ROOKMANI Vs. BAHADUR SINGH AND ORS.

JUDGEMENT

(1.) Shrimati Rookmani a minor through her mother as next friend, has filed this second appeal against the decision dated 12th November, 1968 of the District Judge, Simla, whereby her plaint for a suit of pre -emption preferred on her behalf against Bahadur Singh and two others, has been rejected.

(2.) The facts of the case arc, that on behalf of Rookmani minor her mother Tulsa filed a suit for pre -emption which related to a sale effected by Devi Singh, minor's father, in favour of Bahadur Singh and Mohar Singh for 3 bighas, 10 biswas of land situate in village Korga and the sale consideration was Rs. 2,400. After the suit was filed on 4th March, 1968, the learned Sub -Judge made an order under Sec. 22(4) of the Punjab Pre -emption Act, 1913 and directed the Plaintiff to deposit 1/5th of the value of the land upto or before 4th April, 1968. It so happened that the Sub -Judge was transferred sometimes before 4th April, 1968 and the Court remained without a presiding officer. The reader of the Court, however, on 4th April, 1968 passed an order that the case was to come up for orders on 6th May, 1968. On this date a presiding officer was available for the Court. It was ordered by the Court that the Defendant No. 3 who was till then absent should be served and process -fee be filed by the Plaintiff and that written statements and replications should be filed. The Court directed the case to be put up on 30th May, 1968. It would be interesting to note that on 6th May, 1968 an application was moved on behalf of the Plaintiff that her guardian could not make the deposit upto 4th April, 1968 because no presiding officer was available and that the Plaintiff should be given time to make such deposit up to 30th May, 1968. It was mentioned in that application that the time was solicited upto 30th May, 1968 because the Court had fixed that date for further orders in the case. It is, therefore, obvious that this application was moved after the Court had already written the order dated 6th May, 1968 and had fixed the next date as 30th May, 1968. On the back of this application, the learned Senior Sub -Judge ordered that the petition "be put up with the file concerned". I cannot exactly understand what the learned Senior Sub -Judge meant by that order. Did he mean that the application was to be put up with the file immediately, or that the application was to be put up with the file on the date fixed in the case, i.e., on 30th May, 1968? At any rate, no order was made on this application upto 30th May, 1968. When the case was put up before the learned Senior Sub -Judge on 30th May, 1968, he considered the pleadings of the parties and framed issues. It is again to be understood that under Sec. 22(4) of the Act, the deposit could be made in the Court only on a date before the settlement of the issues. Therefore, the learned Senior Sub -Judge should have cared to make an order on the application of the Plaintiff dated 6th May, 1968. Instead he proceeded to frame the issues and perhaps forgot to make any order on that application. After the learned Senior Sub -Judge framed issues and fixed 28th June, 1968 as the next date in the case, his attention was drawn to the so called default committed by the Plaintiff, in depositing the amount under Sec. 22(4) of the Punjab Pre -emption Act, 1913. Immediately the learned trial Judge considered the objection and holding that the Plaintiff' had committed a default in depositing the amount, dismissed the suit on the very same day, i.e., on 30th May, 1968. The order of the learned Senior Sub -Judge dismissing the suit was prima facie incorrect because he could only reject the plaint under Clause (4) of Sec. 22 of the Punjab Pre -emption Act, 1913.

(3.) The Plaintiff came up in appeal before the learned District Judge, Simla, and he too considered that the Plaintiff had committed a default and could not be excused and that the plaint was rightly rejected by the learned trial Judge. According to the learned District Judge, there was ample opportunity with the Plaintiff to have made the deposit upto 30th May, 1968 and that the order of the learned trial Judge indicated that the Plaintiff's guardian was not prepared even on 30th May, 1968 to make the deposit. In the circumstances, according to the learned District Judge, no ground was made out in favour of the Plaintiff and he held that the plaint was rightly rejected.