GIAN SINGH AND ANOTHER Vs. GOPAL DASS

JUDGEMENT

(1.) THIS second appeal is directed against the order dated the 6th of July, 1968, of Shri Kartar Singh, District Judge, Kapurthala, accepting the appeal of the plaintiff -respondent whose plaint in a suit for pre -emption had been rejected by the trial Court on the 22nd of May, 1967, for the reason that he had not deposited one -fifth of the sale price on or before the 21st of May, 1967, as directed by that Court, and restoring the suit to the file of that Court for further proceedings.

(2.) IT was by its order dated the 15th of April, 1967, that the trial Court directed the respondent to make a deposit of Rs. 1192/ -, being one -fifth of the sale price, "before 22nd May, 1967". The case was taken up on that date when an application was made on behalf of the respondent praying for extension of time granted for the deposit on the ground that he was lying admitted as an indoor patient in an Amritsar hospital. The application was accompanied by a letter purporting to have been written by the respondent to his counsel and stating that he was unable to move on account of illness which had been afflicting him since the 8th of May, 1967, a medical out -patient ticket purporting to have been issued by the Causality Medical officer of the V.J. Hospital, Amritsar on the 21st of May, 1967, in relation to the respondent who was described as suffering from gastro -enteritis and a certificate purporting to have been issued by Dr. Sudarshan Chakra of Amritsar on the 19th of May, 1967, to the effect that the respondent was suffering from gastro -enteritis and had been advised rest in bad for 4/5 days. No affidavit in support of the application was produced. The learned Subordinate Judge passed the following order on the same day with regard to the application:

(3.) IT has been contended on behalf of the appellants that the learned District Judge was in error in assuming that the certificates produced by the respondent indicated that he had been admitted to the V.J. Hospital, Amritsar and that his finding about the respondent having set up a genuine case with regard to his illness, etc., must be reversed. With this contention I fully agree for the simple reason that the medical out -patient ticket produced before the learned Subordinate Judge has obviously been misconstrued as stating that the respondent had been admitted to the hospital. Really the certificate states no more than that the respondent was suffering from gastro -enteritis, that he had been examined as an out -patient (and not as an indoor patient) and that certain medicines were prescribed for him. And if this be so, the main reason for the finding of the learned District Judge in this behalf fails. However, I need not go any further into this aspect of the matter as I am of the opinion that the other ground on which the learned District Judge accepted the appeal instituted by the respondent is unassailable. According to the order of the learned Subordinate Judge, the respondent had to make the deposit before 22nd May, 1967", i.e. on the 21st of May, 1967, at the latest. The date last mentioned was a Sunday and obviously no deposit could be made on that date. In such a situation I am of the opinion that the respondent would have been within his rights to make the deposit on the next working day which was the 22nd of May, 1967. This opinion is based on the well recognised principle of law that the Act of Court shall prejudice no party and finds support in Fateh Khan v. Chhajju : A.I.R. 1931 Lah. 386, which was a case relating to a deposit to be made under a decree for pre -emption and in which the last date covered by the period allowed to the plaintiff in that behalf was a court holiday. In overruling the contention that in cases in which it was possible for a party to perform an act at an earlier period, it should not be open to him to wait till the closing days or till the last day of the period and if the last day or days happened to be holidays, he could take no advantage of that circumstance, Jai Lal and Abdul Qadir, JJ. observed: