RAM PARTAP Vs. TULSA

JUDGEMENT

(1.) This is defendant's revision petition impugning the order of the trial Court whereby plaintiff-respondent has been permitted to file second suit for pre-emption on the same cause of action. The facts which gave rise to the revision petition are as under :

(2.) In my view trial Court committed an error in exercise of its jurisdiction in permitting the plaintiff-pre-emptor to file a second suit on the same cause of action. In the earlier suit filed by the plaintiff pre-emptor, the plaint was ordered to be rejected as he had failed to pay 1/5th of the pre-emption money within the time fixed. The plaint was rejected in terms of provisions of Section 22(4) of the Act. Trial Court proceeded with the matter as if the plaint had been ordered to be rejected under Order 7 rule 11 of the Code of Civil Procedure (hereinafter referred to as the Code) and that the plaintiff-pre-emptor was within his right to file second suit on the same cause of action, under Order 7 rule 13 of the Code. It has been repeatedly held by the Supreme Court that right of pre-emption is a piratical right and in my view, a pre-emptor cannot be given repeated chances to pre-empt the sale. Section 22(4) of the Act enjoins upon the Court to reject the plaint if the pre-emptor fails to deposit 1/5th of the pre-emption money. Pre-emptor has to step into the shoes of the vendee and this right was based on the plea that a pre-emptor has, a prior right of sale in his favour as compared to the vendee. Legislature further provided that willingness to purchase the property by the pre-emptor had to be backed with the capacity to buy the property and that is why it was provided that a pre-emptor should deposit 1/5th of the pre-emption money at the time of filing of the suit failing which his plaint was liable to be rejected. In the present case, plaintiff failed to deposit 1/5th of the pre-emption money and his plaint was ordered to be rejected. Under the Pre-emption Act, no second right, as has been given under Order 7 rule 11 of the Code for filing a second suit on the same cause of action in case the plaint has been rejected, has been provided. There is no parallel case on the point but I draw my support from various other decisions of this Court wherein it has been repeatedly held that extension of time for the deposit of 1/5th of the pre-emption money can only be granted for the reasons which are beyond the control of the pre-emptor. Reference in this regard may be made to Lilu v. Gokal Chand, 1977 PunLJ 386, Ram Saran Dass v. Gurmukh Ram, 1971 1 ILR(P&H) 177 and Niraj Jam v. Dhan Vanti alias Dhan Devi and others, 1991 PunLJ 139. In the case of Niraj Jain this Court set aside the order of the trial Court whereby the trial Court had permitted the pre-emptor to withdraw his suit with liberty to file a fresh suit on the same course of action and held that if extension of time cannot be granted to the pre-emptor for deposit of the pre-emption money then he cannot be permitted to withdraw the suit with liberty to file a fresh suit on the same cause of action until and unless there were some compelling reasons to do so which were beyond the control of the pre-emptor.

(3.) In this particular case, the plaint filed by the plaintiff in the earlier suit was ordered to be rejected under Section 22(4) of the Act because the pre-emptor failed to deposit 1/5th of the pre-emption money. If extension of time cannot be given to a pre-emptor for depositing 1/5th of the pre- emotion money then sure enough, he cannot be given the right to file a fresh suit on the same cause of action when in the earlier suit, his plaint was ordered to be rejected on the ground that he failed to deposit 1/5th of the pre-emption money. If the plaintiff-pre-emptor could not be given the right to withdraw the suit on the same cause of action in Niraj Jain's case with liberty to file a fresh suit on the same cause of action then second suit on the same cause of action where the earlier suit had been rejected because the plaintiff failed to deposit 1/5th of the pre-emption money cannot be permitted to file a fresh suit on the same cause of action.