Mangat Ram and others vs Bhagwan Singh and others

B.S. Yadav, J.—In this second appeal the short question involved are whether the learned trial Court exercised the discretion vested in it u/s 22(4) of the Punjab Pre-emption Act, 1913 (for short ''the Act'') while extending time for deposit Zare Panjem, and whether the learned lower appellate Court was competent to interfere with that discretion.

The brief facts are that the present appellants had filed a suit for possession of the suit land by way of pre-emption. Vide order dated 13th December, 1973, the trial Court asked the plaintiffs to deposit Rs. 3400/-as Zare Panjem on or before 18th January, 1974. The suit was fixed for bearing on 19th January, 1974. Before depositing that amount, the plaintiffs got the treasury challan passed from the Court on 16th January, 1974 and from the treasury officer, on 17th January, 1974. However, the amount was not deposited in the Bank till 19th January, 1974. After depositing the amount, the plaintiffs filed an application through Mrngat Ram, one of the plaintiffs, that on the previous day i. e. 18th January, 1974 the applicant reached the Court late as he was not well and by the time, he reached the bank, the bank had closed and there was rush in the bank and thus Zare Panjem could not be deposited on that day and had been deposited on 19th January, 1974 and the time for deposit of Zare Panjem be exetended upto that date. The learned trial Court upheld the contention of the plaintiff Margat Ram that he had reached late in the bank on 18th January, 1974. The reasons for upholding that plea given by the Court were that the challan was got passed from the Court on 16th January, 1974 and from the Treasury Officer, on 17th January, 1974 and, therefore, it was clear that the plaintiffs had been making efforts to deposit the amount even prior to the date fixed for depositing the amount and thus there was a good cause for extending the time Accordingly it extended time for deposit of Zare Panjem upto 19th January, 1974, on which date that amount had been deposited. On the conclusion of the trial, the learned trial Court decreed the plaintiffs suit for pre-emption on payment of Rs. 18882/- and ordered them to deposit the amount on or before 10th November, 1975.

Feeling aggrieved, the vendee-defendants filed appeal which was heard by the learned Senior Sub-ordinate Judge (with enhanced appellate powers), Bhiwani. Before him only the propriety of the discretion exercised by the learned trial Court in extending the period for deposit of the Zare Panjem was challenged. The learned appellate Court held that the plaintiffs had misled the trial Court in obtaining extension of time by misrepresentation of facts and, thus, the discretion exercised by the trial Court in favour of the plaintiffs deserved to be se aside. Accordingly, he set aside the order of the learned trial Court dated 23rd December, 1974, accepted the appeal, set aside the judgment and decree and rejected the plaint in view of section 22(4) of the Act. The plaintiffs have how come to this Court in second appeal.

Sub-section (1) of Section 22 of the Act lays down that in every suit for pre-emption the Court shall, at or at any time before the settlement of issues, require the plaintiff 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 within such time as the Court may fix in such order. Sub-section (4) further lays down that if the plaintiff fails with in the time fixed by the Court or with in such further time, as the Court may allow, to make the deposit or furnish the security mentioned in sub-section (1) or (2) his plaint shall be rejected or his appeal dismissed, as the case may be. It is not in dispute between the parties that while extending time for deposit of the Zare Panjem, the court has to exercise judicious discretion. The learned counsel for the appellants argued that in the present case, the trial Court had exercised the discretion and, therefore, the learned lower appellate Court ought not to have interfered with the discretion. In support of his contention, he has relied upon Raj Rani v. Madan Mohan (1961) 63 P.L.R. 27 in which it was remarked :

Where the matter is within the discretion of the trial Court the appellate Court would be reluctant to interfere and interference would be warranted only where it is satisfied that the discretion has not been exercised in a judicial manner to promote the ends of the justice but arbitrarily. In the present case, from the facts which have been set out above it ts abundantly clear that the failure of the appellant who was plaintiff in the suits to make the necessary deposit on the 10th of June, 1958, was not due to any negligence or remissness on her part, but occasioned by the absence of the presiding officer of the Court, and even of the Senior Subordinate Judge, on that day. She had done all that lay in her power by making the necessary application and offering to deposit the requisite amount.

There is no dispute with the above proposition, but every case has to be decided on its own facts. However, it is clear that if it is found that the trial Court has not exercised the discreation judiciously and, on the other band, had exercised it arbitrarily, then the appellate Court can interfere with the discretion.

The next question which arises in the present case is, whether the trial Court had exercised the discretion judiciously. The learned trial Court accepted bald allegations contained'' in the application filed by Mangat Ram that on 18th January, 1974, he had come late to the Court and by the time he reached the bank, it had closed. The application was not even supported by an affidavit. Merely because challan had been got prepared on 16th January, 1974, and was got passed from the treasury officer on 17th January, 1974, the learned trial Court appears to have come to the conclusion that the plaintiffs had been making efforts to deposit the amount even prior to the date fixed for the deposit of the amount of Zare Panjem. The learned trial Court overlooked the point that in the challan the name of the depositor has been given as Mangat Ram son of Ruli Ram through Sh. Nathu Ram Sharma, Advocate. The form purports to have been signed by Nathu Ram Sharma, Advocate. There was no evidence on the file to show that any of the plaintiffs had come to the Court on 16th January, 1974, or had visited the bank on 17th January, 1974. If any of the plaintiffs had visited the bank on 17th January, 1974, then it is not understood why the amount was not deposited on that date. Therefore, the learned trial Court was not justified in holding that the plaintiffs were making efforts to deposit the amount of the Zare Panjem even prior to the date fixed by the Court for the deposit of that amount.

After discussing the whole evidence, the learned lower appllate Court has come to the conclusion that upto late in the evening of 18th January, 1974, the plaintiffs had not had even sufficient amount with them for depositing as Zare Panjem in the Bank. I need not repeat those discussions. Suffice it to say that Mangat Ram has admitted that he did not deposit Zare Panjem and that it was deposited by his brother. He has also stated that the amount bad been given to his brother for deposit in the treasury on the date it was deposited. These circumstances clearly show that before 19th January, 1974, the amount had not been handed over to anybody for deposit in the bank Mangat Ram had nothing to do with that deposit and, therefore, it is not understandable how in the application filed by him for extension of time he had alleged that on 18th January, 1974, he had some to the Court late and by the time he reached the bank it has closed. Thus, it is clear that false facts had been alleged by Mangat Ram in the application.

Even if it is held that on 18th January, 1974, the bank had closed by the time Mangat Ram reached there, the plaintiffs have to thank themselves for coming late to the Court. If Mangat Ram had fallen ill, the other major plaintiff, Dhan Singh (the third plaintiff being minor) could have come in time on 18th January, 1974, for depositing the amount in the bank. Thus, the plaintiff were negligent in depositing the amount Zare Panjem and, therefore, were not entitled to the discretion being exercised in theire favour. u/s 22(4) of the Act, the discretion of extending the time for depositing Zare Panjem has to be exersised only for good and sufficient reasons. If there are good reasons, the discretion cannot be exercised in favour of the defaulter. I may quote Karnail Singh and others v. Pran Nath 1963 Curr. L.J. (Lb.), in which case it was remarked :--

The exercise of discretion is always subject to recognised principles and as observed by Viscount Simon L. C. in Blunt v. Blant, 1943 A. C, 517, its exercise can be impeached in appeal when the Court''s discretion has been exercised on wrong or inadequate materials. The present suit for pre-emption was filed by the respondent two days before the limitation was due to expire and a suit or in cases where the right of pre-emption is claimed has to exercise a greater degree of caution and care when the requirement of the statute for the making the deposit is mandatory. When the proceedings had been adjourned, the plaintiff or his counsel should have at least tried to ascertain whether any order of deposit had been made and the continuing default of about six months cannot be explained away as lightly as has been done in the affidavits of the counsel. In a case of the Lahore High Court, Abdul Raoof J. in Inayat v. Darbara Singh 1920 (55) I.C. 62, interfered in second appeal to set aside the order of the District Judge who reversed the order of the trial Judge rejecting the plaint for the failure to make the requisite deposit u/s 22. It was held that the appellate Court should not have gone out of its way to exercise the discretion of extending time in favour of the plaintiffs. Abdul Raoof J. interfered because in his opinion the exercise of the right is opposed to public interest and the courts do not enforce it beyond the limit of the necessities which have been judicially decided.

