Mohd. Malik and Others vs Rehman Baba and Others

J.N. Wazir, C.J.—This is Defendants-vendees' appeal and arises out of a suit instituted by Plaintiffs to pre-empt the sale of land, measuring

20 kanals 5 marlas situate in village Pandh Chhuk made by Kanth Koul vendor in favour of Mohd. Malik and others for a sum of Rs. 2,923/ -.

The Plaintiffs Rehman Baba and others, four in number, alleged that they, being the proprietors in the same Mahal had prior right of purchase as

against the vendees who had associated strangers with them in purchasing the land in dispute. It was further alleged that the price mentioned in the

sale deed was fictitious and exaggerated in order to stave off the pre-emptors.

In fact the market value of the land could not exceed Rs. 1000/ -. The vendees Defendants resisted the suit on the ground that the Plaintiffs' right to

purchase the land was in no way superior to others; that the Plaintiffs had waived their right to purchase the land and that the price was not

fictitious but the amount actually paid to the vendors was entered in the sale deed. Lastly it was pleaded that the suit was barred by limitation.

On the pleadings of the parties the trial Court raised several issues and after considering the evidence it came to the conclusion that the

Defendants vendees had associated a stranger with them who was not a proprietor in the Mahal, and therefore the Plaintiffs who were all owners

in the Mahal had preferential right to purchase the land.

As regards the price, the trial court found that the price entered in the sale deed was actually paid by the vendees Defendants to the vendors. It

was further found by the trial court that the waiver alleged by the Defendants was not established. The Suit was held to be within time and it was

decreed in favour of the Plaintiffs on payment of the sale price to the Defendants.

The Defendants have appealed and the learned Counsel appearing on their behalf has not challenged the finding of the trial Court in regard to

their associating a total stranger along with them in purchasing the land in dispute. He has conceded that the right of the Plaintiffs pre-emptors was

superior to that of the Defendants as they were all owners in the same Mahal. His contention is two-fold, namely that the Plaintiffs had waived their

right to purchase the land and that the suit of the Plaintiffs was barred by time.

I will first deal with the point of waiver, It is contended on behalf of the Appellants that before the land was purchased the Plaintiffs were asked

whether they would buy the land' or not and they all refused to do so as they were not in a position to pay the price demanded by the vendors. The

Defendants have produced four witnesses Qadir Mir, Amir Batt, Sona Batt and Ama Dar to show that the Plaintiffs were approached by them to

buy the land and they refused to do so.

We have carefully gone through the evidence of these witnesses and in our view their testimony is not worthy of credence. It is not explained as

to why these witnesses were specifically sent to the Plaintiffs alone to enquire from them whether they would like to buy the land or not. There are

a number of persons who are entered as proprietors in the same Mahal and it appears highly improbable and unreasonable that the Plaintiffs alone

should have been selected among others from whom enquiry had been made through the witnesses whether or not they would like to buy the land.

Moreover, these witnesses contradict one another in their statements. Some of them stated that they went to the house of the Plaintiffs and

enquired from them whether they would like to purchase the land. Others say that enquiry was made from the Plaintiff not at their house but on the

road-side. None of these witnesses states whether he gave out the particulars of the land proposed to be sold and the price which was offered for

it. In these circumstances the trial Court has rightly discarded their evidence.

The next question for consideration is whether or not the suit is barred by time. The counsel for the Appellant has argued that the Plaintiffs

valued the plaint at fifty times the land revenue for the purpose of jurisdiction and at eight times the land revenue for the purpose of Court-fees, and

instituted the suit in the Court of Munsiff; and that the suit was resisted by the Defendants on the ground that the suit was under-valued for the

purposes of jurisdiction and court-fee.

It was urged that notwithstanding the objection raised by the Defendants, the Plaintiffs prosecuted the suit in the court of the Munsiff till the Munsiff

decided that he had no jurisdiction to try the suit and returned the plaint to the Plaintiffs for presentation to the proper forum. It was contended that

the Plaintiffs deliberately filed the suit in a wrong forum and therefore, they were not entitled to the benefit u/s 14 of the Limitation Act.

In support of this view reliance is placed on Thadi Chandrayya and Others Vs. Vaitla Seethanna and Another, in which it has been held that the

Court which had no jurisdiction could not pass orders in the suit beyond directing the plaint to be presented to the proper Court and that the suit

must be deemed to have been instituted on the date of re-presentation of the amended plaint which the Court had jurisdiction to accept and was

therefore barred. Having deliberately under-valued his relief in the first instance the Plaintiff could not claim the benefit of Section 14. The same

view has been taken in Bibi Sairah v. Mt. Golab Kuar AIR 1919 Pat 345 and in Sheo Dhari Ram Vs. Gupteswar Pathak and Another, .

We have gone through these rulings. These cases are distinguishable and have no application to the present case. In these cases it was found

that there was no bona fide mistake, but on the other hand the Plaintiffs deliberately prosecuted the suit in a wrong forum and, therefore, they were

not entitled to the benefit u/s 14. In the present case the position is quite different.

The Plaintiffs under bona fide mistake attempted to pay less court-fee by filing the suit for possession of agricultural land in Munsiff's Court and

computed the value for the purposes of jurisdiction and court-fees on the basis of land revenue.

They may have done so under a mistaken advice of their counsel but the mistake committed by them or by their counsel was a bona fide mistake

and cannot be taken to be a deliberate mistake on their part. In these circumstances benefit u/s 14 of the Limitation Act ought to be extended to

the Plaintiffs. In this view I am fortified by a ruling of the Lahore High Court reported as Ghulam Mohammad v. Usman AIR 1933 Lah 541 in

which it has been held that an Appellant presenting an appeal to a wrong Court on the mistaken advice given bona fide by his pleader, is entitled to

exclude the period during which the appeal remains pending in the wrong Court.

The Appellant should not be penalized for having acted on the mistaken advice given bona fide by this pleader. The same view is taken in

Mahendra Nath Bagchi Vs. Tarak Chandra Sinha and Others, where it is laid down that where Plaintiffs act throughout bona fide and do not

intentionally undervalue their suit they are entitled to a deduction of time spent in arriving at a correct valuation of their suit.

There are other circumstances to show that the Plaintiffs have been prosecuting the suit with care and due diligence. They filed the suit for

preemption one month after the date of the sale and if the Munsiff had decided the issue in regard to jurisdiction without undue delay, the Plaintiffs

would have been well within time in representing the plaint to the proper forum but there has been considerable delay on the part of the Court in

deciding the first issue and for that the Plaintiffs ought not to be penalized. '.

As soon as the Munsiff decided the preliminary issue and held that he had no jurisdiction to entertain the suit, the plaint was presented by the

Plaintiffs to the proper forum on the following working day which shows that the Plaintiffs prosecuted the suit with full care and attention and the

trial Court has therefore rightly allowed them benefit u/s 14 of the Limitation Act.

In the result this appeal fails and is dismissed, but taking all the circumstances of the case into consideration we leave the parties to bear their

own costs in this Court.

K.V. Gopalakrishnan Nair, J.

I agree and have nothing to add.