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2007 DIGILAW 367 (PNJ)

Dinesh v. Lal Singh

2007-03-06

VINOD K.SHARMA

body2007
Judgment 1. The petitioner-decree holders by way of this revision petition have challenged the order dated 12-8-1985 passed by the Sub-Judge 1st. Class, Gurgaon, vide which the application moved by the petitioners for extension of time for deposit of pre-emption money has been declined and the suit filed by the petitioner-plaintiffs for possession by way of pre-emption has been ordered to be dismissed. 2. The petitioners filed a suit for possession by way of pre-emption and the same was decreed by the learned trial Court on 8th May, 1984. The decree was subject to deposit of Rs. 11,960/- less 1/5th pre-emption money which was to be deposited on 18th July, 1984. It was made clear in the said decree that on failure of the plaintiffs to deposit the amount by 18th July 1984, the suit of the plaintiff-decree holders was liable to be dismissed. The decree-holder-petitioners failed to deposit the amount on 18th July, 1984, but deposited the same on 25th July 1984. The defendant-judgment-debtors moved an application for withdrawal of the amount when it came to their notice that the amount had not been deposited within the stipulated period and thereafter an application was moved by the decree-holders-petitioners for extension of time. 3. The petitioners sought extension of time on the plea that Smt. Parbhati, natural guardian of plaintiff No. 1 had come to deposit the amount, but she fell ill on 17-7-1984 and, therefore, the pre-emption money could be deposited only 25th July, 1984. In the application moved for extension of time, it was pleaded that the money which was to be deposited by plaintiff No. 2 was given to Smt. Krishana Devi, who also handed over the same to Smt. Parbhati Devi. 4. The learned trial Court rejected the application on the ground that it had no power to extend the time for deposit of the purchase or pre-emption money and accordingly the suit was ordered to be dismissed. 5. Mr. Puneet Bali, learned counsel appearing on behalf of the petitioners challenged the impugned order primarily on the ground that the findings recorded by the learned trial Court cannot be sustained in view of the law laid down by the Hon ble Supreme Court in the case of Jogdhayan V/s. Babu Ram and others, AIR 1983 SC 57. 5. Mr. Puneet Bali, learned counsel appearing on behalf of the petitioners challenged the impugned order primarily on the ground that the findings recorded by the learned trial Court cannot be sustained in view of the law laid down by the Hon ble Supreme Court in the case of Jogdhayan V/s. Babu Ram and others, AIR 1983 SC 57. The Hon ble Supreme Court in this case was pleased to hold as under :- "The next question for decision is whether the first execution appellate Court was justified in holding that the amount directed to be deposited was not deposited as it fell short by 25 paise. Order 20, Rule 14, Civil P. C. provides :- "Decree in pre-emption suit - (1) Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase money has not been paid into Court, the decree shall- (a) specify a day on or before which the purchase money shall be paid, and (b) direct that on payment into Court of such purchase money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase money and the costs (if any) are not so paid, the suit shall be dismissed with costs. (2) ..........................................." Under O. 20 R. 14, C. P. C., the plaintiff-decree-holder, in order to get delivery of possession of the land, has to fulfil two conditions; he has to deposit in Court (i) the purchase money together with the costs, if any, decreed against him and (ii) the deposit must be made on or before the date fixed by the Court. Here the admitted position is that the appellant deposited the entire amount of purchase money together with the costs decreed against him, less 25 paise within the time fixed by the Court and 25 paise too were deposited, but beyond time. Here the admitted position is that the appellant deposited the entire amount of purchase money together with the costs decreed against him, less 25 paise within the time fixed by the Court and 25 paise too were deposited, but beyond time. The executing Court held that the short deposit was due to a bona fide mistake, while the executing appellate Court held that it was not due to any bona fide mistake, but it was a default and thereby the executing appellate Court deprived the decree-holder of the legitimate fruits of the decree he obtained on all the Courts. The finding of the first executing appellate Court that the non-deposit could not be due to any bona fide mistake, is absolutely untenable, for the reason that while the appellant has deposited in total Rs. 17,936.00 from time to time as directed by the Courts, there was absolutely no reason as to why he would not have deposited 25 paise unless it was due to a mistake. This was pre-eminently a case in which the first execution appellate Court ought to have exercised its discretionary powers under Section 148 C. P. C. and accepted the delayed deposit of 25 paise as was done by the original executing Court." However, the stress of the learned counsel for the petitioners was that Hon ble Supreme Court in