Sukhdev Singh etc. vs Phoola Singh

Gopal Singh, J.—This is second appeal by Sukhdev Singh Defendant against Phoola Singh and Puran Singh Plaintiffs from the order of Shri S.S. Dewan, 1st Additional District Judge, Ludhiana, dated October 31, 1970, allowing the appeal of the Plaintiffs filed from the order of Shri Harjit Singh, Sub-Judge 1st Class, Jagraon, dated April 11, 1969, rejecting the plaint. Facts giving rise to the appeal are as under:

The Plaintiff instituted suit on July 24, 1968, for recovery of possession by pre-emption of 103 kanals and 1 marla of land situate village Walipur Kalan against the Defendant. On the date of presentation of the plaint, the trial Court ordered that summons be issued to the Defendant for October 8, 1968 and directed the Plaintiff to furnish security within one week to the extent of 1/5th of the probable value of the agricultural land sought to be preempted. The Plaintiff furnished security on August 3, 1968, by filing surety bond executed by Sohan Singh in Court on that date. On that date, Sohan Singh and Basant Singh made statements to the effect that the surety had sufficient property to cover the amount of security required from the Plaintiff and the surety undertook to hold himself liable if the amount was sought to be recovered from him, in pursuance of the terms of the bond executed by him. The trial Court in token of the security being in order attested the same to be so. Order of attestation was also made by the Court on August 3, 1968. The Defendant was not served for October 8, 1968. The suit was adjourned for another attempt being made to effect service upon the Defendant. After service of the Defendant, the suit came up for hearing on January 8, 1969, the next date of hearing fixed. On that date, the Defendant filed written statement. No objection was taken by the Defendant either in the written statement or otherwise that the security had been furnished by the Plaintiff beyond the time fixed by the Court. The case was adjourned to January 17, 1969, for replication being filed by the Plaintiff. On that date replication was filed. Issues were struck and the case was adjourned for evidence of the parties to February 27, 1969. The evidence of the Plaintiff was recorded on that date. The Plaintiff closed his case. It was after the proceedings of the case were over on that date that there was presented to the Court an application on behalf of the Defendant saying that security furnished by the Plaintiff had been furnished three days later than the date provided in the order of the Court and consequently the plaint deserved to be rejected. Reply to that application was filed by the Plaintiff on March 13, 1969. The Plaintiff also made an application for extension of time on the ground that he was under the wrong impression that the security was to be furnished on or before October 8, 1968 and that it is on account of that misapprehension that he did not furnish the security within the date fixed by the Court. He also pleaded that as the order of the Court had not provided for specific date, by which the security could be furnished, the order was not proper.

On the above case of the parties, the trial Court took the view that the security had to be furnished by the Plaintiff within one week from the date of the order, i.e., on or before July 31, 1968 and not thereafter and that the same having been furnished three days after the date the order of the Court provided, the plaint was rejected. The lower appellate Court, however, came to the conclusion that the view taken by the trial Court was unwarranted inasmuch as the Plaintiff was misled and was under the wrong impression that the security could be furnished on or before October 8. 1968 and not within one week from the date of the order and that that being a bona fide error on the part of the Plaintiff, the case was fit one for condonation of delay.

Shri R.S. Amol appearing on behalf of the Appellant has contended that the view taken by the lower appellate Court is untenable, when the order of the Court in addition to fixing date of hearing in the suit as October 8, 1968, also specifically and separately directed that the security had to be furnished within one week.

There is nothing unlikely in the Plaintiff having been misled and having misunderstood, though under a bona fide mistake, the scope or implication of the order for filing of security. In his application, he has specifically stated that the Plaintiff took the order to mean that the security had to be deposited on or before the date fixed for appearance of the Defendant and striking of issues after he had filed the written statement on that date. In Section 22(1) of the Punjab Pre-emption Act, 1913, hereinafter called "the Act", it is provided that in a suit for pre-emption, the trial Court shall at, or at any time before, the settlement of issues, require the Plaintiff to deposit in Court such sum as does not, in the opinion of the Court exceed one-fifth of the probable value of the land or property, or require the Plaintiff to give security to the satisfaction of the Court for the payment, if required, of a sum not exceeding such probable value within such time as the Court may fix in such order. Under this statutory provision, there is nothing extraordinary in the trial Court having passed an order for security being furnished by the Plaintiff on any date on or before the settlement of issues. The date fixed for settlement of issues was October 8, 1968. According to the order, the suit was, soon after the presentation of the plaint, adjourned to that date for the issues being settled in case the service of the Defendant was effected. In the face of that statutory provision, the Plaintiff could be under the misapprehension that the security had to be deposited by that date. If there is existence of misapprehension in the mind of the Plaintiff that the security according to the order of the Court had to be furnished on or before the date fixed for settlement of issues in the discretion of the Court u/s 22(1) of the Act, it will not make any difference if the Court has also in the order apart from fixing the next date of hearing for settlement of issues directed that the security be furnished within one week from the date of the order. The lower appellate Court hag accepted the plea of the Plaintiff that the Plaintiff was under that misapprehension and consequently misunderstood the date, by which the security had to be furnished by him. The lower appellate Court is as much entitled to exercise discretion in fixing date for furnishing security by virtue of Sub-section (2) of Section 22 of the Act, as is the trial Court. The lower appellate Court having so exercised the discretion in favour of the Plaintiff on the facts and in the circumstances alleged by him, I do not think it is a fit case for interference with the exercise of discretionary power for condonation of delay.

The Plaintiff actually did furnish the security on August 3, 1968. There is delay of three days only. The Defendant was served for January 8, 1969. On that date, he filed written statement. He never took objection to the security having not been furnished by the Plaintiff within the time provided in the order of the Court. The case was adjourned to January 17, 1969 for the replication of the Plaintiff being filed. On that date, the replication was filed, issues were struck and the case was adjourned to February 27, 1969. Again, no objection was taken to the noncompliance by the Plaintiff with the order of the Court for security being furnished on or before July 31, 1968. The evidence of the Plaintiff was recorded on February 27, 1969. The Plaintiff closed his case and it is after the evidence of the Plaintiff was over and the case was adjourned to a subsequent date that the Defendant came forward with an application to the effect that security had not been furnished by the Plaintiff within the time stipulated by the Court in its order. This delayed raising of objection on the part of the Defendant preceded by acquienscence into insignificant lapse on the part of the Plaintiff to furnish security shows that the Defendant also did not attach much importance to the delay of three days, which had occurred on the part of the Plaintiff in furnishing the security. The Court itself after recording the statement of Sohan Singh surety and the statement of Basant Singh Sarpanch, identifying the surety and vouchsafing to the correctness of the facts alleged by Sohan Singh in the bond and in the statement made by him about the furnishing of security, attested the security to be in order. In other words, the Court, apart from accepting the security being in order has by necessary implication condoned the delay of three days which had occurred in filing security on behalf of the Plaintiff.

Considering that the lower appellate Court has exercised discretion in condoning delay of three days in the furnishing of security by the Plaintiff on justifiable grounds, I do not think it a fit case to interfere with the discretion exercised by that Court, ft is within the scope of power of the lower appellate Court as much as it is within the power of the trial Court to condone delay and the delay having been condoned in its discretion, the order sought to be appealed from could not be set aside in this appeal.

For the reasons recorded above, I dismiss the appeal and confirm the order of the lower appellate Court. There will, however, be no order as to costs.