Rookmani vs Bahadur Singh and Others

D.B. Lal, J.—Shrimati Rookmani a minor through her mother as next friend, has filed this second appeal against the decision dated 12th November, 1968 of the District Judge, Simla, whereby her plaint for a suit of pre-emption preferred on her behalf against Bahadur Singh and two others, has been rejected.

The facts of the case arc, that on behalf of Rookmani minor her mother Tulsa filed a suit for pre-emption which related to a sale effected by Devi Singh, minor''s father, in favour of Bahadur Singh and Mohar Singh for 3 bighas, 10 biswas of land situate in village Korga and the sale consideration was Rs. 2,400. After the suit was filed on 4th March, 1968, the learned Sub-Judge made an order u/s 22(4) of the Punjab Pre-emption Act, 1913 and directed the Plaintiff to deposit 1/5th of the value of the land upto or before 4th April, 1968. It so happened that the Sub-Judge was transferred sometimes before 4th April, 1968 and the Court remained without a presiding officer. The reader of the Court, however, on 4th April, 1968 passed an order that the case was to come up for orders on 6th May, 1968. On this date a presiding officer was available for the Court. It was ordered by the Court that the Defendant No. 3 who was till then absent should be served and process-fee be filed by the Plaintiff and that written statements and replications should be filed. The Court directed the case to be put up on 30th May, 1968. It would be interesting to note that on 6th May, 1968 an application was moved on behalf of the Plaintiff that her guardian could not make the deposit upto 4th April, 1968 because no presiding officer was available and that the Plaintiff should be given time to make such deposit up to 30th May, 1968. It was mentioned in that application that the time was solicited upto 30th May, 1968 because the Court had fixed that date for further orders in the case. It is, therefore, obvious that this application was moved after the Court had already written the order dated 6th May, 1968 and had fixed the next date as 30th May, 1968. On the back of this application, the learned Senior Sub-Judge ordered that the petition "be put up with the file concerned". I cannot exactly understand what the learned Senior Sub-Judge meant by that order. Did he mean that the application was to be put up with the file immediately, or that the application was to be put up with the file on the date fixed in the case, i.e., on 30th May, 1968? At any rate, no order was made on this application upto 30th May, 1968. When the case was put up before the learned Senior Sub-Judge on 30th May, 1968, he considered the pleadings of the parties and framed issues. It is again to be understood that u/s 22(4) of the Act, the deposit could be made in the Court only on a date before the settlement of the issues. Therefore, the learned Senior Sub-Judge should have cared to make an order on the application of the Plaintiff dated 6th May, 1968. Instead he proceeded to frame the issues and perhaps forgot to make any order on that application. After the learned Senior Sub-Judge framed issues and fixed 28th June, 1968 as the next date in the case, his attention was drawn to the so called default committed by the Plaintiff, in depositing the amount u/s 22(4) of the Punjab Pre-emption Act, 1913. Immediately the learned trial Judge considered the objection and holding that the Plaintiff'' had committed a default in depositing the amount, dismissed the suit on the very same day, i.e., on 30th May, 1968. The order of the learned Senior Sub-Judge dismissing the suit was prima facie incorrect because he could only reject the plaint under Clause (4) of Section 22 of the Punjab Pre-emption Act, 1913.

The Plaintiff came up in appeal before the learned District Judge, Simla, and he too considered that the Plaintiff had committed a default and could not be excused and that the plaint was rightly rejected by the learned trial Judge. According to the learned District Judge, there was ample opportunity with the Plaintiff to have made the deposit upto 30th May, 1968 and that the order of the learned trial Judge indicated that the Plaintiff''s guardian was not prepared even on 30th May, 1968 to make the deposit. In the circumstances, according to the learned District Judge, no ground was made out in favour of the Plaintiff and he held that the plaint was rightly rejected.

The Plaintiff who is a minor has come up in second appeal through her next friend, and the contention on her behalf is, that the plaint could not be rejected because the Court itself made a default as it did not make any order on the application dated 6th May, 1968 moved on behalf of the Plaintiff. The guardian of the Plaintiff was under some misapprehension as regards the date when the deposit was to be made in the Court. In the circumstances, some opportunity, howsoever meagre, should have been granted by the learned trial Judge on 30th May, 1968 to enable the Plaintiff to make the deposit.

