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PETITIONER: JANG SINGH

       Vs.

RESPONDENT: BRIJLAL AND ORS.

DATE OF JUDGMENT: 20/02/1963

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. SINHA, BHUVNESHWAR P.(CJ) SHAH, J.C.

CITATION:  1966 AIR 1631            1964 SCR  (2) 145  CITATOR INFO :  D          1970 SC1041  (36)  RF         1988 SC1531  (189)  R          1989 SC2073  (3,10,13,18)  D          1992 SC2084  (28)

ACT: Pre-emption--Deposit of one rupee less in Court under  order of  court--Litigant not to suffer--Act of Court should  harm no one.

HEADNOTE: The  appellant filed a suit for pre-emption for the sale  of certain lands against the first respondent.  A compromise decree  was  passed in favour of the appellant and  lie  was directed  to  deposit  Rs. 5951/- less  Rs.  1000/-  already deposited.   The suit was to stand dismissed with  costs  if the deposit was not. made punctually.  The appellant made an application to the Subordinate judge for making the  deposit of  the  balance  of’ the amount.  The clerk  of  the  Court prepared  a challan in duplicate and handed it over  to  the appellant.  In the challan Rs. 4950/- were mentioned instead of Rs. 4951.The money was  deposited  by  the  appellant. Later  on, it was pointed out that the deposit was short  by Re. 1. The Subordinate judge accepted the objection and  set aside  the  decree for pre-emption passed in favour  of  the appellant.  The order of the Subordinate judge was set aside by  the District judge.  It was held that the Court and  its clerk made a mistake by ordering the appellant to deposit an amount  which was less by Re. 1,/- and hence  the  appellant was  excused in as much as the responsibility was shared  by the Court.  The decision of the District judge was set aside by  the High Court and the appellant came to this  Court  by special leave. Held,  that the decision of the District judge  was  correct and  the  appellant was ordered to deposit Re.  1/-  in  the court  of  the  Subordinate Judge.   The  appellant  was  an illiterate person and the Court and its officers had largely contributed to the error committed by him.  It is true  that the  litigant  must be vigilant and take care, but  where  a litigant  goes to the court and asks for its assistance,  so that  this obligation under a decree might be  fulfilled  by

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him  strictly, it is incumbent on the Court, if it does  not leave  the litigant to his. own devices to ensure  that  the correct information is furnished’, If the Court in supplying the  information makes a mistake, the responsibility of  the litigant, though it does not altogether cease, 146 Is  at least shared by the Court.  If the litigant  acts  on the  faith  of that information, the court cannot  hold  him responsible for a mistake which it itself causes.  No act of Court  should harm a litigant and it is the bounden duty  of Courts  to  see that if a person is harmed by a  mistake  of Court, he should be restored to the position lie would  have occupied but for that mistake.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 687 of 1962. Appeal -by special leave from the judgment and decree  dated December 1, 1961, of the Punjab High Court at Chandigarh, in Execution Second Appeal No. 586 of 1960. K.   L. Mehta, for the appellant. K.   L. Gosain, K. K. Jain and P. C. Khanna, for the respondents Nos. 2 to 6. 1963.  February 20.  The judgment of the Court was delivered by HIDAYATULLAH  J.-This appeal with the special leave of  this Court  arises out of execution of a decree  for  pre-emption passed in favour of the appellant Jang Singh.  By the  order under appeal the High Court has held that jang Singh had not deposited  the full amount as directed by the decree  within the  time allowed to him and his suit for  pre-emption  must therefore  be  ordered to be dismissed and  also  the  other proceedings  arising  therefrom as there was no  decree  -of which he could ask execution. The  facts of the case are simple. Jang Singh filed  a  suit for  pre-emption of the sale of certain lands  against  Brij Lal  the first respondent (the vendor), and Bhola Singh  the second respondent (the vendee) in the Court of Sub-judge 1st Class, Sirsa.  On October 25, 1957, a compromise decree  was passed in favour of jang Singh and he was directed to  147 deposit  Rs. 5951 less Rs. 1000 already deposited by him  by May 1, 1958.  The decree also ordered that on his failing to make  the deposit punctually his suit would stand  dismissed with  costs.   On  January  6,  1958,  jang  Singh  made  an application to the Sub judge, Sirsa, for making the  deposit of  the balance of the amount of the decree.  The  Clerk  of the  Court, which was also the executing Court,  prepared  a challan in duplicate and handed it over with the application to  jang Singh so that the amount might be deposited in  the Bank.   In  the  challan (and in the  order  passed  on  the application,  so  it  is alleged) Rs.  4950  were  mentioned instead  of  Rs. 4951. jang Singh took the challan  and  the application  and made the deposit of the wrong  balance  the same  day  and  received  one copy  of  the  challan  as  an acknowledgement from the Bank. In  May,  1958,  he applied for and received  an  order  for possession  of the land.  It was reported by the Naib  Nazir that the entire amount was deposited in Court.  Bhola  Singh then  applied on May 25, 1958, to the Court for  payment  to him  of the amount lying in deposit and it was  reported  by the  Naib Nazir on that application that Jang Singh had  not deposited  the correct amount and the deposit was  short  by one  rupee.  Bhola Singh applied to the Court for  dismissal

