

to 1/5th of the probable value of the suit property, or to furnish security to the satisfaction of the trial Court for a sum not exceeding the probable

value of the suit property. The order of the trial Court rejecting the application of the Defendant is set aside and the application is remitted to it for

being proceeded with in the light of the observations contained in this judgment and also according to law.

In the circumstances of this case parties will bear their own costs.