- (1.)Defendant No. 2 is the appellant in this appeal. It appears that some dispute arose between the appellant and respondents 1 to 3 in respect of several plots of land measuring about 40 bighas situated in village Bhawampur in the then district of Champaran. At the time of the harvesting of the crops there was an apprehension of breach of peace and due to intervention of common friends and well wishers the crops were harvested and kept in custody of Laksh-man Singh. the then Mukhiya of the Gram Panchayat, and later they were sold for Rs. 1,536. After some time the aforesaid Lakshman Singh filed an interpleader suit impleading the appellant and respondents 1 to 3. During the pendency of the interpleader suit respondents 1 to 3 were transposed to the category of plaintiff and Lakshman Singh was transposed to the category of defendant. Thereafter, the suit proceeded for trial in which Lakshman Singh was defendant No. 1 and the appellant defendant No. 2.
(2.)The trial court, on consideration of the materials, came to the conclusion that respondents 1 to 3 were in possession of the lands in dispute since long; as such they were entitled for the money which had been kept in custody of the Mukhiya concerned. An appeal filed on behalf of the appellant before the court below was also dismissed by the learned Additional District Judge, Motihari. affirming the findings of the learned Additional Munsif. Hence this second appeal on behalf of defendant No. 2.
(3.)This appeal was listed for hearing before a learned single Judge of this court who has referred it to Division Bench. The learned counsel appearing for the appellant has urged two points on behalf of the appellant. The first point which has been raised on behalf of the appellant is that there has been non-compliance with Rule 2 of Order XXXV of the Civil P. C. (hereinafter to be referred to as the Code) inasmuch as the aforesaid amount of Rs. 1,536 was never deposited with the Court concerned. Rule 2 of Order XXXV of the Code prescribes that, where the thing claimed is capable of being paid into court or placed in custody of the Court, "the plaintiff may be required so to pay or place it before he can be entitled to any order in the suit." In our view, it is difficult to hold that this: provision is mandatory in nature, so as to nullify the whole proceeding before the court concerned. In this connection it may be mentioned that earlier under the old provisions the words used were "must so pay or place it." They have been substituted by the words "may be required so to pay or place it." On plain reading, the words "may be required so to pay", lead to an inference that such provision is directory in nature. There is no material on the basis of which it can be held that at any stage the original plaintiff, the Mukhiya, was required to deposit such amount with the court. In our opinion, there is no merit in this contention.