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of jang Singh’s suit, and for recall of all the orders  made in jang Singh’s favour. The  Sub  Judge,  Sirsa,   accepted Bhola Singh’sapplication  observing  that  in  pre-emption cases  a Court had no power to extend the time fixed by  the decree  for  payment of the price and the preemptor  by  his failure  to  deposit  the correct amount  had  incurred  the dismissal of the suit under the decree.  He ordered also the reversal  of the earlier orders passed by him in  favour  of Jang  Singh  and directed that possession of the  fields  be restored to the opposite party. jang Singh appealed against that order.  The 148 District judge recorded the evidence of the Execution Clerk, the  Revenue  Accountant, Treasury ice and jang  Singh.   He also  examined Bhola Singh. the learned District judge  held that the record of the case showed that on the day the  case was compromised and the decree was passed Jang Singh was not present  and  did not know the exact decretal  amount.   The learned District judge assumed that it was the duty of  jang Singh to be punctual and to find out the exact amount before he  made the deposit.  He, however, held that as jang  Singh had  approached the Court with an application  intending  to make  the deposit to be ordered by the Court, and the  Court and  its clerk made a mistake by ordering him to deposit  an amount  which was less by one rupee, jang Singh was  excused in  as much as the responsibility was shared by  the  Court. The learned District Judge, therefore, held that this was  a case in which jang Singh deserved to be relieved and he came to  the  conclusion  that  jang  Singh  was  prevented  from depositing  the  full amount by the act of  the  Court.   He concluded "thus the deposit made was a sufficient compliance with the terms of the decree".  The order of the Sub  Judge, Sirsa dismissing the suit was set aside. Bhola  Singh  appealed to the High Court.  This  appeal  was heard by a learned single.judge who was of the opinion  that the  decree which was passed was not complied with and  that under  the  law  the time fixed under  the  decree  for  the payment  of the decretal amount in pre-emption  cases  could not be extended by the Court.  He also held that the finding that  the short deposit was due to an act of the  Court  was unsupported  by  evidence.   He accordingly  set  aside  the decision of the learned District judge and restored that  of the Sub-judge, Sirsa. The facts of the case almost speak for themselves.  A search was made for the application on  149 which the order of the Court directing a deposit of Rs. 4950 was  said to be passed.  That application remained  untraced though the District Judge adjourned the case more than once. It  is, however, quite clear that the challan  was  prepared under  the  Court’s  direction  and  the  duplicate  challan prepared  by the Court as well as the one presented  to  the Bank  have  been  produced in this case and  they  show  the lesser  amount.  This challan is admittedly prepared by  the Execution  Clerk and it is also an admitted fact  that  Jang Singh  is  an illiterate person.  The  Execution  Clerk  has deposed  to the procedure which is usually followed  and  he has  pointed out that first there is a report by  the  Ahmed about the amount in deposit and then an order is made by the Court on the application before the challan is prepared.  It is,  therefore, quite clear that if there was an  error  the Court and its officers largely contributed to it.  It is  no doubt  true that a litigant must be vigilant and  take  care but  where  a  litigant  goes to  Court  and  asks  for  the assistance  of  the Court so that his obligation-,  under  a

