Sher Singh vs Puran and others

D.V. Sehgal, J.—This revision petition arises out of the order dated 18th January 1985 of Shri P. K. Goel Sub Judge 1st Class, Jagadhri.

It is proper to narrate the facts to appreciate the question involved in the present revision petition. Sher Singh petitioner filed a suit for possession by way of pre-emotion which was decreed by the Additional Senior Sub Judge, Jagadhri, vide order dated 5th March 1984. In terms of the decree, Sher Singh plaintiff-petitioner was directed to deposit a sum of Rs. 42125/- less 1/5th pre-emption money already deposited by him on or before 30th April 1984, failing which his suit was to stand dismissed.

The plaintiff-petitioner Sher Singh had already deposited a sum of Rs. 7400/- as 1/5th of the pre-emption money. The sale which was sought to be pre-empted was for a consideration of Rs. 37,000/-. The Additional Senior Sub Judge while decreeing the suit further directed the plaintiff-petitioner to pay Rs. 4625/-towards the stampduty paid on the sale deed and Rs. 500/- towards registration and other expenses. Thus, the balance amount which he was required to deposit was Rs. 34725/-.

On 11th April, 1984 the plaintiff-petitioner Sher Singh moved an application for permission to deposit Rs. 34625/- as the remaining pre-emption amount. This application was allowed by the learned Additional Senior Sub Judge on the same day. No doubt in the order the Additional Senior Sub Judge recorded a note that the amount was allowed to be deposited as per the request of the plaintiff-decree-holder on his own responsibility. The amount of Rs. 34625/- was accordingly deposited.

It was after 30th, April 1984 when the execution of the decree had been taken out for securing possession of the suit land that the plaintiff-petitioner and his counsel realised that because of wrong calculations the amount deposited was short by Rs. 100/-. As such an application u/s 151, C.P.C. was moved on 23rd May, 1984 for allowing the plaintiff-petitioner to deposit Rs. 100/- after the time stipulated in the decree had expired on 30th April, 1984. This application has been declined by the trial Court firstly on the ground that the plaintiff petitioner or his counsel did not file any affidavit to the effect that the mistake in calculating the pre-emption amount to be deposited was bona-fide, Secondly, it was held that there was no power with the Court to extend the time stipulated in the conditional decree on payment of some amount u/s 148, C.P.C.

On going through the facts and circumstances of the case, I find that the trial Court has failed to exercise the jurisdiction vested in it by declining the application of the petitioner. The very fact that the plaintiff-petitioner deposited a sum of Rs. 34625/- before the stipulated period goes to show that the mistake in calculations was bona fide because had the plaintiff-petitioner or his counsel realised the mistake earlier then the paltry sum of Rs. 100/- would also have been deposited well within time, i.e. on or before 30th April, 1984. This mistake cannot, therefore, be termed as deliberate and the short deposit cannot be styled as either for lack of bona fides or for want of funds.

The view taken by the trial Court that it had no power to allow time for deposit of Rs. 100/- as the time stipulated in the decree dated 5th March, 1984 had elapsed on 30th April, 1984 runs counter to the law laid down by their Lordships of the Supreme Court in Smt. Jodhayan Vs. Babu Ram and Others, , wherein their Lordships have held that in case of bona fide mistake in short deposit of a paltry sum, the discretionary power u/s 148, C.P.C. ought to be exercised by the executing Court and the delayed deposit should be accepted. I am, therefore, of the firm view that the short deposit of Rs. 100/- only, i,e. deposit of Rs. 34625/- instead of Rs. 34725/-, by the plaintiff- decree-holder was on account of a bona fide mistake and the trial Court had ample power u/s 148, C.P.C. to accept the delayed deposit of Rs. 100/-. The learned counsel for the respondents has relied on a judgment of this Court in Smt. Parmeshri v. Naurata (1984) 86 P.L.R, to contend that this Court had distinguished the judgment of the Supreme Court in Jogdhayan''s case (supra). This is no doubt so. But the facts and the circumstance of the present case in which short deposit of Rs. 100/- was made bring this case within the fold of the law laid down by the Supreme Court in Jogdhayan''s case (supra). I, therefore, follow the dictum of the Supreme Court.

The present revision petition is, therefore, allowed and the order of the learned Sub Judge Ist Class Jagadhri, dated 18th January, 1985 is set aside. The learned Sub Judge is directed to accept the deposit of Rs. 100/- so as to complete the full amount of Rs. 42125/- less 1/5th pre-emption money already deposited as per the terms of the decree dated 5th March, 1984 and proceed to execute the decree in accordance with law. The amount of Rs. 100/- shall be deposited by the petitioner within one month from today. There shall, however, be no order as to costs.