Jogdhayan s case (supra) has been pleased to lay down that power given to the Court under Section 148 C. P. C. is discretionary and is given for the purpose of securing the ends of justice in the case of necessity and, therefore, the contention of the learned counsel for the petitioners was that it was wrong on the part of the learned trial Court to come to conclusion that it had no jurisdiction to extend the time. 6. Learned counsel for the petitioners further placed reliance on a judgment of the Hon ble Supreme Court in the case of Vareed Jacob V/s. Sosamma Geevarghese and others, (2004) 6 SCC 378 : AIR 2004 SC 3992 in which the Hon ble Supreme Court has been pleased to consider the powers of the Court under Section 151 of the Code of Civil Procedure and has laid down that the inherent power of the Court to do justice is in addition to and complementary to powers conferred under CPC expressly or by implication. Thereafter by making reference to the judgment of the Hon ble Supreme Court in the case of Salem Advocate Bar Association, T. N. V/s. Union of India (2005) 6 SCC 344: (AIR 2005 SC 3353), learned counsel for the petitioners contended that the powers of this Court to exercise revisional jurisdiction under Articles 226 and 227 of the Constitution of India continues to exist untrammelled and can be exercised in spite of the amendment of Section 115 of the CPC by Act 46 of 1999 w.e.f. 1-7-2002. He further submitted that 30 days limit introduced by Section 148 CPC by way of Amendment Act 46 was not mandatory and the Court in exercise of its inherent power can still extend the time, though the contention of the petitioner was that in the present case the delay was merely of 7 days. 7. Learned counsel for the petitioners further referred to the judgment of the Hon ble Supreme Court in the case of S. Rama Iyer V/s. Sundarasa Ponnapoondar, (1966) 3 SCR 474 : (AIR 1966 SC 1431) to contend that even under Section 115 of the CPC the High Court is empowered to correct an erroneous assumption of jurisdiction or to correct an erroneous refusal of jurisdiction. The contention of the learned counsel for the petitioner was that the learned trial Court has failed to exercise the jurisdiction erroneously and, therefore, the impugned order deserves to be set aside. 8. Learned counsel for the petitioners by placing reliance on the judgment of the Hon ble Supreme Court in the case of Ganesh Prasad Sah Kesari and another V/s. Lakshmi Naran Gupta, (1985)3 SCC 53 : AIR 1985 SC 964 contended that the Court which fixes the time under Section 148 of the CPC retains discretion to extend the same and, therefore, it was always open to the learned trial Court to have extended the time by 7 days in depositing of pre-emption money. Learned counsel further made a reference to the judgment of the Hon ble Supreme Court in the case of Chinna-markathian alias Muthu Gounder and another V/s. Ayyavoo alias Periana Gounder and others, (1982)1 SCC 159 : AIR 1982 SC 137 to contend that jurisdiction to grant time includes, in absence of any contrary indication jurisdiction to grant extension of time. 9. 9. Finally by placing reliance on the judgment of the Hon ble Supreme Court in the case of Johri Singh V/s. Sukh Pal Singh and others, (1989)4 SCC 403 : AIR 1989 SC 2073, learned counsel for the petitioners contended that Section 148 CPC empowers the Court to extend the time fixed by it even after the expiry of period originally fixed. It by implication allows the Court to enlarge the time before the time originally fixed and an application thereunder merely invokes the jurisdiction conferred on the Court. The Hon ble Supreme Court has been further pleased to lay down that use of the word may shows that the power is discretionary, and the Court, is, therefore, entitled to take into account the conduct of the party praying for such extension. The contention of the learned counsel for the petitioners, therefore, was that the reasons given by the petitioners seeking extension of time were good and sufficient reasons on which the learned trial Court should have granted the extension of time. Therefore, the sum and substance of the arguments of the learned counsel for the petitioners was that the trial Court had failed to exercise the jurisdiction vested in it on the wrong presumption that it has no jurisdiction to extend time in pre-emption cases. 10. On the other hand, Mr. C. B. Goel, learned counsel appearing on behalf of the respondents supported the impugned order passed by the learned trial Court by placing reliance on the judgment of this Court in the case of Kirpa Ram V/s. Ghasi, 1981 P L J 257 wherein this Court has been pleased to lay down as under :- "2. Mr. C. B. Goel, the learned counsel for the petitioner has argued that the decree in a suit for pre-emption is a conditional decree. The decree itself provided that if the purchase money and the costs, if any, are not paid, the suit shall be dismissed with costs. In fact Order 20, Rule 14, Civil Procedure Code, in terms provides that where a Court decrees a claim of pre-emption in respect of a particular sale of property and the purchase money has not been paid in Court, the decree shall specify the date on or before which the purchase money shall be so paid, and if the purchase money and the costs are not so paid, the suit be dismissed with costs. After passing a decree in a pre-emption case, the trial Court becomes functus officio. It cannot extend time for payment because that will amount to varying the terms of the decree. That can be done only in accordance with the procedure prescribed by the Civil Procedure Code. Admittedly, the trial Court has varied the decree. None has appeared for the respondent to oppose this revision petition despite service. 