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2005 DIGILAW 454 (PNJ)

Ram Raji @ Rana Ji Lal v. Maya Devi

2005-03-30

ASHUTOSH MOHUNTA

body2005
Judgment Ashutosh Mohunta, J. 1. Challenge in this petition is to the order dated 13.8.1994 passed by the Sub Judge Ist Class, Rohtak vide which the possession of the land in dispute has been ordered to be re-delivered to the judgment debtors (vendors) the pre-emptor Ram Raji etc. 2. Land measuring 14 kanals 3 marlas situated in village Kharak Khurd Tehsil and District Rohtak was sold by Bansanti Devi and Sugan Bai in favour of Dhanpat. Azad and Phool Chand, defendant-respondent Nos. 7 to 9 for a consideration of Rs. 30,000/- vide registered sale deed dated 12.6.1989. Ram Raji and Madan Lal plaintiff, being co-sharers, filed the suit for pre-emption claiming their superior right to purchase the property. Though the suit was dismissed by the trial Court but the Additional District Judge, Rohtak had decreed the suit by passing the following order on 8.2.1993;- "...Consequently, the suit of the plaintiffs-appellants is decreed for possession by way of pre-emption of the suit land on payment of Rs. 30,000.00 plus stamp and registration charges minus Zare-e-Panjam, if any to be deposited on or before 9.3.1993 failing which the suit of the plaintiffs shall stand dismissed." 3. An amount of Rs. 6,000.00 as Zare-e-Panjam had been deposited by the petitioners on 25.8.1989, whereas the amount of Rs. 28,128.75 was deposited on 24.2.1993 after the order dated 8.2.1993 passed by Additional District Judge. Thereafter the execution application was filed on 25.2.1993. Notice of the execution application was issued to the respondents but no objection with regard to the deficiency in the amount deposited by the petitioners was raised by the respondents. Consequently, the possession of the suit land was delivered to the petitioners by the revenue authorities on 6.10.1993. After the delivery of possession, the respondent-vendees filed on application on 01.12.1993 wherein objection was raised by the respondent-vendees that the amount deposited by the petitioner was deficient to the tune of Rs. 1,50. In the reply filed by the petitioners it was pleaded that there was an inadvertent error in making calculation while depositing the amount, as the petitioners being illiterate farmers, the calculation was made by their counsel Sh. Nand Kishore, Advocate. They also filed an application for allowing them to make up the deficiency in the amount. 1,50. In the reply filed by the petitioners it was pleaded that there was an inadvertent error in making calculation while depositing the amount, as the petitioners being illiterate farmers, the calculation was made by their counsel Sh. Nand Kishore, Advocate. They also filed an application for allowing them to make up the deficiency in the amount. However, the Sub Judge, Ist Class, Rohtak, vide order dated 13.8.1994 (Annexure P9) allowed the application filed by the vendees-Judgment Debtors and they were held entitled to take back possession of the suit land. It is against this order that the present petition has been filed by the petitioners. 4. Mr. R.S. Mittal, learned Senior Advocate, appearing for the vendee-Judgment Debtors (respondents herein), contends that the Court is debarred from extending the time in conditional orders u/s. 148, C.P.C. In support of his contention he has placed reliance on Smt. Parmeshri V/s. Naurata, (1984)86 P.L.R. 591. It has further been contended by Mr. Mittal that the Court was competent to enlarge time only in procedural orders and not in conditional order. As in the present case conditional order was passed by the Additional District Judge, Rohtak, on 8.2.1993, whereby condition was put on the petitioner-Decree holders to make the full payment minus the Zare-e-Panjam on or before 9.3.1993, failing which their suit for pre-emption was liable to be dismissed, no extension in time for making the balance payment can be granted by the Court after expiry of the period prescribed therefore. The counsel has also placed reliance on the dictum of their Lordships of the Supreme Court in Mahant Ram Das V/s. Ganga Das, AIR 1961 SC 882. 