NATHU Vs. JAGAN NATH

JUDGEMENT

(1.) BRIEFLY , the facts leading to this regular second appeal are that Nathu filed a suit for possession by redemption of the mortgaged land against Jagan Nath (now represented by his legal representatives) and others. By its judgment dated 14th December, 1970, the trial Court passed a preliminary decree, directing Nathu:

(2.) IT may be mentioned at the outset that Learned Counsel for the parties and of Nathu Appellant in particular cited numerous rulings having a bearing on the provisions of Order 7, Rule 11 of the Code of Civil Procedure Admittedly, none of them was shown to be applicable to the peculiar facts of this case.

(3.) BEFORE the lower appellate Court, the emphasis was laid on the first direction given in the preliminary decree that if the deficiency of the Court -fee was not made good on or before 28th February, 1971, the plaint shall be deemed to have been rejected. Since the direction was not strictly complied with and there was delay of two days in the payment of Court -fee, the lower appellate Court felt that the rejection of the plaint was automatic. Thereafter, the trial Court was not seized of the case and it had no jurisdiction to condone the delay. Quite to the contrary, their Lordships of the Supreme Court in Shri Jogdhayan v. Babu Ram and Ors. Civil Appeal No. 94 of 1972, decided on 23rd November, 1982 have adversely commented upon the Courts, craze for technicalities of law at the cost of justice". That was a case of short deposit of 25 paise in the payment of purchase money within the specified time. On behalf of the vendee -judgment debtor, emphasis was laid on the rigors of Order 20, Rule 14, Code of Civil Procedure, which lays down that "if the purchase money and the costs, if any, are not so paid, the suit shall be dismissed with costs." While interpreting Section 148 of the Code, their Lordships held that discretionary power was given for the purpose of securing the ends of justice in case of necessity and that the Court concerned committed error in not adverting to it. Applying the ratio of this authority to the facts of the present case, I have no hesitation in finding that the lower appellate Court erred in interfering with, the discretion exercised by the trial Court.