MANGE RAM Vs. LAKHMI CHAND

JUDGEMENT

(1.) Murti sold his share in the joint land to Lakhmi Chand by sale deed dated 28.4.1982 for Rs. 30,000/-. Mange Ram, father's brother of the vendor (wrongly mentioned as brother's son of the vendor by the lower appellate Court), sought pre-emption of the sale on account of relationship. He pleaded that the actual sale consideration was Rs. 21,000/- and he should be allowed to pre-empt on payment of Rs. 21,000/-. The trial Court by judgment and decree dated 22.12.1984 found that the pre-emptor was vendor's father's brother and had superior right of pre-emption. It was held that Rs. 30,000/- were actually paid and, therefore, directed the pre-emptor to deposit Rs. 30,000/- along with stamp and registration charges on or before 22nd January, 1985, failing which the suit was to stand dismissed.

(2.) Against the aforesaid decree the vendee did not file any appeal. On the contrary the pre-emptor filed appeal for a limited relief that he should be allowed to pre-empt on payment of Rs. 21,000/- instead of Rs. 30,000/-. On appeal he affixed court-fee of Rs. 13/- instead of ad valorem court-fee on the difference between Rs. 30,000/- and Rs. 21,000/-. Without noticing the defect in the maintainability of appeal, the District Court issued notice of the appeal to the vendee and on receipt of notice, he filed cross-objections to challenge the pre-emption decree granted by the trial Court.

(3.) When the appeal came up for hearing, it was noticed that for want of payment of proper court-fee on appeal, the same was not properly constituted and deserved to be rejected on that ground and a prayer to this effect was made by the counsel for the pre-emptor for rejecting his appeal as incompetent and as a necessary corollary sought dismissal of the cross-objections as not maintainable. The counsel for the vendee did not dispute the defect in the maintainability of the appeal but pleaded that the pre-emptor cannot take benefit of his own wrong so as to seek dismissal of the cross-objections as incompetent and prayed that the cross-objections should be decided on merits. The lower appellate Court found favour with the argument of the counsel for the vendee and held that in view of M/s. Kantilal & Bros. V. Ramarani Debi, 1979 AIR(Cal) 152 the cross-objections could be decided on merits and the pre-emptor could not be allowed to take benefit of his own wrong and also took the view that he could mould the relief under Order 41 Rule 33 of the Civil Procedure Code (for short 'the Code'), in view of Panna Lal V. State of Bombay, 1963 AIR(SC) 1516 even if the cross-objections had not been filed. On merits of the cross-objections, the Court relied on Atam Parkash V. State of Haryana, 1986 AIR(SC) 859 and held that since the right of pre-emption on the ground of relationship has been declared void the pre-emption decree could not be allowed to stand and was set aside and the suit for pre-emption was dismissed. This is second appeal by the pre-emptor.