Niraj Jain vs Dhan Vanti alias Dhan Devi and others

S.S. Sodhi, J.

The impugned order of the trial Court dismissing as withdrawn, the suit of the plaintiffpreemptor with liberty to file a fresh suit on the same cause of action is patently erroneous and cannot, therefore, be sustained.

A reference to the material on record would show that February 9, 1989 was the last date for the deposit of 1/5th of the preemption money. No amount was deposited on that day and it is significant to note that no request even was made by the plaintiff for extension of time for its deposit, instead merely on the statement of the plaintiff, the suit was dismissed as withdrawn with liberty to file a fresh suit.

In dealing with this matter, it would be pertinent to note that in terms of the provisions of subsection (4) of Section 22 of the Punjab Preemption Act, 1913, if the plaintiff fails to pay 1/5th of the preemption amount, within the time fixed, the plaint has to be rejected. Next, as regards extension of time, for the deposit of such amount, the law is well settled, as laid down in Lilu v. Gokal Chand and others, 1977 PLJ 386 that is only reasons beyond the control of the plaintiff would justify such extension. Here, as mentioned earlier, there was not even a request for extension of time.

Further, it deserves note that in allowing withdrawal of the suit, with liberty to file a fresh suit, on the same cause of action, the trial Court paid scant regard to the relevant provisions of subrule (3) of Rule 1 of Order 23 of the Code of Civil Procedure, there being no mention of any formal defect or of any other sufficient ground for permitting the plaintiff to do so.

The impugned order of the trial Court is thus wholly untenable and it is accordingly hereby set aside. The plaint is accordingly rejected. This revision petition is thus accepted with costs. Counsel fee Rs. 500/ (One set only).