Des Raj and Another vs Piyaru Ram and Another

C.R. Thakur, J.—Shri Piyaru Ram had filed a suit for possession/by way of pre-emption of land measuring 10 kanals 13 marlas comprised in khasra No. 11 situate in Tika and Mauza Dada, Tehsil Dehra. The Plaintiff claimed the right of pre-emption on the basis of his being a co-sharer with the vendor. His further contention was that sale price which had been shown at Rs. 10,000 was fictitious and that the actual consideration that passed did not exceed Rs. 5,000/-.

The trial court found that the Plaintiff was a co-sharer and had a sight of pre-emption, but found that the consideration which actually passed was Rs. 10,000/-, and, therefore, the trial court passed a decree for possession in favour of the Plaintiff on payment of Rs. 10,000/- as pre-emption money. The Plaintiff had already deposited Rs. 2,000/- and he was directed to deposit the balance amount of Rs. 5,000/- in the court by the lst August, 1976, failing which it was ordered that the suit shall stand dismissed. This decree was passed on 12th July, 1976 by the Sub-Judge 1st Class, Dharamsala.

Against this judgment and decree, both the parties went in appeal. The Defendant-vendees appealed on the, ground that the Plaintiff had no right of pre-emption, and that the trial court had erred in holding that the Plaintiff had such a right. The Plaintiff appealed against the judgment on the ground that the amount of sale held by the trial court actually paid at Rs. 10,000/- was wrong, in fact, the sale amount was fictitious and only Rs. 5,000/- had been paid.

However, the vendees withdrew the appeal on 4th October, 1977, but raised an objection, Which is found in the order-sheet of the record of the court of District Judge that the Plaintiff had not deposited the money within the stipulated time and so the suit shall be deemed to have been dismissed.

The learned District Judge dismissed the appeal of the Plaintiff on 3-4-1978, and he allowed the Plaintiff to deposit Rs. 10,000/- less l/5th already deposited on or before 30-5-1978, failing which the suit was deemed to have been dismissed.

The Defendant-vendees have filed this present appeal against the judgment and decree of the lower appellate court whereby the learned District Judge has allowed time to the Plaintiff to deposit the balance amount of pre-emption money because according to the Appellants, the suit should have been deemed to have been dismissed when the Plaintiff failed to deposit the amount in the e6urt by 31st August, 1976, which was the time granted by the trial court. The District Judge, according to the learned Counsel, could not allow or extend time for depositing the pre-emption money.

Therefore, the only short point that requires consideration by this Court is whether the District Judge could extend the time for deposit of the balance amount of pre-emption.

I have heard the counsel for the parties, and both have relied on a number of rulings in support of their respective contentions.

Shri S.S. Ahuja, who appeared for the Appellants, has contended that it was not within the competence of the District Judge in appeal to extend the time for payment of the decretal amount. The suit already stood dismissed for failure of the Plaintiff to deposit the money by 31st August, 1976, as ordered, by the trial court.

Shri Ahuja has firstly invited my attention to a case, Sulleh Singh and Others Vs. Sohan Lal and Another, In this case the suit of the Plaintiff-pre-emptor was dismissed on the ground that one suit on behalf of the four Plaintiffs, who were tenants of different parts of the land was pot maintainable. On appeal, the suit was remanded for re-trial. At the trial after remand the two Plaintiffs withdrew from the suit. The trial court decreed the suit and directed the two Plaintiffs, Sohan Lal and Nathi to deposit Rs. 6,300/- and Rs. 5,670/- respectively on or before 1st April, 1969. The trial court gave Sohan Lal a decree for possession by pre-emption in respect of Killas Nos. 14/1, 17 and 18/1, The Plaintiffs aggrieved by the order filed an appeal alleging that the Respondent Sohan Lal was a tenant of Killa No. 24 and the remaining decree should have been passed in their favour for whole of the land and the decree should have been passed in favour of Sohan Lal in respect of Killa No. 24 of Rectangle 37. The Additional District Judge on 29th July; 1969, passed a decree for pre-emption in favour of Sohan Lal on payment. of Rs. 9,100/- and he was directed to deposit this amount in Court on or before 20th August, 1969. The Additional District Judge passed a decree for possession by pre-emption in favour of Sohan Lal of Killa No. 24 of Rectangle 37. The decree in favour of Nathi was maintained without change. Thereafter Sulleh Singh and others preferred an appeal in the High Court alleging that that the decision that Plaintiff Sohan Lal was also a tenant of Killa No. 24 was incorrect and should be set aside and the decree of the trial court should be restored. They also prayed that the decrees in favour of the two Plaintiffs Sohan Lal and Nathi were liable to be set aside on the ground that they did not deposit the decretal amount by lst April, 1969, as directed by the trial court and, therefore, the suit was liable to be dismissed under the provisions of Order 20,-Rule 14 of the Code of Civil Procedure.

