PETITIONER:
SULLEH SlNGH & ORS.
Vs.
RESPONDENT:
SOHAN LAL & ANR.
DATE OF JUDGMENT02/09/1975
BENCH:
RAY, A.N. (CJ)
BENCH:
RAY, A.N. (CJ)
MATHEW, KUTTYIL KURIEN
CHANDRACHUD, Y.V.
CITATION:
1975 AIR 1957 1976 SCR (1) 598
1975 SCC (2) 505
CITATOR INFO :
R 1989 SC2073 (12)
ACT:
Code of Civil Procedure, Act V of 1908, order 20, Rule
14-Pre-emption- Pre-emptor's suit, if stood dismissed on his
failure to deposit pre-emption price within the time fixed
by Trial Court.
HEADNOTE:
The vendors sold the suit land,to the appellants
(vendees) by a registered deed of sale for Rs. 43,000/-.
The' respondents filed the suit- for possession by pre-
emption of the land in payment of Rs. 30,000/- on the
allegations that the respondents were on the date of sale
tenants of the land under the vendors. I They also alleged
that the sale took place for Rs. 30,000/- only and the re-
maining amount was fictitiously mentioned in the deed of
sale. The suit was - ' dismissed on the ground that one suit
on behalf of the four plaintiffs who were tenants of
different parts of the land, was not maintainable. On appeal
the suit was remanded for re-trial. At the trial on remand,
two plaintiffs- withdrew from the suit. The trial court
directed the remaining two plaintiffs respondents Sohan Lal
and Nathi to deposit Rs. 6,300/_ and Rs. 5.670/-
respectively on or before 1 April, 1969 less 1/5th of the
pre-emption amount already deposited by them. The Trial
Court gave the respondent Sohan Lal a decree for possession
by pre-emption in respect of Killa Nos. 14/1 . 17 and 18/1
of Rectangle 37. The plaintiffs-respondents, aggrieved by
the order filed an appeal alleging that the decree should
have been Passed for the whole of the land because the
respondent Sohan Lal was also a tenant of Killa , -No. 24 of
Rectangle 37 under the vendors. On 29 July 1969. the
Additional District Judge passed a decree for possession by
pre-emption in favour of respondent Sohan Lal of Killa No.
24 of Rectangle 37 on payment of Rs. 9,100/- and he was also
directed to deposit this amount on or before 20 August,
1969. The decree in favour of Nathi was maintained without
charge. The appellants filed an appeal before the High Court
and it was contended before the High Court that respondents
did not deposit the decretal amount by l April, 1969 as
directed by the Trial Court and, therefore, the suit was
liable to be dismissed under order 20 Rule 14 of the Code of
Civil Procedure. The High Court accepted the appeal of the
appellants against the plaintiff Nathi and dismissed the
appeal against the plaintiff-respondent Sohan Lal. The High
Court said that since the lower appellate court granted
Sohan Lal decree for one more Killa and directed that the
amount would be Rs. 9,100/-. the respondent was to comply
with the appellate decree and not the decree of the Trial
Court.
Allowing the appeal by special leave,
^
HELD: (1) The directions given by the Trial Court are
mandatory under the provisions contained in order 20 Rule 14
of the Code of Civil Procedure. A decree in terms of order
20 Rule 14, imposes obligations on both sides and they are
so conditioned that performance by one is conditional on
performance bt the other. [600E-F, G].
Naguba Appa v. Namdey reported in A.I.R. l 954 S.C. 50
and Dattaraya S/o Keshav Tawalay v. Shaikh Ali and
Anr.[1969] 2 S.C.R. 514 relied on.
(ii) It is only if the plaintiffs-respondents had
obtained another order from the lower appellate Court
granting any order of stay that the lower appellate court
might have considered the passing of appropriate order in
favour of pre-emptors. The High Court should have allowed
the appellants' appeal and not made any distinction in
dismissing plaintiffs respondent Nathi's suit and allowing
Plaintiff-respondent Sohan Lal any extension of time to make
the payment. [601F-G]
599
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 496 of
1974.
