Bakhtawar Singh vs Yad Vinder Singh

D.K. Mahajan, J.—The order of the learned Sub ordinate Judge 1st Class Rajpura, dated the 22nd of December, 1967 cannot be justified either on principle or on authority.

In a suit for pre-emption, the pre-emptor, who is a minor, was asked to deposit one fifth of the preemption money in cash, before the 4th of December, 1967. The deposit was not made. However, the time was extended till the 11th of December, 1967. Even on that date, the deposit was not made: and again the time was extended upto the 22nd of December, 1967. On that date, a prayer was made that instead of cash deposit, a Security of the sum of Rs. 10,000/- may be permitted to be offered; and accordingly, on that date, the trial Court directed that the said Security be furnished before the 4th of January, 1968. This order has been called in question in the present revision petition u/s 115 of the Code of Civil Procedure.

The contention of the Learned Counsel for the petitioner is that this order is without jurisdiction. u/s 22 of the Punjab Preemption Act, the Court has the discretion cither to order one-fifth of the sale consideration as cash deposit or order security of the like amount to the furnished. It having elected to require one out of the two to be followed, had exhausted its jurisdiction: and, thereafter could not vary that order. The course adopted could only be adopted by way of review. Moreover, the decisions of the Lahore High Court in Bahadur Shah v. Ahmad Shah and Karam Hussain ILR. 5 Lah. 492 = 25 P.L.R. 56, and Raja Khan v. Muhammad Khan ILR 11 Lah. 531 = 31 P.L.R. 327, do not premit such a course. In any case, no reasons have been given for varying the order. Three extensions were taken on behalf of the minor to make the cash deposit and the reason, that security should be permitted because the pre emptor was a minor, is no reason to vary the order for cash deposit. In such circumstances, there being a failure to make the cash deposit within the time allowed, the coarse adopted in Kanail Singh v. Pran Noth 1963 C.L J. 315 should have been adopted. This should now be adopted in case the respondent does not comply with the order of cash deposit on or before the 3rd of October, 1968.

The petition is accordingly, allowed; the order or the trial Court is set aside and the case remitted to it for proceeding further according to law. The parties are directed to appear in the trial Court on the 3rd of October, 1968. There will be no order as to costs.