- (1.) THIS is an appeal against the order of the Additional District Judge, Rohtak, remanding the case to the trial Court on setting aside the later's judgment rejecting the plaint of the plaintiff -respondent under Section 22 (4) of the Punjab Pre-emption Act, 1913 on the ground that the plaintiff failed to deposit 1/5th of probable value of the suit land within the fixed period. Facts are not complicated and may be stated in narrow compass. A sale of agricultural land made by a registered sale deed dated 1st of July, 1967 for an ostensible consideration of Rs. 9,000/- was sought to be pre-empted by the plaintiff -respondent. A suit was filed on 21st of June 1968 and an order made by the trial Court on 24th of June 1968 in the following terms in the presence of the counsel for the plaintiff : " case be registered. Issue summons for 8th of August 1968 on process-fee and filing of copy of plaint. Rs. 3800.- to be deposited on or before 7th of August 1968 as 1/5th pre-emption money. " The plaintiff failed to deposit the amount by 7th of August 1968, but an application was made by him on that day in which it was stated that he had not been able to arrange 1/5th of the pre-emption money, i. e. , Rs. 1800/-, because of his illness. An extension of time was prayed for but the trial Court rejected his request on the same date with an observation that there was no justification for extension of time limit. It is significant to note that though the order as made on 24th of June 1968 requiring him to deposit a sum of Rs. 3,800/-, yet in the application the amount required to be deposited was stated to be only Rs. 1,800/ -. It was not suggested by the plaintiff that the amount of Rs. 3800/- had not been correctly assessed as 1/5th of the probable value of the suit land. After the dismissal of this application, another application was made on the same day at the fag-end of the court hours, namely, at 4-30 P. M. in which the request for extension of time to deposit 1/5th of the purchase price was repeated. No other fact was stated, nor was it pleaded that the probable value of the land had not been correctly assessed. The second application thus in substance asked for review of the earlier order passed on the same day by which the first request for extension of time had been declined. The second application was put up before the Sub. Judge on 12th of August, 1968 because in between there were holidays and he was also on casual leave. It was ordered that the case should be put up along with the file on 14th of August 1968. The plaintiff had not till then filed a copy of the sale deed and he was asked to do so by 21st of August 1968. No such copy was filed even on that day and the case was adjourned to 22nd of August, 1968 and then to 23rd of August, 1968 for arguments and orders. It was held that no good and sufficient cause had been shown by the plaintiff justifying the extension of time for deposit of 1/5th of the probable value of the suit land. The plaint was accordingly rejected on 24th of August. 1968 under Section 22 (4) of the Pre-emption Act. An appeal being preferred by the plaintiff, the Additional District Judge relying n a judgment of the Pepsu High Court reported as Nihal Singh v. Ram Chandar, AIR 1953 Pepsu 23, came to the conclusion that the Court of first instance had erred in not determining the probable value of the suit land and its order requiring the plaintiff to deposit a sum of Rs. 3800/- as 1/5th of the probable value was, therefore, inherently defective for which the plaintiff could not be penalised. The case was remanded with a direction to the trial Court to fix the probable value of the property and to direct the plaintiff to deposit 1/5th thereof by a date to be fixed afresh. It is against this order that the defendant - vendees have now come up in appeal.
