UMRAO SINGH Vs. DHARMA

JUDGEMENT

(1.) These are two Second appeals. They are S.A.O. Nos. 17 and 18 of 1971. These appeals have been filed from the judgments of Shri P.L.Sanghi, Senior sub-Judge, Rohtak exercising enhanced appellate powers dated January 2, 1971 allowing appeals from the judgments of Shri T.P. Garg, sub-Judge, Rohtak dated November 7, 1969 rejecting the plaints. The facts in both the appeals are identical and involve common questions. Facts to S.A.O. No. 17 of 1971 are as follows.

(2.) On July 31, 1969, Dharma plaintiff filed a suit for possession by pre-emption of 1/5th of agricultural land measuring 10 kanals and 5 marlas situate in village Kharkhera. The suit was a filed against Umrao Singh defendant No. 1 and Dalip Singh defendant No. 2, vendees of the land in dispute. Inderjit Singh vendor was impleaded as defendant No. 3. On August 30, 1969, the trial Court passed an order under Section 22(1) of the Punjab Pre-emption Act, 1913 , hereinafter called the Act that the plaintiff should deposit Rs. 300/ as 1/5th of the sale price on or before October 17, 1969. On November 3, 1969, the plaintiff filed an application that permission to deposit the sum of Rs. 300 be granted. On November 4, 1969, the trial Court rejected the application holding that the date, by which the amount had to be deposited had already expired and consequently the permission prayed for could not be granted. On November 7, 1969, when the suit came up for hearing, the trial Court rejected the plaint under Section 22(4) of the Act. On January 14, 1970, the plaintiff filed an appeal against the order of rejection of the plaint with the Senior sub-Judge, Rohtak exercising enhanced appellate powers. The memorandum of appeal was accompanied by a certified copy of the order of the trial Court rejecting the plaint. Court-fee of Rs. 1.25 was affixed on the certified copy. When the appeal came up for hearing on January 2, 1971, an objection was raised on behalf of the vendees-defendants that the copy of the order, which should be deemed to be a decree was insufficiently stamped inasmuch as Court-fee required to be affixed should have been of Rs. 2.65 and not of Rs. 1.25. On that very day, soon after the objection was raised, there was made an application of Court-fee of Rs. 1.40 be allowed and the delay in filing the appeal be condoned. The Court granted the permission solicited for and the deficiency of the Court-fee of Rs. 1.40 be allowed and the delay in filing the appeal be condoned. The Court granted the permission solicited for and the deficiency of the Court was made up on that very day. The lower Appellate Court also set aside order of the trial Court rejecting the plaint for non-deposit of Rs. 300 and directed that the amount be deposited on or before January 27, 1971. It is against the decision of the lower Appellate Court that the present appeals are directed.

(3.) Shri S.C. Kapoor appearing on behalf of the appellant has raised the following points :-