5. On the other hand, Mr. S.K. Yadav, learned counsel for the petitioners, has contended that under Section 148 C.P.C. the Court is competent to extend the time even if the original time limit as prescribed by the Court had expired in deserving cases where bonafide mistake had occurred while making the deposit of money. In support of his contention he has placed reliance on Jogdhayan V/s. Babu Ram and Ors., AIR 1983 SC 57; and Johri Singh V/s. Sukh Pal Singh and Ors., AIR 1989 SC 2073. 6. After hearing the learned counsel for the parties and on going through the case file, I do not find any merit in the contentions raised by Mr. 6. After hearing the learned counsel for the parties and on going through the case file, I do not find any merit in the contentions raised by Mr. R.S. Mittal, learned Senior Advocate, appearing for the Judgment Debtor respondents. As the facts (which have been enumerated above) reveal, the pre-emption suit of the petitioner-plaintiffs was decreed for a sum of Rs. 30,000/- plus stamp and registration charges minus the amount of Zare-e-Panjam. In this way the total amount comes to Rs. 28.140.25, which was required to be deposited by the plaintiff-petitioners (after deducting the amount of Zare-e-Panjam to the tune of Rs. 6,000/-) on or before 9.3.1993. However, instead of depositing an amount of Rs. 28,140.25, the petitioners deposited a sum of Rs. 28,138.75 on 24.2.1993. Thus, there was a deficiency to the tune of Rs. 1.50 in the deposit made by the plaintiff-petitioners. It is the case of the petitioners that they being illiterate farmers, the calculation was made by their counsel before the trial Court Sh. Nand Kishore, Advocate. The petitioners have placed on record the original application dated 23.2.1993 (Annexure P2) by which the deposit was made, as well as the execution application dated 25.2.1993 (Annexure P3), which are statedly in the handwriting of Sh. Nand Kishore, Advocate. In order to substantial their contention. I do not fine any insincerity in the contention raised by the petitioners in this regard. They had deposited a sum of Rs. 28,138.75 on 24.2.1993, much prior to the last date for making the payment, i.e., 9.3.1993. If they could deposit Rs. 28,128.75, there was no sense in making deficient deposit of Rs. 1.50. This fraction amount of Rs. 1.50 could also be deposited by them on the date when the amount of Rs. 28,138.75 had been deposited by them. It seems there was bona fide mistake on the part of the petitioners. In Johri Singhs case (supra) the decree-holders had deposited Rs. 100/- less than the total amount payable by them, though they had paid an amount of Rs. 33,682/-. 28,138.75 had been deposited by them. It seems there was bona fide mistake on the part of the petitioners. In Johri Singhs case (supra) the decree-holders had deposited Rs. 100/- less than the total amount payable by them, though they had paid an amount of Rs. 33,682/-. It was held by their Lordships of the Supreme Court that sufficient cause was made out by the decree-holder for extension of time on his failure to make payment of small amount within the time fixed by the Court and the Trial Court had the jurisdiction to extend the time under Section 148 C.P.C. Similarly, in Jagdhayans case (supra) the decree-holder in a pre-emption suit had deposited the entire amount of purchase money together with costs, less 25 paise within the time fixed by the Court. In such a situation, it was held by their Lordships that dismissal of the appeal by the High Court was not warranted and the power under Section 148, C.P.C. should have been exercised. The ratio of both the authorities is squarely applicable to the facts appearing in the present case where the petitioners have failed to deposit only a fraction sum of Rs. 1.50 whereas a substantial sum of Rs. 28.138.75 had been deposited by them on 24.2.1993 much prior to the last date fixed for making the payment. 7. In the light of above discussion, I allow the petition and set aside the order dated 13.8.1994 (Annexure P9) passed by the Sub Judge Ist Class, Rohtak. The application dated 29.11.1993 filed by the Judgment Debtors (respondents herein) stands dismissed whereas the application dated 1.2.1994 (Annexure P10) wherein a prayer has been made by the decree holders (petitioners herein) for deposit of less amount of Rs. 1.50 is allowed. The petitioners are directed to deposit the deficient amount before the Executing Court within a period of one month from the date of receipt of a certified copy of this order. On deposit of the deficient amount, the petitioners shall become the owners in possession of the suit land.