SUKHDEV SINGH ETC. Vs. PHOOLA SINGH

JUDGEMENT

(1.) THIS is second appeal by Sukhdev Singh Defendant against Phoola Singh and Puran Singh Plaintiffs from the order of Shri S.S. Dewan, 1st Additional District Judge, Ludhiana, dated October 31, 1970, allowing the appeal of the Plaintiffs filed from the order of Shri Harjit Singh, Sub -Judge 1st Class, Jagraon, dated April 11, 1969, rejecting the plaint. Facts giving rise to the appeal are as under:

(2.) THE Plaintiff instituted suit on July 24, 1968, for recovery of possession by pre -emption of 103 kanals and 1 marla of land situate village Walipur Kalan against the Defendant. On the date of presentation of the plaint, the trial Court ordered that summons be issued to the Defendant for October 8, 1968 and directed the Plaintiff to furnish security within one week to the extent of 1/5th of the probable value of the agricultural land sought to be preempted. The Plaintiff furnished security on August 3, 1968, by filing surety bond executed by Sohan Singh in Court on that date. On that date, Sohan Singh and Basant Singh made statements to the effect that the surety had sufficient property to cover the amount of security required from the Plaintiff and the surety undertook to hold himself liable if the amount was sought to be recovered from him, in pursuance of the terms of the bond executed by him. The trial Court in token of the security being in order attested the same to be so. Order of attestation was also made by the Court on August 3, 1968. The Defendant was not served for October 8, 1968. The suit was adjourned for another attempt being made to effect service upon the Defendant. After service of the Defendant, the suit came up for hearing on January 8, 1969, the next date of hearing fixed. On that date, the Defendant filed written statement. No objection was taken by the Defendant either in the written statement or otherwise that the security had been furnished by the Plaintiff beyond the time fixed by the Court. The case was adjourned to January 17, 1969, for replication being filed by the Plaintiff. On that date replication was filed. Issues were struck and the case was adjourned for evidence of the parties to February 27, 1969. The evidence of the Plaintiff was recorded on that date. The Plaintiff closed his case. It was after the proceedings of the case were over on that date that there was presented to the Court an application on behalf of the Defendant saying that security furnished by the Plaintiff had been furnished three days later than the date provided in the order of the Court and consequently the plaint deserved to be rejected. Reply to that application was filed by the Plaintiff on March 13, 1969. The Plaintiff also made an application for extension of time on the ground that he was under the wrong impression that the security was to be furnished on or before October 8, 1968 and that it is on account of that misapprehension that he did not furnish the security within the date fixed by the Court. He also pleaded that as the order of the Court had not provided for specific date, by which the security could be furnished, the order was not proper.

(3.) SHRI R.S. Amol appearing on behalf of the Appellant has contended that the view taken by the lower appellate Court is untenable, when the order of the Court in addition to fixing date of hearing in the suit as October 8, 1968, also specifically and separately directed that the security had to be furnished within one week.