LAWS(PVC)-1939-10-98

LAXMAN VISHRAMJI PATWARI Vs. DEORAO VISHRAMJI PATIL

Decided On October 05, 1939
Laxman Vishramji Patwari Appellant
V/S
Deorao Vishramji Patil Respondents

JUDGEMENT

(1.) THIS second appeal arises out of a suit for pre-emption. The plaintiff was the owner of a half share in Survey No. 47/1 of mouza Reosa. There were two defendants, defendant 1 being the purchaser of the half share in suit from the original owners, a group of five men, and defendant 2 being one Laxman who had threatened the original purchaser Raghunathdas with a suit for pre-emption and was said to have entered into an agreement with him to. purchase the property in suit for a sum of Rs. 300. The trial Court found that the market value of the share in question was Rs. 300 and passed a decree in the plaintiff's favour conditional on the sum of Rs. 300 being paid within three months. It was found that the plaintiff's right of preemption prevailed over that of Laxman since the plaintiff was the owner of the remaining half share in Survey No. 47/1 whereas Laxman had a remoter claim in that he was a co-owner in Survey No. 47 but not in that particular sub-division. The plaintiff appealed and claimed that the preemption price was unduly high and that the fair price was Rs. 150 as he had originally claimed. The same defendants were cited as respondents, and it is to be noted that there was no appeal by the present appellant Laxman in the lower Appellate Court as to the priority of his claim for pre-emption. The appeal succeeded and it was held that the plaintiff was entitled to have the pre-emption price fixed not, as was done in the trial Court, on the basis of the market value of the land ascertained on the price of similar land in the vicinity, but on the basis of the price which the respondent Raghunathdas had paid to his vendors, and which was found to be Rs. 125. Another point which was determined in this appeal and which was raised by Laxman was that the suit should have been dismissed as the plaintiff did not pay the amount of Rs. 300 within the time fixed in the trial Court and that the order which he had obtained from the Appellate Court within the time fixed for payment for an extension of time would not protect him. This contention was negatived.

(2.) THE second appeal is brought by the defendant Laxman. There is no mention of any contention that he himself had a prior claim to pre-empt, and the line taken is entirely that which would have been expected in an appeal by Raghunathdas, the original purchaser, who has preferred no appeal at all. The contention is that the preemption price should have been fixed at Rs. 300 instead of Rs. 125 and that the decision of the lower Appellate Court is incorrect and that the plaintiff's suit should have been dismissed as the result of his failure to deposit Rs. 300 within three months.

(3.) IN the case I am now considering, the appellant in the lower Appellate Court took prompt action and did everything which he could reasonably have done. In appeal the Appellate Court was competent to vary not only the price fixed but also the time within which it should be paid, and if the time within which payment is to be made is a ground of appeal, that particular ground would be frustrated if the payment has to be made as a condition precedent to an appeal at all, and an order of an Appellate Court provisionally enlarging the time for payment may be no more than the barest act of justice, and such an order may be, as in the case before me, made conditional and would only be operative, again as in the case before me, if that condition was promptly fulfilled. In the result the appellant in the lower Appellate Court succeeded in having the pre-emption price reduced by more than 50 per cent., and he has been upheld in this Court. It seems unnatural that he should not be allowed in his appeal to ask for an extension of time in order to prevent him unnecessarily paying a sum more than double that which has been found to be just. This is the view which appears to have been taken in another decision, yet unpublished, of this Court, Sarjabai v. Bhagwanji since reported in (1939) 26 AIR Nag 140. The prohibition embodied in Ambadas v. Laxman (1923) 10 AIR Nag 210 can have application only to the act of the Court itself and not to the act of an Appellate Court. The result is that the appeal fails and is dismissed with costs.