NAND RAM Vs. BANARSI

JUDGEMENT

(1.) The facts giving rise to this petition have to be stated in order to appreciate the entire controversy. A pre-emption decree was passed in favour of the pre-emptor on 22nd November, 1967. It was provided in the decree that a sum of Rs. 543/- had to be deposited otherwise the suit will stand dismissed. A sum of Rs. 150/- already been deposited being one-fifth of the sale consideration. Thus, only Rs. 393 had to be deposited. An application was made on the 23rd November, 1967, to the trial Court and in that application a prayer was made that a sum of Rs. 393 be deposited towards the decree and it was also mentioned that Rs. 150 had already been deposited. The Court, on the 24th of November, 1967, passed an order that the pre-emptor may deposit Rs. 353 instead of Rs. 393/-. This amount was deposited. On the 7th of August, 1968, the vendee applied for payment of the pre-emption money to him and it was then discovered that the amount deposited fell short by Rs. 40/-. This led the vendee in making the application dated 27th August, 1968, praying that the suit be dismissed. In the meantime, the plaintiff pre-emptor also filed an application on the 5th October, 1968, that he may be permitted to deposit the balance of Rs. 40/- which he had failed to deposit on account of the mistake of the Court. On the 8th October, 1968, this amount was deposited, and the delay in making the deposit of Rs. 40/- was condoned.

(2.) When the application dated 5th October, 1968, came for final disposal, it was dismissed by the order dated 14th July, 1969. This course was adopted by the learned Senior Subordinate Judge in view of his predecessor's order dated 24th October, 1968. That order reads thus :

(3.) It appears that the learned Senior Subordinate Judge in one breath nullified what was earlier done on the application of 5th October, 1968. The delay in making the deposit had been condoned and once the delay is condoned then there was a valid deposit and decree would be deemed to have been complied with. Therefore, there was no question of the suit for pre-emption being dismissed. The learned Judge did notice that a litigant cannot be penalised for the mistake of the Court. The entire mischief in this case arose because of the order of the Court when instead of an order for payment of Rs. 393/-, an order for payment of Rs. 353/- was passed. Therefore, the proper course for the learned Judge was to allow the plaintiff's application and not be influenced by the order dated 24th October, 1968, which order merely dismissed the application of the vendee to the effect that the plaintiff's suit be dismissed. The dismissal of the plaintiff's suit hinged on the question whether the plaintiff could be permitted to deposit Rs. 40/-. This, according to the learned Judge, he could be permitted to do. Thus, the Judge really contradicted himself in dismissing the application dated 5th October, 1968. This order cannot be sustained.