The High Court accepted the appeal of the Appellants against the Plaintiff Nathi and: dismissed the appeal against the Plaintiff Sohan Lal. The High Court said that since the lower appellate court granted Sohan Lal decree for one more Killa and directed that the amount would be Rs. 9,100/-, Sohan Lal was to comply with the appellate decree and not the decree of the trial court.

On appeal before the Supreme Court it was contended that neither Sohan Lal nor Nathi deposited the amount in accordance with the decree of the trial court on or before 1st April, 1969, and the suit should have been dismissed on that ground atone and the appeal should have been allowed. Further that the lower appellate court had no power and jurisdiction to give further time to Sohan Lal to deposit the pre-emption amount by an extended date. The Supreme Court, therefore, held:

"that the lower appellate Court should have dismissed the suit. The lower appellate Court was wrong in extending the time for payment because the failure of the Plaintiffs-Respondents to deposit the amount in terms of the trial Court''s decree w6uld result in pre-emptors suit standing dismissed by reason of their default in not depositing the pre-emption price. The High Court was wrong in not setting aside the order of extension of time passed by the lower appellate Court. It was only if the Plaintiffs-Respondents had paid the decretal amount within the time granted by the trial Court or if the Plaintiffs-Respondents had obtained another order from the lower appellate Court granting an order of stay that the lower appellate Court might have considered the passing of appropriate order in favour of pre-emptors.

From the facts of this case it would be quite evident that there was no stay order granted by the lower appellate court to the Plaintiffs in that case and, therefore, it was on that basis, that their. Lordships of the Supreme Court held that the suit stood dismissed for not depositing the amount within the time allowed by the court. Their Lordships have observed:

"It was only if the Plaintiffs-Respondents had paid the decretal amount within the time granted by the trial court of if the Plaintiffs-Respondents had obtained another order from the lower appellate Court granting any order of stay that the lower appellate Court might have considered the passing of appropriate order in favour of pre-emptors.

So, it would appear that if an order of stay had been obtained then the time could be granted or extended by the lower appellate court.

The next authority to which reference has been made is Naguba Appa Vs. Namdev, This authority has been referred to in Sulleh Singh and others'' case (supra). In this case the pre-emption money was not deposited within the time fixed and the Plaintiff had gone in appeal which was subsequently withdrawn. Thereafter the Plaintiff made an application to the court for making the deposit without disclosing that the time fixed by the decree had elapsed. The application was allowed. The Defendant when apprised of the situation, made an application to the court to the effect that the Plaintiff''s suit stood dismissed owing to his failure in making the deposit in time and that he was not entitled to execute the decree. The trial Judge held that the pre-emption money not having been paid within the time fixed in the decree the suit stood dismissed. On appeal this decision was set aside, but on a second appeal it was restored and it was held that the suit stood dismissed under Order 20, Rule 14, Code of Civil Procedure. Against that an appeal was preferred to the Judicial Committee of the State and thereafter it was transferred to the Supreme Court. The judgment dismissing the suit itself by the trial court was upheld. From the facts of this Case it would be apparent that there was no stay granted in appeal which was withdrawn by the Appellant.