Appeal by Special Leave from the Judgment and order
dated the 2nd May, 1973 of the Punjab and Haryana High Court
in R.S.A. No 1469 of 1969.
O. P. Sharma for the appellant.
R. N. Dikshit for Respondent No. 1.
The Judgment of the Court was delivered by
RAY, C.J.-This appeal is by special leave from the
judgment dated 2 May, 1973 of the Punjab and Haryana High
Court.
The appellants are venders of the land in suit. The
vendors sold the land to the appellants for Rs. 43,000/- on
26 August, 1965. The transaction was by registered deed of
sale.
The respondents filed this suit for possession by pre-
emption of the land in payment of Rs. 30,000/- on
allegations that the respondents were on the date of sale
tenants of the land under the vendors. The respondents
alleged that their right of pre-emotion was superior to that
of the vendees. They also alleged that the sale took place
for Rs. 30,000/- only and the remaining was fictitiously
mentioned in the deed of sale. The suit was dismissed on the
ground that one suit on behalf of the four plaintiffs, who
were tenants of different parts of the land, was not
maintainable.
On appeal the suit was remanded for re-trial.
At the trial on remand, two plaintiffs withdrew from
the suit. The trial court directed the remaining two
plaintiffs-respondents Sohan Lal and Nathi to deposit Rs.
6,300/- and Rs. 5,670,’- respectively on or before 1 April,
1969 less 1/5th of the pre-emotion amount already deposited
by them. The Trial Court gave the respondent Sohan Lal a
decree for possession by pre-emotion in respect of Killa
Nos. 14/1. 17 and 18/1 of Rectangle 37. The plaintiffs-
respondents aggrieved by the order. filed an appeal alleging
that the respondent Sohan Lal was a tenant of Killa No. 24
under the vendors and the decree should have been passed in
their favor for the whole of the land and that decree should
have been passed in favour of Sohan Lal in respect of Killa
No. 24 of Rectangle 37. The other ground in the appeal was
that the decree should have been passed in favour of the
plaintiffs-respondents for whole of the land.
The Additional District Judge on 29 July, 1969 passed a
decree for. possession by pre-emotion in favour of
respondent Sohan Lal on payment of Rs. 9,100- and he was
directed to deposit this amount in Court on or before 20
August, 1969. The Addition District Judge passed a decree
for possession by pre-emption in favour of respondent Sohan
Lal of Killa No. 24 of Rectangle 37. The decree in favour
the respondent Nathi was maintained without change.
Thereafter, the appellants preferred an appeal in the
High Court alleging that the decision that plaintiff-
respondent Sohan Lal was also a
600
tenant of Killa No. 24 was incorrect and should be set aside
and the decree of the Trial Court should be restored. The
appellants also prayed that the decree in favour of the two
plaintiffs-respondents Sohan Lal and Nathi were liable to be
set aside.
The appellants contended before the High Court that
respondents Sohan Lal and Nathi did not deposit the decretal
amount by 1 April, 1969 as directed by the Trial Court and,
therefore, the suit was liable to be dismissed under the
provisions contained in order 20 Rule 14 of the Code of
Civil Procedure.
The other contention of the appellants before the High
Court was that the plaintiff-respondent Sohan Lal should not
have been granted pre-emption rights in respect of Killa No.
24.
The High Court on 2 May, 1973 accepted the appeal of
the appellants against the plaintiff: Nathi and dismissed
the appeal against the plaintiff-respondent Sohan Lal. The
High Court said that since the lower appellate court granted
Mohan Lal decree for one more Killa and directed that the
amount would be Rs. 9,100/-, the respondent was to comply
with the appellate decree and not the decree of the Trial
Court.
The appellants contended that neither Sohan Lal nor
Nathi deposited the amount in accordance with the decree of
the Trial Court on or before l April, 1969 and the suit
should have been dismissed on that ground alone and the
appeal should have been allowed. The appellants contended
that the lower appellate court had no power and jurisdiction
to give further time to Sohan Lal to deposit the preemption
amount by an extended date. r.