3. The decree in a pre-emption suit has to conform to the requirements postulated by Order 20, Rule 14, Civil Procedure Code. Indeed in the present case, the trial Court had passed decree in consonance with this requirement. It had ordered the payment of the decretal amount by the 2nd September, 1975. It had been specifically ordered that in case of default in depositing the decretal amount the suit of the plaintiff shall stand dismissed. Their Lordships of the Supreme Court in Mahant Ram Dass V/s. Ganga Dass, AIR 1961 Supreme Court 882, have laid down that procedural orders other than the conditional decrees can be varied and time fixed by the Court can be extended. Their Lordships observed :- "The procedural order through pre-emptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed." Their Lordships were considering the question of extension of time under Sections 148, 149 and 151 of the Civil Procedure Code. They have clearly excluded the conditional decrees from the application of this principle. It, therefore, follows that the time cannot be extended in case of conditional decrees though it can be extended if the circumstances justify in other cases where the time is fixed by the Court. Section 148 of the Civil Procedure Code does not entitle the Court to extend the time for deposit of the decretal amount. Time prescribed by the decrees passed under Order 20, Rule 14, Civil Procedure Code, cannot be extended (See AIR 1934 Oudh 17 (18)(DB), AIR 1939 Nagpur 107, AIR 1950 Allahabad 663, AIR 1972 Rajasthan 139, and AIR 1976 Bombay 369)." 11. Time prescribed by the decrees passed under Order 20, Rule 14, Civil Procedure Code, cannot be extended (See AIR 1934 Oudh 17 (18)(DB), AIR 1939 Nagpur 107, AIR 1950 Allahabad 663, AIR 1972 Rajasthan 139, and AIR 1976 Bombay 369)." 11. Learned counsel for the respondents further placed reliance on a judgment of the Hon ble Supreme Court in the case of Naguba Appa V/s. Mamdev, AIR 1954 SC 50 to contend that provisions of Order 20, Rule 14, CPC are mandatory in nature and on failure to deposit the money within the stipulated time, the suit was required to be dismissed and, therefore, the learned trial Court was right in dismissing the suit. Para 2 of this judgment reads as under :- "It was contended on behalf of the appellant that the decision of the High Court was wrong inasmuch as an appeal having been preferred from the trial Court s decree in the pre-emption suit, the pre-emptor was justified in not depositing the amount within the time fixed by the decree. This argument cannot be sustained. Mere filing of an appeal does not suspend the decree of the trial Judge and unless that decree is altered in any manner by the Court of appeal, the pre-emptor is bound to comply with its directions. In our opinion, the High Court was right in holding that the pre-emptor s suit stood dismissed by reason of his default in not depositing the pre-emption price within the time fixed in the trial Court s decree. It was next contended that the decree drawn up by the trial Judge was not in accordance with the provisions of Order 20, Rule 14 in that it contained no direction to the effect that if the deposit was not made within the time fixed the suit will stand dismissed. In our view, this contention is not sound because the dismissal of the suit is as a result of the mandatory provisions of Order 20, Rule 14 and not by reason of any decision of the Court and the omission to incorporate this direction in the decree could not in any way affect the rights of the parties." 12. In our view, this contention is not sound because the dismissal of the suit is as a result of the mandatory provisions of Order 20, Rule 14 and not by reason of any decision of the Court and the omission to incorporate this direction in the decree could not in any way affect the rights of the parties." 12. The learned counsel for the respondents thereafter placed reliance on the judgment of the Hon ble Supreme Court in the case of Sulleh Singh and others V/s. Sohan Lal and another, AIR 1975 SC 1957 to contend that the directions given by the trial Court for deposit of amount in terms of Order 20, Rule 14, CPC, are mandatory and the pre-emptor is bound to comply with the directions of the trial Court and on failure to do so, even the Appellate Court is bound to dismiss the suit. Paras 13 and 15 of the said judgment read as under :- "13. In the present case, the lower, Appellate Court did not grant any stay to the plaintiffs-respondents. In view of the fact that the plaintiffs respondents did not deposit the amount as directed by the trial Court on or before 1st April 1969, it became mandatory on the lower appellate Court by reason of the ruling of this Court in Naguba Appa s case AIR 1954 SC 50 (supra) to dismiss the suit. The observations of this Court in Naguba Appa s case (supra) that the pre-emptor is bound to comply with the directions of the trial Judge unless that decree is altered in any manner by a Court of Appeal do not mean that where the deposit is not made in accordance with the directions of the trial Court the appellate Court can extend the time for payment. Thereafter, the lower appellate Court was in error in extending the time for payment till 20th August, 1969. 