Ram Partap vs Tulsa

Ashok Bhan, J.

This is defendant''s revision petition impugning the order of the trial Court whereby plaintiffrespondent has been permitted to file second suit for preemption on the same cause of action. The facts which gave rise to the revision petition are as under :

Plaintiffrespondent (hereinafter referred to as the preemptor) filed a suit in January, 1989 for preempting the the deed No. 1534 dated 1.9.1988 made by Gobind Ram vendor, measuring 56 Kanals 4 Marlas in favour of Ram Partap defendant, the petitioner (hereinafter referred to as defendant vendee). As the plaintiff preemptor failed to deposit Zarepanjam i.e. 1/5 of the total sale price, the plaint was rejected under section 22 of the Punjab Preemption Act, 1913 (hereinafter referred to as The Act). On 15th September, 1989, plaintiffpreemptor filed second suit for preempting the sale deed. Defendantvendee took an objection that the earlier suit filed by the preemptor had been dismissed as he had failed to deposit Zarepanjam and his plaint was rejected under Section 22(4) of the Act and that second suit on the same cause of action after deposit of Zarepanjam was not maintainable. Defendantvendee has come up in revision.

In my view trial Court committed an error in exercise of its jurisdiction in permitting the plaintiffpreemptor to file a second suit on the same cause of action. In the earlier suit filed by the plaintiff preemptor, the plaint was ordered to be rejected as he had failed to pay 1/5th of the preemption money within the time fixed. The plaint was rejected in terms of provisions of Section 22(4) of the Act. Trial Court proceeded with the matter as if the plaint had been ordered to be rejected under Order 7 rule 11 of the Code of Civil Procedure (hereinafter referred to as the Code) and that the plaintiffpreemptor was within his right to file second suit on the same cause of action, under Order 7 rule 13 of the Code. It has been repeatedly held by the Supreme Court that right of preemption is a piratical right and in my view, a preemptor cannot be given repeated chances to preempt the sale. Section 22(4) of the Act enjoins upon the Court to reject the plaint if the preemptor fails to deposit 1/5th of the preemption money. Preemptor has to step into the shoes of the vendee and this right was based on the plea that a preemptor has, a prior right of sale in his favour as compared to the vendee. Legislature further provided that willingness to purchase the property by the preemptor had to be backed with the capacity to buy the property and that is why it was provided that a preemptor should deposit 1/5th of the preemption money at the time of filing of the suit failing which his plaint was liable to be rejected. In the present case, plaintiff failed to deposit 1/5th of the preemption money and his plaint was ordered to be rejected. Under the Preemption Act, no second right, as has been given under Order 7 rule 11 of the Code for filing a second suit on the same cause of action in case the plaint has been rejected, has been provided. There is no parallel case on the point but I draw my support from various other decisions of this Court wherein it has been repeatedly held that extension of time for the deposit of 1/5th of the preemption money can only be granted for the reasons which are beyond the control of the preemptor. Reference in this regard may be made to Lilu v. Gokal Chand, 1977 PLJ 386, Ram Saran Dass v. Gurmukh Ram, ILR (1971) 1 Punjab and Haryana 177 and Niraj Jam v. Dhan Vanti alias Dhan Devi and others, 1991 PLJ 139 : 1991(2) RRR 297. In the case of Niraj Jain (supra) this Court set aside the order of the trial Court whereby the trial Court had permitted the preemptor to withdraw his suit with liberty to file a fresh suit on the same course of action and held that if extension of time cannot be granted to the preemptor for deposit of the preemption money then he cannot be permitted to withdraw the suit with liberty to file a fresh suit on the same cause of action until and unless there were some compelling reasons to do so which were beyond the control of the preemptor.

In this particular case, the plaint filed by the plaintiff in the earlier suit was ordered to be rejected under Section 22(4) of the Act because the preemptor failed to deposit 1/5th of the preemption money. If extension of time cannot be given to a preemptor for depositing 1/5th of the pre emotion money then sure enough, he cannot be given the right to file a fresh suit on the same cause of action when in the earlier suit, his plaint was ordered to be rejected on the ground that he failed to deposit 1/5th of the preemption money. If the plaintiffpreemptor could not be given the right to withdraw the suit on the same cause of action in Niraj Jain''s case (supra) with liberty to file a fresh suit on the same cause of action then second suit on the same cause of action where the earlier suit had been rejected because the plaintiff failed to deposit 1/5th of the preemption money cannot be permitted to file a fresh suit on the same cause of action.

For the reasons recorded above, this revision petition is accepted, the impugned order of the trial Court being untenable cannot be sustained and is hereby set aside. No costs.