BY THE COURT:
This appeal is of the year 2001 and has not yet been admitted. Learned counsel for both the parties requested the court to dispose of this appeal finally at this stage, therefore, in the interest of justice, I do not deem it proper to admit the appeal and on the request of the learned counsel for both the parties, the matter has been taken up for final hearing.
The present civil second appeal under section 100 read with Order 41 Rule 1 and 2 of the Code of Civil Procedure has been filed against the judgment and decree dated 1st April, 2000 passed by the Additional District Judge No. 2, Ajmer in Civil Appeal No. 44/1992 confirming the judgment and dcree dated 15th May, 1986 passed by the learned Munisff, First Class, Amer in Civil Suit No. 277/1977 whereby the suit of the plaintiff for pre-emption was decreed but has been held to be dismissed under Order 20 Rule 14 CPC.
Briefly stated, the facts for the disposal of the second appeal are that the plaintiff-appellants filed a suit for declaration and pre-emption of the disputed property, description of which has been given in para 1 of the plaint. The disputed house is situated in Mohalla Badi Basti, Pushkar wherein the plaintiff-appellants had purchased some of the properties under a registered sale-deeds. On one occasion, the appellants under a registered sale-deed dated 28.3.1967 purchased some portion of the disputed house from Haridas and other portions by another sale-deed dated 25.4.1967 from Durga Shanker @ Rais Bhagwan and thereafter plaintiff-appellants became owner of the suit property. It was also averred in the plaint that some portions of the property were common like staircase, paul, chowk etc. It is alleged that defendant no. 2 Shanker Lal (since deceased) vide registered sale-deed dated 20.6.1970 sold some of the portions for a sale consideration of Rs. 1,000/- effecting the right of pre-emption of plaintiff-appellants. It was further averred that it was the duty of the defendant no. 2 to have informed to the plaintiff-appellants of his intention to dispose of the portion of the disputed property and an offer was required to be given to the plaintiffs as the vendor had illegally sold some portion of the property to defendant no. 1, therefore, the sale-deed was in-effective and in-operative against the plaintiff-appellants and the same was liable to be cancelled. A prayer was made to decree the suit for cancellation of the sale-deed, damages etc. and to protect the right of pre-emption on the ground of Section 6(1)(ii) of the Rajasthan Pre-emption Act (to be referred in short as, ‘the Preemption Act’).
Defendant no. 1 filed written statement and denied the contents of the plaint. It was averred that on a proper market value the property was purchased and the plaintiff had knowledge about the sale. A prayer was made to dismiss the suit.
Defendant no. 2 remained absent, therefore, exparte proceedings were initiated against him.
On the basis of pleadings of the parties, 14 issues were framed. Both the sides adduced evidence. The learned trial court after hearing final submissions of both sides, decreed the suit vide judgment dated 15.5.1986 The learned trial court while decreeing the suit recorded its finding on issue nos. 1 to 5, 7 to 12 and 14 in favour of plaintiff-appellants and issue nos. 6 and 13 in favour of the defendants. The trial court while decreeing the suit ordered that since the defendant no. 1 has incurred expenses on repair and construction to the tune of Rs. 2046.25 and disputed amount of sale was Rs. 1,099/-, which comes to Rs. 3145.25, therefore, the plaintiff was required to deposit a sum of Rs. 3145.25 latest by 10.7.1986, failing which the suit was liable to be dismissed.
The plaintiff-appellants did not deposit the amount as per direction given by the court in its decree and preferred appeal, therefore, the finding of the learned appellate court that in the given time plaintiff-appellants failed to pay/deposit the amount determined by the trial court, they lost the right to file appeal and up-held the judgment and decree passed by the trial court vide judgment and decree dated 1.4.2000 Hence, the present second appeal has been filed.
I have heard learned counsel for the parties and carefully perused the material available on record.
It has been the contention of the learned counsel for the appellants that the appellants applied on 20.5.1986 for certified copy of the judgment delivered on 15.5.1986 and copy was made available to him on 24.7.1986 Thereafter, the appeal was preferred on 12.8.1986 According to the learned counsel, he also moved an application before the trial court for extension of time for depositing the amount but the same was dismissed on 4.2.1988 It is also contended that in the appellant after some time deposited the amount also but that was deposited after filing the appeal and expiry of the period allowed to him for depositing the amount by the trial court. It is also contended that when the judgment and decree is challenged, it is challenged as a whole, the appeal is a continuation of the suit and the appellate court has all the powers to set-aside, remand and alter the judgment and decree. According to the learned counsel, since the suit was decreed, therefore, it is too harsh to deprive the appellant from the fruits of the decree.