15. The contention of the appellants that the lower appellate Court was wrong in extending the time for payment is correct because the failure of the plaintiffs respondents to deposit the amount in terms of the trial Court s decree would result in pre-emptor s suit standing dismissed by reason of their default in not depositing the pre-emption price. 15. The contention of the appellants that the lower appellate Court was wrong in extending the time for payment is correct because the failure of the plaintiffs respondents to deposit the amount in terms of the trial Court s decree would result in pre-emptor s suit standing dismissed by reason of their default in not depositing the pre-emption price. The contention of the appellants that the High Court was wrong in not setting aside the order of extension of time passed by the lower appellate Court is correct. It is only if the plaintiffs respondents had paid the decretal amount within the time granted by the trial Court or if the plaintiffs respondents had obtained another order from the lower appellate Court granting any order of stay that the lower appellate Court might have considered the passing of appropriate order in favour of pre-emptors. The High Court should have allowed the appellant s appeal and not made any distinction in dismissing plaintiff-respondent Nathi s suit and allowing plaintiff-respondent Sohan Lal any extension of time to make the payment. Further, it appears that the plaintiff-respondent Sohan Lal did not pay the amount." 13. Lastly, the learned counsel for the respondents placed reliance on the judgment of the Hon ble Supreme Court in the case of Johri Singh V/s. Sukh Pal Singh and others, (1989) 4 SCC 403 : AIR 1989 SC 2073 (supra) which was also relied upon by the learned counsel for the petitioners, to contend that the Hon ble Supreme Court has laid down the powers of the Court to be exercised under Section 148, CPC in the case of suit for pre-emption. Paras 15 to 18 of the judgment read as under :- "15. Jogdhyan V/s. Babu Ram also is a case of failure to deposit a fraction of the decretal amount. The appellant obtained a preemption decree and deposited a sum of Rs. 15,500 at the purchase price and Rs. 100 as registration charges and other expenses of the deed. The respondents appeal therefrom was dismissed by the Additional District Judge with the modification directing the appellant to deposit a sum of Rs.1836.25 more in the trial court for payment to the vendee within April 15, 1967; in case of failure the suit would stand dismissed. On April 14, 1967 the appellant deposited Rs. 1836/- only instead of Rs. 1836.25. The respondents appeal therefrom was dismissed by the Additional District Judge with the modification directing the appellant to deposit a sum of Rs.1836.25 more in the trial court for payment to the vendee within April 15, 1967; in case of failure the suit would stand dismissed. On April 14, 1967 the appellant deposited Rs. 1836/- only instead of Rs. 1836.25. He, however, made good the short deposit of 25 paise on October 28, 1968 with the permission of the Court averring that the omission to deposit 25 paise was due to bona fide mistake. The vendee s appeal was dismissed by the High Court with a direction to the appellant to deposit within 3 months time a further sum of Rs. 500 for the improvements made to the land and the appellant deposited that sum within time. Before the executing Court the respondent-vendee filed the application under Order XX, Rule 14(1)(b) contending that the short deposit of 25 paise within April 15, 1967 amounted to deemed dismissal of the suit itself and that the default could not be condoned. The executing Court having overruled the objections, the judgment debtor s appeal therefrom was accepted by the Additional District Judge holding that Order XX, Rule 14 (1)(b) CPC was mandatory and the short deposit was not due to bona fide mistake and hence the default could no be condoned. The appellant s second execution appeal before the High Court was dismissed on the ground of limitation. On appeal by special leave, this Court held that the admitted position was that the appellant deposited the entire amount of purchase money together with the costs, decreed against him, less 25 paise within the time fixed by the Court and 25 paise too was deposited, but beyond time. The executing Court held that the short deposit of 25 paise was due to the bona fide mistake, while the executing appellate Court held that it was not due to any bona fide mistake, but it was a default and thereby the executing appellate Court deprived the decree holder of the legitimate fruits of the decree he obtained in all the Courts. The finding of the first executing appellate Court that the non-deposit could not be due to any bona fide mistake, was absolutely untenable for the reason that while the appellant had deposited in total Rs. The finding of the first executing appellate Court that the non-deposit could not be due to any bona fide mistake, was absolutely untenable for the reason that while the appellant had deposited in total Rs. 17,936 from time to time as directed by the Courts, there was absolutely no reason as to why they would not have deposited 25 paise unless it was due to a mistake. This was pre-eminently a case in which the first execution appellate Court ought to have exercised its discretionary powers under Section 148 CPC and accepted the delayed deposit of 25 paise, as was done by the original executing Court. The appeal was accordingly allowed, the orders, of the High Court as well as the first execution appellate Court were set aside and the order of the original executing Court was restored. 