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decree  might be fulfilled by him strictly, it is  incumbent on  the Court, if it does not leave the litigant to his  own devices,   to  ensure  that  the  correct   information   is furnished.  If the Court in supplying the information  makes a mistake the responsibility of the litigant, though it does not  altogether cease, is at least shared by the Court.   If the  litigant  acts  on the faith of  that  information  the Courts  cannot hold him responsible for a mistake  which  it itself  caused.   There  is  no  higher  principle  for  the guidance  of  the Court than the one that no act  of  Courts should harm a litigant and it is the bounden duty of  Courts to see that if a person is harmed by a mistake of the  Court he should be restored to the position he would have occupied but for that mistake.  This is aptly summed up in the maxim: "Actus curiae neminem gravabit". In  the present case the Court could have ordered 150 Jang  Singh to make the deposit after obtaining a  certified copy  of the decree thus leaving it to him to find  out  the correct amount and make the correct deposit.  The Court  did not  do this.  The Court,, on the other hand, made an  order and through its clerk prepared a challan showing the  amount which  was required to be deposited. jang Singh carried  out the direction in the order and also implicit in the challan, to  the  letter.  There was thus an error committed  by  the Court  which the Court must undo and which cannot be  undone by  shifting the blame on jang Singh.  To dismiss  his  suit because  Jang  Singh  was also  partly  negligent  does  not exonerate the Court from its responsibility for the mistake. Jang  Singh  was  expected to rely upon the  Court  and  its officers and to act according to their directions.  That  he did  so promptly and fully is quite clear.   There  remains, thus, the wrong belief induced in his mind by the action  of the  Court  that all he had to pay was stated truly  in  the challan  and  for  this  error  the  Court  must  take  full responsibility and it is this error which the Court must set right  before  the suit of jang Singh can be ordered  to  be dismissed.   The  learned  single judge of  the  High  Court considered  the case as if it was one of extension of  time. He reversed the finding given by the District Judge that the application  made by Jang Singh did not mention  any  amount and  the  ice reported that only Rs’. 4950  were  due.   The learned single judge exceeded his jurisdiction there.  It is quite  clear that once the finding of the District judge  is accepted-and it proceeds on evidence given by jang Singh and the Execution Clerk-the only conclusion that can be  reached is  that jang Singh relied upon what the Court  ordered  and the  error,  if  any, was substantially the  making  of  the Court.  In these circumstances, following the  well-accepted principle  that  the act of Court should harm  no  one,  the District  Judge was right in reversing the decision  of  the Sub.  Judge,  Sirsa.  The District judge  was,  however,  in error in  151 holding  that the decree was "sufficiently  complied  with". That decree could only be fully complied with by making  the deposit  of  Re. 1 which the District judge  ought  to  have ordered. In  our opinion the decision of the learned single judge  of the High Court must be set aside.  The mistake committed  by the Court must be set right.  The case must go back to  that stage  when the mistake was committed by the Court  and  the appellant should be ordered to deposit the additional  rupee for payment to Bhola Singh.  If he fails to make the deposit within  the time specified by us his suit may  be  dismissed

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but  not before.  We may point out however that we  are  not deciding the question whether a Court after passing a decree for  re-emption  can extend the time  originally  fixed  for deposit  of  the decretal amount.  That  question  does  not arise here.  In view of the mistake of the Court which needs to be righted the parties are relegated to the position they occupied on January 6, 1958, when the error was committed by the  Court  which error is being rectified by  us  nunc  pro tune. The appeal is, therefore, allowed.  The appellant is ordered to  deposit  Re.1   within one month from the  date  of  the receipt of the record in the Court of the Sub-judge,  Sirsa. In  view  of the special circumstances of  this  case  there shall be no order about costs throughout. Appeal allowed. 152