L. Nathu Mal vs L. Joti Parshad and others

Harnam Singh, J.—On 4th January 1946, Lala Nathu Mal instituted a suit for possession by pre-emption of agricultural land measuring 249 bighas and 3 biswas, one-half share of 10 shops, 2 pacca houses and 8 nauhras situate in Najabhgarh, Delhi Province. Admitting the plaint under R. 9 of O. 7, Civil P. C., the trial Court passed the following order on 14th January 1946 :

Present:

Mr. Ambey Dayal Mathur, counsel for the plaintiff. I have seen these objections filed by the plaintiff to the office note about insufficiency of court-fee. The question is not simple and is reserved for decision after framing a preliminary issue. The plaint may be registered for the present and summons may issue to the defendant for 12th February 1946. Scrutiny on 28th January 1946.

It appears that on 15th January 1946 the trial Court passed an order which reads :

None of the parties is present. The plaint be registered. Summonses for settlement of issues be issued to the defendants for 12th February 1946 on receipt of process-fee. Kham Pashi 28th January 1916. Zare Panjam (one-fifth of the sale money) be deposited by the Kham date.

On 28th January 1946, Lala Nathu Mal plaintiff made an application in the trial Court which runs:

In this case an order for depositing Rs. 6000 i. e., Zare Panjam (one-fifth of the sale money) has been passed. I, therefore, pray that Rs. 6000 may be got deposited.

Upon the application of the plaintiff set out in the preceding paragraph the trial Court ordered "deposit."

Lala Nathu Mal plaintiff then obtained an order of the Court on 31st January 1946 directing the money to be paid in the Treasury and the amount of Rs. 6000 was actually deposited in the treasury on 1st February 1946.

Now, on 12th February 1946 Rai Saheb Joti Parshad defendant made an application in the trial Court under S. 22 (4), Punjab Pre-emption Act, 1913, alleging that the plaintiff had failed to comply with the order of the trial Court requiring the plaintiff to deposit one fifth of the sale money by 28th January 1946 and that being so the plaint was liable to rejection under S. 22 (4), Punjab Pre-emption Act.

In reply to the application made by the defendant under S. 22 (4), Punjab Pre-emption Act, Lala Nathu Mal plaintiff maintained in a written application supported by an affidavit of Babu Ambey Dayal Mathur, advocate, that the order passed by the trial Court on 15th January 1946 was not communicated to him or his counsel and that being so the time for depositing one-fifth of the sale money may be extended up to the first date of hearing or in the alternative up to 1st February 1946. Upon these facts the trial Court framed the following issues : (1) Whether there is sufficient ground for extending the time for deposit of one-fifth of purchase money in this case ? (2) If not, is not the plaint liable to rejection ? Finding against the plaintiff on the issues set out above, the trial Court rejected the plaint on 28th April 1946, leaving the parties to bear their own costs.

From the order passed by the trial Court rejecting the plaint on 28th April 1946 the plaintiff has come up in appeal in this Court under S. 39, Punjab Courts Act, 1918.

In rejecting the plaint the trial Court said :

The only evidence produced by the plaintiff is the affidavit of his pleader Mr. Mathur in which he says that neither he nor plaintiff came to know of the order dated 15th January 1946 and they have been under the impression that the deposit was to be made by the date of pucca hearing. No affidavit of the clerk of the pleader has been filed. As pointed out by counsel for defendant the last mentioned statement is against the facts. The practice of this Court is that the deposit is ordered to be made by the date fixed for scrutiny and. sometimes even earlier.

Mr. Bishen Narain, learned counsel for the appellant, contended that the rejection of the plaint for failure to deposit one fifth of the sale money by 28th January 1946 was not justified and that under the circumstances of the case the trial Court ought to have acted under sub-s. (4) of S. 22, Punjab Pre-emption Act, relating to the extension of time for the deposit of one-fifth of the probable value of the property sought to be pre-empted. Sub-section (4) of S. 22 is in the following terms:

If the plaintiff fails within the time fixed by the Court or within such further time as the Court may allow to make the deposit or furnish the security mentioned in sub-s. (1) or (2), his plaint shall be rejected or his appeal dismissed as the case may be.