On the other hand, learned counsel for the respondents submits that since the plaintiff did not prefer any appeal before expiry of time provided for depositing the amount determined by the trial court and from the appellate court no stay was obtained, therefore, merely filing of appeal, execution of decree does not get suspended. It is contended that in a suit for pre-emption the direction given by the courts are required to be complied with and any default made in such matters results into dismissal of the suit itself which can neither be rectified nor restored. It is contended that once the right of appeal is lost in view of the provisions of Order 20 Rule 14 CPC and under the provisions of Pre-emption Act, the appellants cannot claim that they have a right to prefer appeal or their appeal was liable to be accepted and the appellate court has committed illegality.
I have considered the submissions made before me.
In the present matter, following points require consideration:
(i) Whether non-deposition of purchase money or amount in a suit for pre-emption leading to the dismissal of the suit, the appeal could be dismissed holding as non-maintainable?
(ii) Whether the appellate court committed illegality in not extending the time allowed by the trial court to the appellant to deposit the purchase money/amount in the court?
(iii) Whether the judgment and decree passed by the appellate court is liable to be set aside in view of the fact that the appellants at a later stage deposited the amount?
Before deciding the above questions framed by me, it is proper at this stage to examine the law which has developed in relation to such matters.
In the case of Imam Din Khan v. Abdul Sattar Khan-AIR 1924 Oudh 102, the facts were that plaintiffs filed suit for pre-emption of certain property was decreed by the trial court. It was ordered by the trial court that the plaintiff was required to make payment of Rs. 18,130/- to the defendants within three months. This judgment was delivered on 4.4.1922 and no payment was made as directed by the court and an appeal was preferred on 7.7.1922 by the plaintiff objecting the amount determined by the trial court and direction given to deposit the same. An argument was raised before the Hon'ble Oudh High Court that since plaintiff failed to deposit in court or to payto the defendants the amount of sale consideration fixed by the first court on or before 4.7.1922, therefore, the appellant lost the right of pre-emption. It was observed that even if the lower court had power to extend the time for payment under section 148 CPC, the plaintiffs' right to pre-empt would not be saved, because, according to the provisions of S.15, it was lost on 5.7.1922 It has further been observed that when the appellant preferred the appeal, they had no right to pre-empt the property in suit and so no appeal lay at the time from the decree of the lower court. The Hon'ble Oudh High Court finding that when there is no decree in existence and the plaintiff has no existing right of pre-emptiion, therefore, the appeal was incompetent and was liable to be dismissed.
In the case of Naguba Appa v. Namdev-AIR 1954 SC 50, the Hon'ble Apex Court has held that mere filing of an appeal does not suspend the decree for pre-emption and unless that decree is altered in any manner by the court of appeal the pre-emptor is bound to comply with its directions with regard to the deposit of amount within the fixed time. It has further been observed that the dismissal of the suit on default in paying the purchase money within the time allowed is as a result of the mandatory provisions of Order 20 Rule 14 and not by reason of any decision of the court. The omission to incorporate the direction in the decree to the effect that if the deposit was not made within the time fixed the suit will stand dismissed, cannot, therefore, in any way affect the rights of the parties.
In the case of Sulleh Singh v. Sohan Lal-AIR 1975 SC 1957, relying upon the decision rendered by the Apex Court in the case of Naguba Appea v. Namdev-AIR 1954 SC 50, it was observed in para 13 as under:
“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 on or before 1 April, 1969, it became mandatory on the lower appellate Court by reason of the ruling of this Court n Naguba Appa's case AIR 1954 SC 50 (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 20 August, 1969.”
The Hon'ble Apex Court dismissed the suit of the plaintiff.
In the case of Chandanmal v. Phool Chand-1952 RLW 212, three objections were raised; first objection was that deposit of the amount of decree was not being made within time allowed by the District Judge and the appeal not having been filed within that time, the appeal was not maintainable. Second objection was in relation to court fee and the third objection was in relation to section 9 and 10 of the law of Pre-emption in Marwar of 1922, the pre-emptor have lost their right of pre-emption and the appeal, therefore, was liable to be dismissed. In para 29, this court observed as under:
“We are, therefore, of opinion that the purchase money not having been deposited within the time allowed by the trial court, the plaintiffs in this suit lost the right of preemption undr section 10 of the Law of Preemption in Marwar, and the decree became void. As such the present appeal is incompetent because the right having been lost we cannot give any relief to the appellant”
In the case of Shivshankar Dayal v. Smt. Shantidevi-1971 WLN 585, this court has held that the time fixed fr payment under a pre-emption decree could not be extended by the court passing decree under section 148 or 151 CPC in view of the provisions contained under Order 20 Rule 14 CPC and in view of the provisions of the Pre-emption Act.
In the case of Mir Mohammad v. Nain Singh-AIR 1970 J&K 33, the Hon'ble Jammu & Kashmir High Court distinguishing the case of Naguba Appa v. Namdev AIR 1954 SC 50 has observed that the appellate court can extend the time to deposit the amount as determined under the decree.