This Court in Naguba Appa v. Namdev(1) held that the
directions given by the Trial Court are mandatory under the
provisions contained in order 20 Rule 14 of the Code of
Civil Procedure. This Court in Naguba Appa’s case (supra)
said that “mere filing of an appeal does not suspend the
decree of the Trial Court and unless that decree is altered
in any manner by the Court of Appeal, the pre-emptor is
bound to comply with that direction’`.
In Dattaraya s/o Keshav Tawalay v. Shaikh Mahboob
Shaikh Ali & Anr.(2) this Court said that a decree in terms
of order 20 Rule 14, imposes obligations on both sides and
they are so conditioned that performance by one is
conditional on performance by the other. To illustrate, if
the defendants by obtaining the stay order from the High
Court relieve themselves of the obligation to deliver
possession of the properties the plaintiff-decree-holder
must also be deemed thereby to be relieved of the necessity
of depositing the money so long as the stay order continues.
In the present case, the lower appellate court did not
grant any stay to the plaintiffs-respondents. In view of the
fact that the plaintiffs respondents did not deposit the
amount as directed by the Trial Court
(1) A.I.R. 1954 S.C. 50. (2) [1969] 2 S.C.R 514.
601
on or before 1 April, 1969, it became mandatory on the lower
appellate court by reason of the ruling of this Court in
Naguba Appa’s case (supra) to dismiss the suit. The
observations of this Court in Naguba Appa’s case (supra)
that the pre-emptor is bound to comply with the directions
of the Trial Judge unless that decree is altered in any
manner by a Court of Appeal do not mean that where the
deposit is not made in accordance with the directions of the
Trial Court, the appellate court can extend the time for
payment. Thereafter, the lower appellate court was in error
in extending the time for payment till 2 . August, 1969.
In Naguba Appa’s case the pre-emption money was not
deposited within the time fixed in the decree. The pre-
emptor made an application to the Court for making the
deposit without disclosing that the time fixed by the decree
had elapsed. The application was allowed The defendant, when
apprised of the situation, made an application to the Court
to the effect that the plaintiff’s suit stood dismissed on
account of his failure in making the deposit in time. The
Trial Judge held that the pre-emption money not having been
paid within the time fixed in the decree the suit stood
dismissed. On appeal the decision was set aside. On second
appeal it was restored and it was held that the suit stood
dismissed under order 20, Rule 14 Civil Procedure Code. An
appeal was preferred against the judgment of the High Court
this Court Held that the High Court was right in holding
that the pre-emptor’s suit stood dismissed by reason of his
default in not depositing the pre-emption price within the
time fixed in the Trial Court’s decree.
The contention of the appellants that the lower
appellate court was wrong in extending the time for payment
is correct because the failure of the plaintiffs-respondents
to deposit the amount in terms of the-Trial Court’s decree
would result in pre-emptor’s’ suit standing dismissed by
reason of their default in not depositing the pre-emption
price. The contention of the appellants that the High Court
was wrong in not setting aside the order of extension of
time passes by the lower appellate court is correct. It is
only if the plaintiffs-respondents had paid the decretal
amount within the time granted by the Trial Court or if the
plaintiffs-respondents had obtained another order from the
lower appellate Court granting any order of stay that the
lower appellate court might have considered the passing of
appropriate order in favour of pre-emptors. The High Court
should have allowed the appellant-s’ appeal and not made any
distinction in dismissing plaintiff-respondent Nathi’s suit
and allowing plaintiff-respondent Sohan Lal any extension of
time to make the payment. Further, it appears that the
plaintiff respondent Sohan Lal did not pay the amount.
For these reasons the appeal is accepted. Suit of the
plaintiffs respondents is-dismissed. The appellants are
entitled to costs.
V.M.K.Appeal allowed.
8-L925upCI/75
602