Now, the order rejecting the plaint is attacked on the ground that the Court acted with material irregularity in refusing to extend time and failed to exercise the right discretion, in as much as irrelevant circumstances have been relied upon, and the circumstances of the case have not been taken into consideration. The argument raised is that in refusing to extend time, the trial Court has failed to take into consideration the following facts, viz., (1) that the order requiring the plaintiff to deposit one-fifth of the sale money was passed in the absence of the plaintiff or his counsel and that the order was not communicated to the plaintiff or his counsel, (2) that the plaintiff applied for an order of deposit on 28th January 1946, and that the deposit was made by the plaintiff before the defendant appeared in Court in pursuance of the summons issued to him and before the issues were settled, (8) that the order passed by the trial Court was defective, inasmuch as S. 22 provides that the plaintiff may be required to deposit in Court such sum as does not in the opinion of the Court exceed one-fifth of the probable value of the land or property and (4) that the order requiring the plaintiff to deposit Rs. 6000 by Kham Peshi was not a definite order.

Mr. Faqir Chand Mital, learned counsel for the respondent, raises the preliminary objection that the discretion allowed to the Court in relation to extension of time is absolute and unqualified and that being so it is not open to a Court of appeal to interfere with that discretion.

Now in Evans v. Bartlam, 1937 A.C. 473: (166 L. J. K. B. 563), Lord Atkin said:

Appellate jurisdiction is always statutory; there is in the statute no restriction upon the jurisdiction of the Court of appeal; and while the appellate Court in the exercise of its appellate power is no doubt entirely justified in saying that normally it will not interfere with the exercise of the judge''s discretion except on grounds of law, yet if it sees that on other grounds the decision will result in injustice being done it has both the power and the duty to remedy it.

In a more recent case, Blunt v. Blunt, 1943 A. C. 517 : (112 L. J. P. 58), Viscount Simon L. C. has stated the circumstances in which appeals may successfully be brought against the exercise of discretion by a Court in the following words:

If it can be shown that the Court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant there would, in my opinion, be ground for an appeal, In such a case the exercise of discretion might be impeached, because the Court''s discretion will have been exercised on wrong or inadequate materials.

The principles underlying the decisions in Evans v. Bartlam, 1937 A. C. 473: (106 L. J. K. B. 568) and Blunt v. Blunt, 1943 A. C. 517: (112 L. J. P. 58) may with advantage be applied in the present case. As stated above the order under appeal was passed in the absence of the plaintiff or his counsel and the order was not communicated to the plaintiff or his counsel. The trial Court, however, relying upon the practice of the Court that the deposit is ordered to be made by the date fixed for scrutiny and sometimes even earlier has rejected the plaint. There is no evidence of any such practice followed by Courts in this part of the country. Further-more the practice relied upon by the trial Court, if it exists, may result in corruption. An order may be passed in the absence of the plaintiff or his counsel which the plaintiff or his counsel does not come to know resulting in the rejection of the plaint. The trial Court has further taken into consideration the fact that the plaintiff''s pleader received from his client a cheque for the amount several days before 28th January 1946 showing that the lawyer came to know of the order dated 15th January 1946. There is nothing on the record to support this part of the case. It was not open to the trial Court to take into consideration documents which had not been proved and exhibited under the rules of procedure.

For the reasons given above, I am of the opinion that the trial Court was not justified in rejecting the plaint on 28th April 1946.

In the result I allow the appeal, set aside the judgment and decree of the trial Court and restore the plaint, leaving the parties to bear their own costs throughout. The case shall be remanded to the trial Court for decision in accordance with law. The court-fee levied on the memorandum of appeal in this case shall be refunded.

Kapur, J.

I am of the same opinion.