The further authority is Dattaraya Tawalay Vs. Shaikh Mahboob Shaikh Ali and Another, This authority; in my opinion, does not in any way help the Appellants. This case lays down, "that a decree in terms of Order 20, Rule 14, imposes obligations on both sides and they are so conditioned that performance by one is conditional on the performance by the other. To put it differently, the obligations are reciprocal and are inter-linked, so that they cannot be separated. If the Defendants by obtaining the stay order from the High Court relieve themselves of the obligation to deliver possession of the properties the, Plaintiff decree-holder must also be deemed thereby to be relieved of the necessity of depositing the money so long as the stay order continues. "Further it has been held, "that the effect of the order of the High Court dismissing the appeal is to give by necessary implication a fresh starting point for depositing the amount from the date of the High Courts decree". Therefore, it is quite evident from the facts of this authority that if there is a stay order granted by the appellate court then ft will have the effect of enlarging die time for payment till the decision of the appeal and on the decision there would be a fresh starting point for depositing the amount from the date of the lower appellate-court''s decree This authority was relied upon by the Respondent''s counsel also of support of his contentions. He has particularly invited my attention to para 3 of the judgment and the ratio laid down has already been quoted above. In my opinion, this authority does not advance the case of the Appellants any further.

The next authority is Mir Mohammad Vs. Nain Singh and Others, This authority has got no application in view of the ratio laid down in Dattaraya''s case (supra).

It is not necessary to refer to the cases cited by the Respondents because the learned Counsel for the Respondents places reliance on Dattarqya''s case (supra) the ratio whereof is already noticed above.

Now we have to deal with the facts of the present case. The trial court had passed a decree on 12th July, 1976 and the time for deposit of the balance amount of Rs. 8,000/.- was given upto 31st August, 1976. The Plaintiff filed his appeal on 11th August, 1976, i.e. about 20 days before the expiry of the time granted to the Plaintiff to make deposit of the pre-emption money. But, before that on 16th August, 1976, the Plaintiff filed an application before the District Judge, i.e. the first appellate court wherein it was prayed that time for depositing the preemption money as prescribed by the lower court, i.e. till 30th August 1976 be extended till the time this Court comes to the conclusion as to how much amount should be deposited as the sale consideration. The learned District Judge before whom the appeal was presented, however, did not pass any orders on that application and later on the appeal was transferred to the Additional District Judge for disposal. But, one fact is clear that the Plaintiff had appealed against the amount which he was directed to deposit as pre-emption money. According to him, the amount actually paid was Rs. 5,000/- whereas the trial court had held that it was Rs. 10,000/-. The Defendant-vendees also filed an appeal that the Plaintiff-pre-emption had no right of pre-emption. Along with their appeal they also filed an application for stay of the execution proceedings in the trial court, as a result of which the District Judge on 12th August, 1976, stayed the execution of the decree, of the trial court till the decision of the appeal, and it was, however, after that that the appeal was transferred to the Additional District Judge for disposal. The appeal was withdrawn by the Defendants on 4th. October, 1977, and it was dismissed as being withdrawn. But, the fact remains that the stay was granted by the first appellate court on the application of the vendees, who had also filed an appeal, and the operation of the decree whereby the possession was ordered to be delivered was stayed, and, therefore, by implication it would mean that in so far as the payment of the amount within that period was concerned that was also stayed. There is no doubt that no specific order was passed on the application of the Plaintiff-Appellant for stay of the execution but an order had been passed on 12th August 1976 on the application of the vendees and that automatically extended the time. This appeal, as already stated, was withdrawn on 4th. October, 1977, so the operation of the decree till then had been stayed and, therefore, in my opinion, there was no obligation on the Plaintiff also to deposit the amount when the vendees themselves wanted to stay the operation of the decree. The time which was granted by the trial court for depositing the amount had expired when this appeal was withdrawn by the vendees. Therefore, in these circumstances it cannot be said that the suit should have been dismissed for failure of the Plaintiff to deposit the amount. The authority Dattaraya v. Shaikh Mahboob Shaikh Ali (supra) is quite clear on the point and it. is fully applicable to the facts of the present case and, therefore, in my opinion, it is not necessary to dilate any further and that being the case there does not appear to be any force in the arguments advanced by the Appellants'' that the suit-stood dismissed for failure of the Plaintiff to deposit the amount within the stipulated period and that the first appellate court had no jurisdiction to extend the time.

The result, therefore, is that the appeal fails and is dismissed with costs.