CHET SINGH Vs. BIR SINGH

JUDGEMENT

(1.) This appeal arises out of a pre-emption suit filed some eight years ago. Ram Ditta sold occupancy rights of 20 big has 4 bis was of agricultural land in favour of Chet Singh Appellant for Rs. 2500/- by a registered deed dated 23rd Assauj, 2000. The vendee was the landlord of the land sold. The Respondent, a collateral of Ram Ditta in the fourth degree, brought a suit for possession of the land by preemption and presented it in the Court of Sub-Judge Jaito on 18th Assauj 2001. The Sub-Judge, on 5th Poh 2001, found that since the sale price was Rs. 2500/- the suit was beyond his pecuniary jurisdiction. He, therefore, order-ed the record to be sent to the Nazim, Phul, who had the jurisdiction, to proceed on with the case. The case was put before the Nazim on 20th Poh 2001; he ordered that the Sub-judge instead of sending the record to him, should have returned the plaint to the Plaintiff to be presented to the proper Court. On the record going back to the Sub-Judge, he, on 23-9-2001, ordered summonses to be issued to the Plaintiff to appear on 28-9-2001 and get back the plaint to the Plaintiff appeared on 28-9-2001 and got the plaint the same day. It may be mentioned; here that the Sub-Judge, Jaito had not directed the parties to appear before the Nazim on any particular date. The Nazim in his turn also did not fix any date for the parties to appear before the Sub-Judge. The order of the Nazim was not made in the presence of any of the parties. It was for this reason that the Sub-Judge, Jaito had to summon the Plaintiff. The plaint thereafter was presented in the Court of Nazim Phul - exercising the powers of a Sub-Judge, 1st Class, on 3rd Magh 2001 and was ' ordered to be placed before him on 5th Magh. The case then had its usual course and was finally decided by the Nazim on 27th of Har, 2003. He was of the opinion that the occupancy rights having been sold to the landlord, the Plaintiff had no preferential right of preemption. The suit was consequently dismissed. An appeal against this order, preferred to the District Judge, Nabha, was accepted on 11th Assam 2003 and it was held that the Plaintiff had a superior right to pre-empt the sale because the Punjab Pre-emption Act was not in force in Nabha State when the sale in question was effected. The case was remanded to the Sub-Judge for decision of the rest of the issues. About an year and a half after the Sub-Judge had got back the case, the Defendant took up an objection that the suit was barred by time. This necessitated an additional issue calling upon the Plaintiff to prove that his suit was within time. The issue was added on 11th Baisakh, 2005. It was decided by the Sub-Judge against the Plaintiff and the suit was consequently dismissed on 20th Har, 2005. The Plaintiff again went in appeal to the District Judge. The additional District Judge, Bhatinda by his order dated 14th har 2006 I accepted the appeal, held the suit to be within time and decreed it on payment of Rs. '1192/8/-. The vendee has now come in second appeal against this order of the District Judge. The Plaintiff also has preferred cross-objections that the amount payable to the vendee be reduced by Rs. 200/-.

(2.) Shri Dalip Chand, the learned Counsel for the Appellant, in the first instance contended that the time taken by the Plaintiff in prosecuting his case at Jaito could not be excluded under Section 14, Limitation Act. The argument is that the Plaintiff should have known that the Jaito Court had no jurisdiction to entertain and hear the suit and therefore, the Plaintiff had not acted diligently and in good faith in presenting and prosecuting it in that Court. The explanation for approaching a wrong Court given by the Plaintiff was that he had acted on the wrong advice of S. Gurbakhsh Singh, his counsel. Ruru Singh attorney . (MukhtariKhas) of the Plaintiff appeared as a witness and stated that he had consulted S. Gurbakhsh Singh and filed the suit at Jaito as advised by him. This explanation has been accepted by the learned Additional District Judge. It is/urged on behalf of the Appellant that the suit was filed on 18th Assauj 2001 by the Plaintiff himself and not through his attorney, and also that Sardar Gurbakhsh Singh was engaged by the Plaintiff sometimes after the plaint had been presented. The Vaka Jatnama of the counsel, which is on the record, is dated 27th Assauj, 2001, I find some force in the argument and do not feel convinced that it was due to the wrong advice of S. Gurbakhsh Singh that the suit was filed at Jaito. He is said to have been consulted by the. Attorney. who did not file the suit and the counsel also appears to have been engaged after the suit had been filed.

(3.) But that does not conclude the matter and would not be a ground to hold that the mistake was not a bona fide one. The mistake might have been due to the wrong notion of law of the Plaintiffff himself or probably the advice given to him by the petition-writer who scribed the plaint. There is yet Anr. aspect of the case and it is this. I am told by the learned Counsel for the Appellant the pecuniary jurisdiction of the Sub-Judge, Jaito extended up to Rs. 200/-. It may be mentioned here that the value for purposes of jurisdiction of the present suit counted at 30 times the land revenue, amounted to Rs. 189/6/- only. The suit, therefore, could very well be entertained by the Sub-Judge, Jaito, and in fact it should have been filed in his Court in the first instance. It is correct that he could not pass a decree on payment of an amount exceeding his pecuniary jurisdiction. But before that stage had reached, he was within his rights to entertain and proceed on with the suit. If and when he was of the opinion that a decree was to be passed on payment of an amount exceeding his pecuniary jurisdiction, he could have directed the Plaintiff to approach the Court having jurisdiction to pass a proper decree. This the Sub-Judge did on 5th of Poh 2001, and instead of directing the Plaintiff to get back the plaint and present it to the proper Court, he sent the record himself to the Nazim, Phul, to proceed on with the case. As already observed the Nazim, without fixing any date, sent it back to the Sub-Judge for returning the plaint to the Plaintiff. Since the Plaintiff could not know when the case was to be put up before the Nazim or as to when it came back to the Sub-Judge, he could not be expected to appear in either of the Courts on the dates when the case was taken up. On 23rd Poh he was summoned by the Sub-Judge to appear on 28th Poh 2001 and he (the Plaintiff) got back the plaint from the Court that very day. In view of these facts I am of the opinion that the Plaintiff must be held to have acted in good faith and to have diligently prosecuted the case. The mistake, if there was any, was surely a bona "fide one, and I do not see any reason why Section 14 should not apply to the case. The time that the case took in the Court of Sub-Judge, Jaito i.e. between 18th of Assauj 2001 to 28th of Poh 2001 must, therefore, be excluded.