It was held in AIR 1949 121 (Lahore)

The civil law leans always in favour of freedom of contract, and security of title. The statutory law of pre-emption constitutes a drawback on both these principles, and its provisions must therefore be construed and applied strictly against the claims of pre-emptors. The discretionary power given to trial Court by S. 149 Civil P. C., as it fell to be exercised in the circumstances of the present case, was in effect a power to extend limitation.

It was further remarked in that case :

Consequently, it must be held that specially where the suit is one for pre-emption, the discretion conferred by S. 149, Civil P. C., needs to be exercised with the greatest care, where extension of limitation is also involved. It is not possible to lay down the limits within which it may be exercised in favour of the litigant; each case will need to be considered in the light of its own special circumstances. But it is probable that few cases will be found to satisfy the condition for such exercise, in which the delay is not due exclusively to circumstances wholly beyond the litigant''s control. Thus, any acts, mistaken or otherwise, of the litigant, or matters affecting his condition, e. g. property or physical inability, can hardly be adduced as "sufficient cause", when account is taken, on the other hand, that by lapse of time the vendee''s title in the property has become secure from attack by a pre-emptor. In this case, it plainly appears that the inability of the pre-emptor to furnish the full court-fee on either of the dates on which indulgence was shown to him by the Court, was entirely due to his own default for which no excuse that is even tolerable was put forward, and in the circumstances, the default can only be regarded as contumacious.

Thus, the plaintiffs who were negligent in the deposit of the Zare Panjem were not entitled to any indulgence particularly when the facts alleged in the application had not been proved to be correct.

The learned counsel for the vendees also argued that the power given to a Court for extending time u/s 22(4) of the Act for deposit of pre-emption amount can be exercised only before the time fixed has expired, and that in the present case the Court extended time after the period originally fixed had expired. In support of his contention, he has relied upon the following passage of the judgment rendered in Civil Revision No. 560 of 1967 Bahal Singh v. Jahangir and another C. R. 560 of 1967 decided on 5th January, 1968 :--

The Sub-ordinate Judge has already exercised discretion and if he had adjourned the matter to the next day, i. e- 17th May, 1967, the time within which the deposit had to be made would have expired and the Sub-ordinate Judge would have no jurisdiction to extend it further.

I am of the opinion that these observations are obiter dicta. Time can be extended by the Court even after the time originally fixed or the extended time has expired. In this respect, reference may be made to a Division Bench judgment reported as Narsingh Das v. Hakim Ghulam Nabi 1909 P.L.R. 144, wherein it was remarked :

But, speaking generally, we have no hesitation in holding that there is nothing in clause (3) of Section 19 of the Punjab Pre-emption Act to debar a Court from extending the period originally fixed by it and this too in a case where the period so fixed has expired prior to the making of the subsequent order. That this has been the view of the Legislature itself as regards the provisions of the CPC is we think apparent from Section 148 of the CPC of 1908.

The learned counsel for the appellants has also relied upon Umrao Singh and others v. Dharma 1972 Rev. L.R. 302, Harjang Singh and another v. Pritam Singh 1970 P.L.J. 810 and Raj Rani case (supra), where the application for extending time for deposit of Zare Panjem was filed by the plaintiff after the expiry of the period fixed by the Court. Therefore, this argument of the learned counsel for the vendees- respondents that the time cannot be extended after the time the expiry of the time fixed for the deposit of Zare Ponjem has no force.

For the foregoing reasons, it is held that the plaintiffs had tried to over-reach the Court by stating wrong facts in the application filed for extension of the time for deposit of Zare Panjem. The learned lower appellate Court was, therefore, right in holding that the learned trial Court had not exercised the discretion judiciously. I do not find any force in the present appeal and dismiss the same with costs.