FATIMA BIBI Vs. ALI MOHD

JUDGEMENT

(1.) THIS case raises an important question of law relating to the exact scope and interpretation of Section 21 of the J&K Right or Prior Purchase Act and has therefore been referred to us by Baha -ud -din J.

(2.) BRIEFLY speaking the facts that have given rise to this revision are that Fatima Bibi the plaintiff petitioner has brought a suit for possesion in exercise of her right of prior purchase in respect of a plot of land in the court of Sub -Judge, Sopore. In the plaint she averred that only a sum of Rs. 1,00,000.00 was actually paid as consideration of sale as against Rs. 1,50,000.00 as shown in the instrument of sale. The trial court in pursuance of Section 21 of the Right of Prior Purchase Act called upon the plaintiff to deposit in the court l/5th of the amount of consideration,as mentioned in the sale deed. This order was passed on 15th of March, 1972. Later on the plaintiff made an application that she be allowed to give security instead or depositing the amount in the court. The learned Sub -Judge by his order dated 3 -5 -1973 dismissed the application on the ground that no reason whatsoever were assigned by the plaintiff to give the security instead of depositing the money in the court. Aggrieved by this order, she has filed the revision petition before this court. Appearing for the petitioner Mr. A. K. Malik has submitted that the court below has erred in rejecting outright the application of the plaintiff and in. refusing to allow her to give security instead of depositing the money in the court. It is argued that Section 21 of the Jammu and Kashmir Right of Prior Purchase Act gives power to the court to order the plaintiff either to deposit l/5th of the probable value of the property in dispute or call upon the plaintiff to give security. The plaintiff has been given the choice to do either of the two. The court below should have, therefore, acceded to the request made by the petitioner and should have allowed her application. It is further submitted that before making an order under Section 21 the court should determine the probable value of the property in dispute and then require the plaintiff to deposit l/5th of it or give security. In the present case no such procedure was followed and the learned Judge has ordered the plaintiff to deposit l/5th of the consideration amount as shown in the sale deed in violation of the direction given in the Section. But we are not called upon to consider this aspect of the matter in view of the concession made by the learned counsel for the respondents that he would not insist on the plaintiff to deposit l/5th of Rs. 1,50,000.00 but she could deposit only Rs. 20,000.00 i.e. 1/5th of Rs. 1,00,000.00 a figure which is not disputed by the petitioner.

(3.) THE principal question that falls for consideration is as to in what cases should the court ask the plaintiff to deposit l/5th of the probable value of the property in dispute and in what cases should the court direct the plaintiff to give security instead of depositing the money in the court ? Is it left to the unguided discretion of the court to make either of the orders as it chooses? According to the argument of the learned counsel for the petitioner it should be left to the plaintiff to decide as to whether he or she should deposit the money in the court or give security. The court may pass a composite order calling upon the plaintiff to deposit money in the court or give security. But in our opinion this cannot be so. Section 21 requires, the plaintiff to deposit l/5th of the probable value of the property in dispute or give security. The language of the Section makes it clear that first of all the court -will require the plaintiff to deposit the amount in the court. Then follows the later provision that it may require the plaintiff to give security instead of depositing the amount in the court. It is clear that the court cannot pass a composite order leaving it to the option of the plaintiff to do either of the two. Nor can it be said that it, has been left to the unguided discretion of the Court to order as it pleases. The section is to be interpreted in a harmonious and rational way. It has been engrafted with a view to discourage frivolous and vexatious litigations by testing the financial capacity of the pre -emptor to claim the property. Right to pre -empt being a week right it can be defeated by the vendee by all legitimate ways. To call upon the plaintiff pre -emptor to deposit l/5th of the consideration money is aimed at on the one hand putting the bonafides of his claim to test; and on the other protecting the rights of the vendee. Non deposit of l/5th amount will entail the dismissal of the suit. If therefore the section also gives power to the court to require the plaintiff to give security instead of depositing the amount it is to be exercised sparingly to meet certain contingencies; may be that in a particular case the money of the plaintiff is locked in fixed deposit or that he cannot lay his hands immediately on cash because of some bonafide difficulty in his way. It is in such cases that the court may require the plaintiff to give security instead of asking him to deposit cash in the court. But while making such an application by trip plaintiff and while moving the court for this purpose the plaintiff has to, assign some good reason for this. The court will thereupon exercise its discretion judicially.