Wali Ganai vs Ghulam Ahmad Ganai

J.N. Bhat, J.—Two suits on the basis of the right of prior purchase were brought, by Ghulam Ahmad Ganai one against Wali Ganai and

Rustum Ganai and the other against Wali Ganai and Mst. Nuri for possession of land measuring two kanals and 13 marlas under khewat No. 101

situate in village Daogarpura, and for 6 kanals under khewat No. 101 in Dangarpura respectively in the Court of the Munsiff Sopore. In the first

suit the Plaintiff alleged the consideration of the sale dated 23-7-59, which was the subject-matter of the suit, as Rs. 300/- against Rs. 800/-

mentioned in the sale-deed. Similarly in the second suit the Plaintiff in para (2) of the plaint stated that Rs. 600/- was the consideration of the sale

whereas the sale-deed contained a recital of Rs. 1500/- as the purchase money. While some of the Defendants were still being summoned in both

the cases, the trial Court of the Munsiff Sopore on 27-9-60 ordered the Plaintiff to deposit Rs. 160/- and Rs. 300/- respectively in the two suits as

1/5th of the sale price of the two plots u/s 21(1) of the Right of Prior Purchase Act. The suits were adjourned from time to time till 12-12-60 for

one reason or Anr. . On 12-12-60 issues were framed in both the suits and then evidence of the Plaintiff was ordered to be produced. On 8-3-61

an application was presented by the Defendant in both the cases that as the deposit of 1/5th of the sale price was not made by the Plaintiff in either

case, the suits should be dismissed. It appears that on 28-11-60 the Plaintiff deposited Rs. 60/- in the first suit and Rs. 120/- in the other suit. This

he did after calculating the probable value of the land as alleged by him in his plaints. When the Defendant applied for rejection of the plaints of the

Plaintiff for non-deposit of the security, the Plaintiff put in his objections on 23-3-61 in which he stated that he had deposited 1/5th of the sale price

and the market value of the land was also the same as had been mentioned by the Plaintiff in his plaints. The trial Court, after hearing arguments of

the learned Counsel for the parties, rejected the plaints of the Plaintiff in both the suits on 29-3-61. Against that order two appeals were filed

before the Sub-Judge Baramulla who by his order dated 8-12-62 set aside the orders of rejection of the two Cases and gave the Plaintiff time up

to the end of December 1962 to make up the deficiency and awarded costs of Rs. 50/- in each case against the Plaintiff for his laches. In

pursuance of this order of the appellate Court, the Plaintiff has paid the entire sums of Rs. 300/- and Rs. 160/- as ordered by the trial Court. The

Defendant Wali Ganai has come up in appeals to this Court. As the point of law involved in both the cases are the same, this judgment will dispose

of both the appeals.

In the first place we are doubtful whether an appeal lies. In an authority reported as Mt. Devki v. Gurdayal AIR 1955 NUC (HP) 2344 it was

held under similar circumstances that no further appeal lay to the High Court on an order of remand passed by the lower appellate Court in a case

of this nature. Without deciding this point we can otherwise also treat these appeals as revisions. We have heard arguments on merits and shall

dispose of both the cases on their merits.

It has been argued by the learned Counsel for the Appellant that the right of prior purchase (pre-emption) is a very weak right and the relevant

provisions of law on the subject should be strictly complied with and any dereliction on the part' of the pre-emptor should be visited with the

penalty that the law provides for such dereliction without trying to streach or interpret the law in a liberal manner in favour of a pre-emptor. He has

argued' that the Court had ordered the Plaintiff in both the cases to deposit' a particular sum within one month of its order on 27-9-60. The Plaintiff

failed to do so and in utter disregard of the orders of the Court deposited Rs. 60/- and 120/- according to his own sweet will and calculation long

after the time fixed by the Court for this purpose. The Plaintiff has thus committed a double default: firstly, he did not deposit the money in time and

secondly, he did not deposit the entire sum directed by the Court. In support of his contention the learned Counsel for the Appellant has drawn our

attention to Raja Khan v. Muhammad Khan AIR 1930 Lah 567, Bahadur Shah v. Ahmad Shah AIR 1925 Lah 209 and Sultan v. Shera AIR

1923 Lah 257(1).

In AIR 1930 Lah 567 the Plaintiff was ordered to deposit 1/5th of the purchase money, but he filed a security bond instead. The Court

accepted the security bond and placed it on the file. Later on the successor of the judge who had passed that order reviewed the previous order,

and rejected the plaint u/s 22(4) of the Punjab Pre-emption Act, which corresponds to Section 21(4) of the State Right of Prior Purchase Act. The

District Judge on appeal held that the trial Court by accepting the security bond had by implication varied its previous order an regards the cash

deposit and the plaint was not liable to be rejected. The High Court held that the mere acceptance of the security bond by the trial Court did not

amount to variation of the original order and as the original order of the Court had not been complied with, the plaint should have been rejected.