16. In Jogdhayan V/s. Babu Ram this Court considered the provision of Section 148 CPC qua Order XX, Rule 14 CPC and held that the appellate Court could have exercised the power as was done by the lower Court. 17. Section 148 deals with enlargement of time and provides "Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired. 18. This section empowers the Court to extend the time fixed by it even after the expiry period originally fixed. It by implication allows the Court to enlarge the time before the time originally fixed. The use of the word may shows that the power is discretionary, and the Court is, therefore, entitled to take into account the conduct of the party praying for such extension." 14. The contention of the learned counsel for the respondents, therefore, was that it was only in the cases where a mistake is committed due to the fault of the Court, that the power under Section 148, CPC can be exercised. 15. I have considered the contentions raised by the learned counsel for the parties and find no force in the present revision petition. 16. It is not in dispute that the Court has the power to extend time under Section 148 of the CPC in the given circumstances. 15. I have considered the contentions raised by the learned counsel for the parties and find no force in the present revision petition. 16. It is not in dispute that the Court has the power to extend time under Section 148 of the CPC in the given circumstances. However, the power under Section 148 of the CPC has to be exercised in view of the provisions of the CPC. The pre-emption decrees are regulated by the provisions of Order 20, Rule 14, CPC which reads as under:- "Decree in pre-emption suit- (1) Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase-money has not been paid into Court, the decree shall - (a) specify a day on or before which the purchase money shall be so paid, and (b) direct that on payment into Court of such purchase money, together with the costs (if any) decreed against the plaintiff on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with costs. (2) Where the Court has adjudicated upon rival claims to pre-emption, the decree shall direct,-- (a) if and in so far as the claims decreed are equal in degree, that the claim of each pre-emptor complying with the provisions of sub-rule (1) shall take effect in respect of a proportionate share of the property including any proportionate share in respect of which the claim of each pre-emptor failing to comply with the said provisions would but for such default, have taken effect; and (b) if and in so far as the claims decreed are different in degree, that the claim of the inferior preemption shall not take effect unless and until the superior pre-emptor has failed to comply with the said provisions." 17. The time, therefore, fixed by the Court in the case of pre-emption suit; is not in exercise of its discretion, but in view of the mandatory provisions of law which also provide that on failure of the decree holder to comply with the said directions, the suit would be dismissed. The time, therefore, fixed by the Court in the case of pre-emption suit; is not in exercise of its discretion, but in view of the mandatory provisions of law which also provide that on failure of the decree holder to comply with the said directions, the suit would be dismissed. It may be noticed here that in the present case no amount was deposited by the decree-holders in pursuance of the order passed by the Court within the stipulated period. Plaintiff No. 2 has come forward with a plea that the money to be deposited by him through natural guardian of plaintiff No.1, was given to Parbhati Devi, who was stated to be fallen ill. Thus, it seems merely to be an excuse to cover a lapse which cannot be condoned in view of the fact that it has been authoritatively held by the Hon ble Supreme Court that the provisions of Order 20, Rule 14 of the CPC are mandatory in nature. The Hon ble Supreme Court in the case of Johri Singh (supra) has been pleased to lay down that only a relatively small fraction of the purchase money due to inadvertent mistake whether or not caused by any action of the Court, can be condoned and period extended. In view of the authoritative pronouncements of the Hon ble Supreme Court the provisions of Section 148 of the CPC cannot be used to negate the mandatory provisions of law dealing with pre-emption suits. 18. In view of the foregoing discussion, I find no merit in the present revision petition, which is accordingly dismissed.