In the case of Johri Singh v. Sukh Pal Singh-AIR 1989 SC 2073, the Hon'ble Apex Court observed thus:
“The trial court directed respondents Sohan Lal and Nathi to deposit Rs. 6,300/- and Rs. 5,670/- respectively on or before 1 April, 1969 less 1/5 of the pre-emption amount already deposited by them. Sohan Lal's decree was for possession by pre-emption in respect of Killa Nos. 14/1, 17 and 18/1 of Rectangle 37. The plaintiffs aggrieved by that order filed an appeal contending 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 them. On 29 July, 1969, the Additional District Judge passed a decree for possession by pre-emption in favour of respondent Sohan Lal in respect of Killa No. 24 of Rectangle 37 also on payment of Rs. 9,100/- and he was also directed to deposit this amount on or before 20trh August, 1969. The decree in favour of Nathi was maintained without change. The appellangs filed an appeal to the High Court contending that respondents did not deposit the decretal amount by 1 April, 1969 as directed by the trial Court and, tehrefore, the suit was liable to be dismissed under O.20, R.14 of the C.P.C and the High Court allowed the appeal against Nathi and dismissed the appeal against Sohan Lal holding that since the lower appellate Court granted Sohan Lal decree for one more Killa and directed that the amount would be Rs. 9,100/- to be deposited on or before 20 August, 1969, the respondent was to comply with the appellate decree and not the decree of the trial court. This Court upheld the appellant's contention that the lower appellate Court was wrong in extending the time for payment because the failure of the plaintiffs-respondents to deposit the amount in terms of the trial Court's decree would result in preemptors' suit standing dismissed by reason of default in not depositing pre-emption price. It was 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.”
After carefully examining the law on the point, now I propose to examine the questions proposed by me.
Since question nos. 1 to 3 are inter-related, therefore, they are being decided together.
In the present case, the facts which are not in dispute are that on 20.6.1977 the disputed property was purchased by Madan Lal, respondent no. 1, from Shanker Lal respondent no. 2 under sale-deed Ex.3 Improvement was also made on the said property. A notice on 29.6.1977 was addressed to Madan Lal. The suit was filed on 30.8.1977 Issues were framed on 17.3.1980 The trial court passed decree in favour of the plaintiff in the suit for declaration/preemption and it was ordered that the amount determined was required to be paid by the plaintiff on or before 10.7.1986 The plaintiff was required to deposit either in the court or to make payment to the defendants. The plaintiff neither made any payment to the defendants nor deposited the same in the trial court up to 10.7.1986 The plaintiff moved an application on 6.8.1986 under section 148/151 CPC seeking extension of time period before the trial court and the trial court dismissed the same on 4.2.1988 After expiry of the time period provided in the decree, the plaintiff preferred regular appeal which was presented before the District Judge, Ajmer on 12.8.1986 Thus, it appears that even when the application was moved before the trial court on 4.2.1986, the amount determined was not deposited. The appellate court dismissed the appeal on 1.4.2000
The contentions raised by the learned counsel that the appeal is in continuation of the suit and the trial court was required to extend time to deposit the amount and subsequently, the amount was deposited, therefore, the appeal was liable to be accepted and the appellant has not lost right to appeal. The above contentions raised by the learned counsel for the appellants are not liable to be accepted in view of several decisions of the Hon'ble Apex Court as well as of the High courts particularly rendered by the Hon'ble Apex Court in the case of Naguba Appa v. Namdev (supra) and this court in the case of Chandanmal v. Phool Chand (supra). There is no hesitation in coming to the conclusion that the appellant admittedly has not complied with the direction given by the court and did not deposit the amount in court or paid the same to the defendants up to 10.7.1986, therefore, he had lost the rights to prefer the appeal as the appeal was preferred on 12.8.1986 It is not the case of the plaintiff appellants that the judgment and decree was exparte one. A plea has been taken that the copy of the decree was obtained on 24.7.1986 and in that regard an application for extension of time was also moved and since the trial court was only entitled to decree the suit in relation to purchase money and the property in dispute, therefore, the learned appellate court was required to examine the entire matter on merits are of no help to the appellants for the simple reason that the learned appellate court has discussed the matter in detail and finding that the appellant had lost the right of appeal and further since it is not in dispute that it is much after the time allowed by the court to deposit the amount the appeal was preferred and no money was deposited, therefore, in view of the decision rendered by this court in Chandanmal v. Phool chand (supra), the appellant had lost right of appeal. If that be so, he cannot claim any relief in the appeal preferred before this court.
In view of the above factual and legal aspect of the matter, I do not find any illegality committed by the appellate court in dismissing the appeal of the appellants. The answer to the points framed is that the appellant was required to comply with the direction given in the judgment and decree by the trial court in the suit filed on the basis of pre-emptory right and since no compliance was made and no amount was deposited or paid to the defendants, therefore, the appellant having lost the right to appeal, the appellate court has correctly drawn its conclusion while dismissing the appeal. The answer to the points framed is accordingly and the appeal is liable to be dismissed.
In the result, this second appeal is dismissed.
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