In AIR 1925 Lah 209 it was held that the provisions of Section 22(4) of the Punjab Pre-emption Act were mandatory and the Court's omission

to pass an order in accordance therewith is an illegality such as cannot be covered by Section 99 of the Code of Civil Procedure. It was further

held that if a Court which receives, attests and places on record a security bond filed after the date fixed by the Court for putting it In, does not

extend the time within which the security was to be furnished, in such a case the plaint should be rejected.

In AIR 1923 Lah 257 (1) the Plaintiff who was ordered to put in a security bond for Rs. 12,000/- put in a bond for Rs. 11,000/- only. It was

held that this action of the Plaintiff was not a compliance with the order of the Court and the plaint was therefore rejected.

These authorities do not help the case of the Appellant at all as will be presently clear. It has further been argued that the appellate Court had no

power to extend time u/s 21(4) it was a discretion only with the trial Court and the trial Court in this case not having exercised the discretion, the

appellate Court could not extend time for payment of security money.

We are afraid the whole approach of the trial Court has been erroneous and the arguments of the learned Counsel for the Appellant based on

the mandatory nature of the provisions of Section 21(4) and the exercise of discretionary powers by the trial Court and its substitution by the lower

appellate Court are extraneous to the real decision of the dispute between the parties. Section 21(1) of the Right of Prior Purchase Act lays down

that

the Court shall...require the Plaintiff to deposit in the Court such sum as in the opinion, of the Court equals to 1/5th of the probable value of the

land or property.

What is obligatory on the Court is to come to a finding as to what in its opinion is the probable value of the land or the property in dispute. The

Court must record a definite finding what in its opinion is the probable value of the property in dispute. For this purpose it may take evidence from

the parties or base its decision on the sale- deed or the statements of the parties or any other material that the Court thinks necessary. The finding

should be arrived at in a judicial manner mid not arbitrarily. Before asking the Plaintiff to deposit the security or to execute a bond, the finding of

the Court must be categorical as to the probable value of the property in dispute, though this finding shall not ultimately affect the price to be paid

by the pre-emptor for the property in dispute as provided in Section 21(6) of the Right of P.P. Act.

In this case the trial Court has simply directed the Plaintiff to deposit Rs. 160/.- and 300/- in the two cases without ever mentioning that it is the

probable value of the land in dispute or that it was the Court's opinion that these sums constitute the 1/5th of the probable value of the land in

dispute. The Plaintiff in his objections dated 23-3-61 has stated that the market value of the land is as stated by him in the plaint. It is on the basis

of that calculation that the Plaintiff deposited the sums of Rs. 60/- and 120/-. The Court, ignoring the obligatory duty cast upon it to determine what

the probable vailue of the land was, penalized the Plaintiff with the rejection of his plaint for disobedience of the order of the Court, which had no

basis or foundation of law. It has been held in Nihal Singh v. Ram Chaudar AIR 1953 Pepsu 23 on the basis of the Punjab Pre-emption Act, of

which with minor variations our Right of Prior Purchase Act is a copy, the an order of a Court which does not specify the probable value of the

land is inherently defective and the Plaintiff cannot be penalized for not faithfully complying with such an order. It has farther been held that it is

impossible to hold that the probable value invariably means the price a entered in the sale-deed. The Court has to state the value as it decided

upon the facts upon its own approximation.

When it is clear that the order of the trial Court in demanding a particular sum as security from the Plaintiff without holding it as the probable

value of the land was not a proper order, all the subsequent proceedings in the case in the trial Court, more so in the face of the Plaintiff's

objections an this behalf, were invalid and the consequent order of rejection of the plaints in both the cases is not maintainable. The Punjab

authorities cited by the learned Counsel for the, Appellant as will be clear from this finding are not at all helpful to the Appellant. In those authorities

the question of probable value was not at all in issue; it was a clear contravention of a proper and a legitimate order of a Court and the penalty

which would ensue a wilful disobedience of such order was held to be rightly imposed on the Plaintiff-pre-emptor.

Regarding the second point whether the appellate Court could extend time for payment of the security money, we would like to remark that

this point does not strictly speaking arise for determination in these cases; because when we have held that the whole basis of the order of the trial

Court was wrong and is vitiated in law, the cousequent order of rejection is not at all worthy of any notice by the appellate Court. As already

stated, the Appellant's learned Counsel contended that it was a matter of discretion for the trial Court to extend time and not for the appellate

Court. The appellate Court could not exercise a discretion not vested in it by law and should not have interfered in a matter discretionary with the

trial Court. It is profitable in this behalf to quote some authorities on the point. It was remarked toy Lord Wright in his speech in Charles Ostenton

v. Johnston 1942 AC 130 148 that.

it is always a difficult and delicate matter for an appellate Court to interfere with an order made by a learned Judge in the exercise of his discretion.

It was further stated that

the mere idea of discretion involves room for (sic) and for differences of opinion.

Viscount Simon, L.C., at p. 138 of the same judgment has remarked that

the appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the Judge.