It is evident, the deposit could not be made up to 4th April, 1968 because there was no presiding officer in the Court. As such the Plaintiff could not be at fault for not making the deposit up to that date. After 4th April, 1968 a presiding officer took charge and the case was put up for the first time before him on 6th May, 1968. The reader had fixed this date on 4th April, 1968 and it is doubtful if any date could be fixed by the reader in the absence of the presiding officer. The Plaintiff could even refuse to take notice of any such date fixed by the reader who was not the presiding Judge of the Court. Therefore, the Plaintiff was justified for not making the deposit upto 6th May, 1968. An application was moved on behalf of the Plaintiff on 6th May, 1968, and as evident, the order of the learned Senior Sub-Judge never indicated as to when this application was to be put up for orders. At any rate, he did not make any order on such application. As such, the Plaintiff''s guardian could not have known as to whether her application was accepted or rejected. There was a clear misapprehension in the mind of the Plaintiff''s guardian because as a result to her application she could either make the deposit up to 30th May, 1968 or on any date prior to that date if the Court chose to give such earlier date for deposit, or not at all if the Court chose to reject her application. This misapprehension continued even up to 30th May, 1968 when the Court took up the case and started framing the issues without calling upon the Plaintiff to make the deposit. It was only subsequently that the learned Senior Sub-Judge hurried to make the order regarding rejection of the plaint because probably he asked the Plaintiff''s guardian to produce the money which he could not do on that day. It was not expected of the Plaintiff''s guardian to have brought the amount on 30th May, 1968 and, therefore, it was the duty of the learned trial Judge to have given him some breathing time, may be a day or two, to bring the money and deposit it in the Court. He exhibited an undue celerity in rejecting the plaint. In Balmokand v. Mst. Lachhman Bai AIR 1921 Lah 392, it was held that it is imperative for the Court to fix a time within which the deposit must be made and where the Court failed to do so, the pre-emptor could not be penalized for having disobeyed an order which was not made. In the instant case, no date was fixed for making the deposit and verily 30th May, 1968 was not the date fixed for making the deposit. Therefore, the plaint could not be rejected on that date. In Ram Rttan v. Rajnram AIR 1923 Lah 43, it was held that the practice of Court of rejecting plaint without giving the Plaintiff even a moment for reflection or action should be deprecated. The learned trial Judge, in the instant case did not give a moment for reflection to the Plaintiff''s guardian and straightaway rejected the plaint on 30th May, 1968 when the circumstances demanded a proper circumspection of the situation and perhaps some time should have been granted to the Plaintiff''s guardian to make the deposit. In Mehar Mohammad Din v. Pandit Anant Ram AIR 1939 Lah 25, the Courts were advised not to reject the plaint immediately but to consider whether circumstances were such as to justify an extension of time for the deposit. In that case also, there was misapprehension in the mind of the Plaintiff as to the date when the deposit was to be made. The plaint was rejected, but the order was set aside and it was held that in the circumstances of that case the time should have been extended. In Kartar Singh v. Ajmer Singh 1969 PLR 512, the order of the Court asking for deposit was not clear as to the date up to which the deposit was to be made and even the amount was not mentioned. It was thus established that there was misapprehension on the part of the pre-emptor and as such the time could be extended for making the deposit. Applying these tests to the present situation, I am irresistibly driven to conclude that the learned trial Judge showed, extraordinary hurry and little realizing that the fault was with the Court itself in not fixing a date for making deposit upon Plaintiff''s application, proceeded to reject the plaint and even dismissed the suit.

Apart from all this, it was a suit instituted on behalf of a minor who was helpless and depended upon the vigilance of her guardian. That was all the more a reason why the Court should have carefully considered all the circumstances and then decided to reject the plaint. The minor could not be penalized when her guardian was not given a date for making deposit and the application was left undecided. It was not the duty of the Plaintiff''s guardian to have obtained an order from the Court upon that application. The learned District Judge seems to have taken exception by observing otherwise. When the Court itself made the order that the application be put up alongwith the record, it was again the duty of the Court to have passed some order on the application after seeing the record. This the Court never did. It is a salutary rule which must be observed that no party should be put to harm on account of the fault committed by the Court. In my opinion, whatever fault was committed in the instant case was committed by the Court itself and the Plaintiff could not be penalised specially when she is a minor.

In view of what I have stated above, I consider that the appeal must be allowed and the order of the learned District Judge must be set aside. The Plaintiff is granted 20 days'' time with effect from the date of this judgment to make the deposit before the learned trial Judge. In case the Plaintiff fails to make such deposit, the plaint shall be deemed rejected.

The Respondents have not contested the appeal and they have chosen to remain absent. As such, no order is made as to costs.