Prem Chand Pandit, J. - (1.) THIS order will dispose of two connected Second Appeals from Order Nos. 79 and 82 of 1968, in which identical questions arise for decision. It has been conceded by the learned Counsel for the parties that the decision in the former case will govern the latter as well. I will, therefore, refer to the facts of S.A.O. No. 79 of 1968.
(2.) ON the 13th of May, 1966, by a registered deed, Kundha Singh sold some agricultural land to Kartar Singh and his brother Bahal Singh for Rs. 5,000. On 9th of May, 1967, Ajmer Singh brought a suit for possession of the said land by pre -emption on the ground that he was the son of the vendor. On 11th of May, 1967, the trial Court passed the following order in the presence of the counsel for the Plaintiff: Defendants be summoned on payment of process fee. l/5th of sale price be deposited before the next date. To come up on 2nd June, 1967. On 2nd of June, 1967, Ajmer Singh made an application to the trial Court stating that the Court had ordered the deposit of l/5th of the sale price by 2nd of June, 1967. It was difficult for the Applicant to deposit 15th of the sale price of Rs. 5,000 and he might, therefore, be allowed to furnish security for the said amount instead. On the same date, without passing any formal order on the Plaintiff's application, the trial Judge rejected the plaint under Section 22(4) of the Punjab Preemption Act, 1913, hereinafter called the Act, observing as under: In this suit the Plaintiff was directed on the last date of hearing, i.e., on 11th May, 1967 to deposit the l/5th of the sale price before the next date i.e. today. Today the Plaintiff has filed an application praying permission to furnish security instead of cash payment. Firstly, this application is time -barred, because the Plaintiff was required to deposit the l/5th amount before today. Secondly, as held in : A.I.R. 1938 Lah 452, the choice made in favour of either cash or security cannot later on be changed to the other. Thirdly, no grounds are shown in the application why the deposits could not be made in time. Therefore, the Plaintiff having failed to deposit the Zare -Panjam within the permitted time, the plaint is rejected under Section 22(4) of the Punjab Preemption Act. Against this order, the Plaintiff went in appeal before the learned District Judge, Bhatinda. He was of the view that the order passed by the trial Judge on 11th of May, 1967, was not strictly in accordance with the provisions of Section 22(1), inasmuch neither the exact amount nor the definite date by which it had to be deposited by the pre -emptor was mentioned in that order. He was further of the view that the trial Judge should have decided the application made by the pre -emptor on 2nd of June, 1967, because if the same had been rejected, the pre -emptor could have applied for the extension of time for making the deposit of the amount or he might have offered the amount of Rs. 1,000 for deposit, and in that case, the trial Court might or might not have extended the time for the deposit or agreed with the pre -emptor that he was to deposit the said amount on or before 2nd of June, 1967. Since the trial Court did not decide the pre -emptor's application, that, according to the learned Judge, had caused prejudice to him. As, in the view of the learned Judge, the appellate Court could extend the period for making deposit of l/5th of the probable value, he gave an opportunity to the pre -emptor to deposit the said amount within ten days from the day he decided the appeal. As a result of these findings, he accepted the appeal on 13th of August, 1968, set aside the order of the trial Court and sent the case back directing the pre -emptor to deposit Rs. 1,000, as l/5th of the probable value of the land; on or before 23rd of August; 1968. If he did that; the trial Judge would proceed to decide the case on merits. In case of default by the pre -emptor, the consequences as contemplated by Section 22(4) of the Act would follow. Against this order; the present second appeal has been filed by the vendees Kartar Singh and his brother Bahal Singh.
(3.) COUNSEL for the Appellants submitted that the learned District Judge was in error in extending the time for the deposit of the l/5th amount on the pre -emptor's application dated 2nd of June; 1967; because firstly; the said application had been filed beyond limitation, and, secondly no prayer had been made therein for the extension of time for making the deposit, The relief claimed was that the pre -emptor might be allowed to furnish security for the said amount instead of making deposit of the same.;