Yet we have the observations of Lord Atkin in Evans v. Bartlam 1937 AC 473 to the following effect:

Appellate jurisdiction is always statutory; there is in the statute no restriction upon the jurisdiction of the Court of Appeal and while the appellate

Court in the exercise of its appellate power is no doubt entirely justified in saying that normally it will not interfere with the exercise of the Judge's

discretion except on grounds of law, yet if it sees on other grounds the decision will result in Injustice being done, it has both the power and the

duty to remedy it.

In Anr. case reported as Blunt v. Blunt 1943 AC 517, Viscount Simon, L.C., observed:

If it can be shown that the Court acted under a misapprehension of fact in that it either give weight to irrelevant or unproved matters of omitted to

take into account matters that are relevant, there would, in my opinion, be ground for an appeal. In such a case the exercise of discretion might be

Impeached, because the Court's discretion will have been exercised on wrong or inadequate materials.

In our opinion however the powers conferred by Section 21(4) of the Act on the trial Court to extend time can also be deemed to ho inherent

in the appellate Court. Abdul Raoof, J., in Inayat v. Barbara Singh 55 I C 621 : AIR 1920 Lah 47, remarked on p. 622 (of Ind Cas) : (on p. 48 of

AIR):

It is argued that according to the correct interpretation of Sub-sections (2) and (4) the appellate Court is to exercise powers of granting further

time when it has itself made the original order requiring the Plaintiff Appellant to make his deposit within a fixed time. It is accordingly argued that

the learned Judge of the Court below had no power to extend the time for the deposit which the Court of first instance in its discretion had refused

to do. The wording of the section is not very clear and may lend colour to this argument. According to general rules of procedure the appellate

Court has all the powers which the original Court has and can do all that the original Court can do. Sub-section (2) does not in any way take away

or cut down the powers of an appellate Court. In fact it was enacted rather to emphasize and amplify these powers. The decision of the question is

not free from difficulty, but applying general principles it may be safely held that the powers of an appellate Court have been left intact. In my

opinion Sub-section (2) was enacted rather to enlarge those powers, authorising the appellate Court to make the same orders with respect to an

appeal as the original Court has with regard to the original suit.

Though his Lordship held that the question is not free from difficulty, but reading Section 22 of the Punjab Pre-emption Act (Section 21 of the

State Act) there seems to be no difficulty about this proposition of law.

Sub-section (2) clarifies only that the powers that are possessed by a trial Court under Sub-section (1) may be exercised by the appellate

Court also. But so far as the general principles of procedure are concerned, they are not in any way curtailed by the language of Section 21(2) or

Section 21(4) of the Right of Prior Purchase Act. u/s 107 of the CPC which admittedly applies to suits under the Right of Prior Purchase Act ""the

appellate Court shall have the same power and shall perform as nearly as may be the same duties as are conferred or imposed on this Court or the

Court of original jurisdiction in respect of suits instituted therefor. The legislature could not be so unwise or short-sighted as not to envisage cases in

which trial Courts' orders would be glaringly perverse and foolish and even absurd without reserving for the appellate Court power to set them

right. Instances are not wanting and can be multiplied and even imagined where trial Courts due to incompetence, inadvertence, bona fide mistakes

or any other cause pass grossly improper orders and it would be a mockery and a travesty of justice to state that the appellate Court had no

power to set such orders right. In matter of extension of time which is a discretion vested in a trial Court, it is possible that a trial Court may err and

give a palpably wrong finding. The aggrieved party in such cases could not be left without a remedy. Therefore, under the general powers of an

appellate Court the right to extend time for payment of security money in such case is always vested and will be deemed to have vested in a Court

of Appeal.

In these cases the real order of the trial Court proceeded on ignoring or rather in breach of a mandatory provision of the Right of Prior

Purchase Act and the appellate Court had, therefore, ample power to extend time for payment of money. In fact these cases are not cases for

extension of time; they are cases of fixation of time by the appellate Court. Though here it may be remarked that the appellate Court did not

consider the question of the probable value of the land, yet the result has been that the entire 1/5th of the sale price as ordered by the trial Court

has been deposited by the Plaintiff within the time fixed by the appellate Court. Moreover, in both the cases the Plaintiff has deposited a sum of Rs.

50/- each as costs for the Appellant. In an authority reported as AIR 1940 202 (Nagpur) it has been here that the appellate Court can extend time

fixed by the trial Court for making deposit of the preemption money. Order 20, Rule 14, CPC lays down that the Plaintiff in a pre-emption suit

shall be required to deposit in Court or pay in Court a particular sum on or before a particular date; in case of his default to do so, the suit shall be

dismissed with costs. In this rule no provision is made for extension of time for payment, but it is clear from the above authority that the appellate

Court' has been held to have power to extend time for payment in such cases also. There is no reason why this power should not be exercised by

the appellate Court in an appeal from an order u/s 21(4) of the Right of P. P. Act.

In the instant cases the entire amounts required to be deposited have been deposited as also the costs of Rs. 50/- in each case. The order of

the trial Court was without any foundation. In view of what has been stated above, there is no force in these appeals which are rejected, but in

view of the confusion created by all concerned, there will be no order as to costs.

S. Murtaza Fazi Ali, J.

I agree.