A.D.Koshal, J. - (1.) THIS second appeal is directed against the order dated the 6th of July, 1968, of Shri Kartar Singh, District Judge, Kapurthala, accepting the appeal of the plaintiff -respondent whose plaint in a suit for pre -emption had been rejected by the trial Court on the 22nd of May, 1967, for the reason that he had not deposited one -fifth of the sale price on or before the 21st of May, 1967, as directed by that Court, and restoring the suit to the file of that Court for further proceedings.
(2.) IT was by its order dated the 15th of April, 1967, that the trial Court directed the respondent to make a deposit of Rs. 1192/ -, being one -fifth of the sale price, "before 22nd May, 1967". The case was taken up on that date when an application was made on behalf of the respondent praying for extension of time granted for the deposit on the ground that he was lying admitted as an indoor patient in an Amritsar hospital. The application was accompanied by a letter purporting to have been written by the respondent to his counsel and stating that he was unable to move on account of illness which had been afflicting him since the 8th of May, 1967, a medical out -patient ticket purporting to have been issued by the Causality Medical officer of the V.J. Hospital, Amritsar on the 21st of May, 1967, in relation to the respondent who was described as suffering from gastro -enteritis and a certificate purporting to have been issued by Dr. Sudarshan Chakra of Amritsar on the 19th of May, 1967, to the effect that the respondent was suffering from gastro -enteritis and had been advised rest in bad for 4/5 days. No affidavit in support of the application was produced. The learned Subordinate Judge passed the following order on the same day with regard to the application: Presented by Shri Pashori Lal, I have gone through the medical certificate. No case is made out for extension of time. The prayer is rejected. Thereafter the learned Subordinate Judge rejected the plaint with the following order: Present: Counsel for the plaintiff. None for the defendants. One fifth pre -emption money not deposited. The counsel for the plaintiff has moved an application for extension of time of deposit. I have rejected that application vide separate order of ever date. The 1/5th deposit was to be made before today. As the plaintiff has failed to comply with the direction of the Court regarding deposit of 1/5th pre -emption money, the plaint is, therefore, rejected under section 22(4) of the Pre -emption Act. The learned District Judge accepted the respondent's appeal on the following two grounds : (1) The certificate produced on behalf of the respondent showed that he was ill and had been admitted to the V.J. Hospital, Amritsar and that he had set up a genuine case. The learned Subordinate Judge rejected the application for extension of time for making the deposit without allowing any time to the respondent to produce evidence in support of the allegations of illness, etc. (2) The 21st of May, 1967, was a Sunday and the Courts remained closed on that date. The deposit could, therefore, be made at any time on the next working day and the learned Subordinate Judge should not have rejected the plaint on the 22nd of May, 1967, before the court time had expired. Accordingly the plaint was restored for further proceedings to the file of the learned Subordinate Judge who was directed to give one more opportunity to the respondent to make the deposit.
(3.) IT has been contended on behalf of the appellants that the learned District Judge was in error in assuming that the certificates produced by the respondent indicated that he had been admitted to the V.J. Hospital, Amritsar and that his finding about the respondent having set up a genuine case with regard to his illness, etc., must be reversed. With this contention I fully agree for the simple reason that the medical out -patient ticket produced before the learned Subordinate Judge has obviously been misconstrued as stating that the respondent had been admitted to the hospital. Really the certificate states no more than that the respondent was suffering from gastro -enteritis, that he had been examined as an out -patient (and not as an indoor patient) and that certain medicines were prescribed for him. And if this be so, the main reason for the finding of the learned District Judge in this behalf fails. However, I need not go any further into this aspect of the matter as I am of the opinion that the other ground on which the learned District Judge accepted the appeal instituted by the respondent is unassailable. According to the order of the learned Subordinate Judge, the respondent had to make the deposit before 22nd May, 1967", i.e. on the 21st of May, 1967, at the latest. The date last mentioned was a Sunday and obviously no deposit could be made on that date. In such a situation I am of the opinion that the respondent would have been within his rights to make the deposit on the next working day which was the 22nd of May, 1967. This opinion is based on the well recognised principle of law that the Act of Court shall prejudice no party and finds support in Fateh Khan v. Chhajju : A.I.R. 1931 Lah. 386, which was a case relating to a deposit to be made under a decree for pre -emption and in which the last date covered by the period allowed to the plaintiff in that behalf was a court holiday. In overruling the contention that in cases in which it was possible for a party to perform an act at an earlier period, it should not be open to him to wait till the closing days or till the last day of the period and if the last day or days happened to be holidays, he could take no advantage of that circumstance, Jai Lal and Abdul Qadir, JJ. observed: This argument is open to the obvious objection that it has the effect of curtailing the days allowed by an order or a decree, without any reason which is within the control of the party concerned. Reliance was placed on paragraph 894 of Volume 27 of Halsbury's Laws of England which states : The general rule does not hold where the effect of it would be to render performance of the act impossible. This would be the case if it happened that the whole period during which the act could be done consisted of holidays in which case the act may lawfully be done on the next possible day. Again, the general rule does not hold good where the last day is a Sunday and the act to be done is one the performance of which on a Sunday is prohibited by the Sunday Observance Act, or where the act to be done has to be done, not by the party -only but by the Court or by the party in conjunction with the Court. In such cases the act may, when the last day limited for the performance of it happens to be a day when the Court or its office is loosed , be done on the next practicable day. The exception to the general rule recognised in this paragraph was held to govern cases of the king in hand and, in my opinion, fully applies to the facts of the present case also. Accordingly, I hold that the learned Subordinate Judge could have taken up the question of the rejection of the plaint only after the 22nd of May, 1967, i.e., on the 23rd of May, 1967, at the earliest. It may be and the probability is that the respondent would not have made any deposit on the 22nd of May, 1967, even if the learned Subordinate Judge had not rejected the plaint on that date; but then that cannot legalise the order of rejection of the plaint which was invalid by reason of the fact that it was made before the expiry of the period allowed to the respondent for making the deposit which, as already pointed out, would include the whole of the 22nd of May, 1967, under the circumstances.;