(2.) SECTION 22 (1) reads as under : " in every suit for pre-emption the Court shall at, or at any time before, the settlement of issues required 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. " It is provided in sub-section (4) of this Section that if the plaintiff fails, within the time fixed by the Court, to deposit or furnish security mentioned in sub-section (1) or (2), his plaint shall be rejected. It is of course, open to the Court to grant further time in the exercise of its judicial discretion and in that case the amount of 1/5th of the probable value of the suit property has to be deposited within the extended time. The deposit of 1/5th amount is beyond doubt in the nature of security to protect a vendee gains a frivolous and vexatious suit by an alleged pre-emptor who may not sometime be prosecuting the proceedings in good faith. The deposit give a guarantee that the plaintiff means to proceed with the suit and that his object is not to harass the vendee for ulterior ends. Section 22 (3) which provides that every sum deposited or secured under sub-section (1) or (2) shall be available for the discharge of costs is another guarantee given to the vendee who can recover his costs readily out of the amount deposited by the plaintiff. Section 22 (1), which has been quoted above in extenso, lays down beyond any manner of doubt that the Court must at or before the settlement of issues require the plaintiff to deposit a sum not exceeding 1/5th of the probable value of the suit property or it may in the alternative call upon him to give security to the satisfaction of the Court for payment of a sum not exceeding such probable value within such time as the Court may fix in this behalf. The order of the Court must be clear and specific as non-complaisance therewith entails serious consequences for the plaintiff whose plaint is liable to be rejected. The court has power to extend time, but the conduct of the plaintiff praying for extension is every time relevant. The exercise of discretion in the matter of allowing request for extension is judicial and the plaintiff has to make out a good and sufficient cause. When a discretion has been exercised by the trial Court one way or the other, a court of appeal should normally be reluctant to interfere in the exercise of that discretion unless it is of the opinion that any such exercise was not judicial but arbitrary, capricious or whimsical. The Additional District Judge held the order of the trial Court to be suffering from a legal infirmity inasmuch it had not been stated in that order as passed on 24th of August, 1968 as to what was the probable value of the suit property of which 1/5th was to be deposited under Section 22 (1 ). Reliance in this connection was placed on a judgment of the Pepsu High Court in Nihal Singh's case, AIR 1953 Pepsu 23 (supra ). The facts of that case are clearly distinguishable and have no semblance of resemblance with the case in hand. The trial Sub-Judge there did not specify any amount which was to be deposited. He only stated in the order that "zar-ikhamas vakil muddayi 15-12-2004 tak dakhil karey. " The sale, as per sale deed, purported to be for a sum of Rs. 700/but it has been alleged in the plaint tat in fact Rs. 270/- only were paid before the Sub-Registrar and that Rs. 430/- had been added fictitiously. A decree for possession on payment of Rs. 270/was prayed for. It was in the background of these averments that the plaintiff deposited only 1/5th of Rs. 270/- by the fixed date. He took the order of the Sub-Judge to mean that he was required to deposit 1/5th of the price that had in fact been paid. In such a situation, it was held that rejection of the plaint for the failure of the plaintiff to deposit 1/5th of Rupees 700/- was illegal. The order of the Sub Judge about the deposit of 1/5th amount was certainly vague and capable of leading to a misunderstanding as the amount of 1/5th had not been specified. Passey, J. took the view, and, if I may say so with all respect, rightly, that without making estimate of the probable value, the trial Court could not punish the plaintiff for his omission to comply with the order. In the instant case, the amount of 1/5th had been definitely fixed at Rupees 3800/- which the plaintiff was bound to deposit on or before the 7th of August, 1968. Till the date by which he was to deposit the amount, the plaintiff raised no objection that the trial Court had not fixed probable value of the suit land and that he should be permitted to deposit 1/5th of the consideration of Rs. 9000/- as recited in the sale deed. On the other hand, when he appeared in Court on 7th of August 1968, he only asked for extension of time on a ground which appeared to the trial Court to be not well founded. The amount of 1/5th was mentioned as Rs. 1800/- though the order actually was for the deposit of Rs. 3800. 0. the attention of the trial Court was not drawn to any infirmity in the order and the pa was not prepared to deposit even Rs. 1800/ -. When the prayer for extension of time was rejected, he made another application on the same date but again he was not possessed of any money which could be deposited towards 1/5th even if the probable value was fixed at Rs. 9000/- , as given in the sale deed. As a matter of fact, the plaintiff never produced sale deed in spite of getting an adjournment for doing so. The conduct of the plaintiff was very relevant and, in the circumstances stated above, I am irresistibly driven to the inference that the applications made by him was not bona fide. The trial Court rightly rejected the request for extension of time but the appellate Court did not correctly appreciate the true import of the judgment in Nihal Singh's case, AIR 1953 Pepsu 23 (supra) when it interfered with the exercise of discretion by the trial Court.
(3.) MR. D. C. Ahluwalia, learned counsel for the respondents, has vehemently urged before me that the Court should have determined probable value and the same could not be held to exceed the sale price as stated in the sale deed. Learned Counsel fails to see that the conduct of the plaintiff was throughout indicative of an attempt to prolong the proceedings in order to gain time and did not show any genuine desire to deposit 1/5th of the value of the suit land. There is no rule of law that the probable value cannot exceed the ostensible sale price as given in the sale deed and it is open to the Court in each case to determine what is really the probable value though any such determination shall not affect a decision consequently made as to the market value of the suit property. The plaintiff as already stated was not prepared to deposit even Rs. 1800/- on or before the 7th of August, 1968 and the trial Court rightly exercised its discretion in refusing to extend time.;