AHSAN GANAI Vs. GUFFAR DOOM

JUDGEMENT

(1.) THE respondent instituted a suit to pre -empt the sale of the suit property to the petitioner. Issues, were duly settled and the plaintiff adduced part of his evidence in the case. While so, the defendant applied to the trial court for calling upon the plaintiff to deposit l/5th of the probable value of the suit property or furnish security in respect of such probable value. The application expressly invoked the provisions of sub -s. (1) of S. 21 of the Right of Prior Purchase Act. The trial court dismissed the application on the ground that the court had no jurisdiction after the settlement of issues in the suit to ask the plaintiff to make a deposit or furnish security under S. 21(1). The aggrieved defendant has come up to this Court in revision challenging the validity of the order passed by the trial court.

(2.) IT is convenient at the outset to read the relevant provisions of S. 21.

(3.) THE learned counsel for the petitioner defendant has urged that he is entitled to move the Court to require the plaintiff to act according to the provisions of Section 21(1) when the Court had failed in its duty to call upon the plaintiff earlier to do so. It is also argued that injury caused to the defendant on account of the omission of the court to comply with the mandatory requirements of Section 21(1) can and must be remedied by the court itself and that the court has authority and ample jurisdiction to do so. On the other hand the learned counsel for . the plaintiff -respondent has vigorously contended that the operation of S. 21(1) is expressly limited by the words "at, or at any time before the time of settlement of issues", and that the court has therefore no jurisdiction to require of the plaintiff compliance with the provisions of the section after the expiry of the time prescribed in the section itself. He also points out that section 21 does not at all confer any right on the defendant to apply to the court to require the plaintiff to deposit a sum of money or to furnish security. The section confers power only on the court and the defendant is given no right under it. We have to see which of these rival contentions is entitled to succeed.