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PETITIONER: SULLEH SlNGH & ORS.

       Vs.

RESPONDENT: SOHAN LAL & ANR.

DATE OF JUDGMENT02/09/1975

BENCH: RAY, A.N. (CJ) BENCH: RAY, A.N. (CJ) MATHEW, KUTTYIL KURIEN CHANDRACHUD, Y.V.

CITATION:  1975 AIR 1957            1976 SCR  (1) 598  1975 SCC  (2) 505  CITATOR INFO :  R          1989 SC2073  (12)

ACT:      Code of  Civil Procedure, Act V of 1908, order 20, Rule 14-Pre-emption- Pre-emptor’s suit, if stood dismissed on his failure to  deposit pre-emption  price within the time fixed by Trial Court.

HEADNOTE:      The  vendors  sold  the  suit  land,to  the  appellants (vendees) by  a registered  deed of  sale for  Rs. 43,000/-. The’ respondents  filed the  suit- for  possession  by  pre- emption of  the land  in payment  of  Rs.  30,000/-  on  the allegations that   the  respondents were on the date of sale tenants of  the land  under the vendors. I They also alleged that the  sale took  place for Rs. 30,000/- only and the re- maining amount  was fictitiously  mentioned in  the deed  of sale. The suit was - ’ dismissed on the ground that one suit on behalf  of the  four plaintiffs  who    were  tenants  of different parts of the land, was not maintainable. On appeal the suit  was remanded for re-trial. At the trial on remand, two plaintiffs-  withdrew from  the suit.  The  trial  court directed the  remaining two plaintiffs respondents Sohan Lal and  Nathi   to  deposit   Rs.  6,300/_   and  Rs.   5.670/- respectively on  or before  1 April,  1969 less 1/5th of the pre-emption amount  already deposited  by  them.  The  Trial Court gave  the respondent Sohan Lal a decree for possession by pre-emption  in respect  of Killa Nos. 14/1 . 17 and 18/1 of Rectangle  37. The  plaintiffs-respondents, aggrieved  by the order  filed an  appeal alleging  that the decree should have been  Passed for  the whole  of the  land  because  the respondent Sohan Lal was also a tenant of Killa , -No. 24 of Rectangle 37  under  the  vendors.  On  29  July  1969.  the Additional District  Judge passed a decree for possession by pre-emption in  favour of  respondent Sohan Lal of Killa No. 24 of Rectangle 37 on payment of Rs. 9,100/- and he was also directed to  deposit this  amount on  or before  20  August, 1969. The  decree in  favour of Nathi was maintained without charge. The appellants filed an appeal before the High Court and it  was contended before the High Court that respondents did not  deposit the  decretal amount  by l  April, 1969  as

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directed by  the Trial  Court and,  therefore, the  suit was liable to be dismissed under order 20 Rule 14 of the Code of Civil Procedure.  The High  Court accepted the appeal of the appellants against  the plaintiff  Nathi and  dismissed  the appeal against  the plaintiff-respondent Sohan Lal. The High Court said  that since  the lower  appellate  court  granted Sohan Lal   decree  for one more Killa and directed that the amount would  be Rs.  9,100/-.  the respondent was to comply with the  appellate decree  and not  the decree of the Trial Court.      Allowing the appeal by special leave, ^      HELD: (1)  The directions  given by the Trial Court are mandatory under the provisions contained in order 20 Rule 14 of the  Code of  Civil Procedure. A decree in terms of order 20 Rule  14, imposes  obligations on both sides and they are so conditioned  that performance  by one  is conditional  on performance bt the other. [600E-F, G].      Naguba Appa  v. Namdey reported in A.I.R. l 954 S.C. 50 and  Dattaraya   S/o  Keshav   Tawalay  v.  Shaikh  Ali  and Anr.[1969] 2 S.C.R. 514 relied on.      (ii) It  is  only  if  the  plaintiffs-respondents  had obtained  another  order  from  the  lower  appellate  Court granting any  order of  stay that  the lower appellate court might have  considered the  passing of  appropriate order in favour of  pre-emptors. The  High Court  should have allowed the appellants’  appeal and  not  made  any  distinction  in dismissing plaintiffs  respondent Nathi’s  suit and allowing Plaintiff-respondent Sohan Lal any extension of time to make the payment. [601F-G] 599

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 496 of 1974.      Appeal by  Special Leave  from the  Judgment and  order dated the 2nd May, 1973 of the Punjab and Haryana High Court in R.S.A. No 1469 of 1969.      O. P. Sharma for the appellant.      R. N. Dikshit for Respondent No. 1.      The Judgment of the Court was delivered by      RAY, C.J.-This  appeal is  by special  leave  from  the judgment dated   2 May,  1973 of the Punjab and Haryana High Court.      The appellants  are venders  of the  land in  suit. The vendors sold  the land to the appellants for Rs. 43,000/- on 26 August,  1965. The  transaction was by registered deed of sale.      The respondents  filed this suit for possession by pre- emption  of   the  land   in  payment  of  Rs.  30,000/-  on allegations that  the respondents  were on  the date of sale tenants of  the land  under  the  vendors.  The  respondents alleged that their right of pre-emotion was superior to that of the  vendees. They  also alleged that the sale took place for Rs.  30,000/- only  and the  remaining was  fictitiously mentioned in the deed of sale. The suit was dismissed on the ground that  one suit  on behalf of the four plaintiffs, who were tenants  of  different  parts  of  the  land,  was  not maintainable.      On appeal the suit was remanded for re-trial.      At the  trial on  remand, two  plaintiffs withdrew from the  suit.  The  trial  court  directed  the  remaining  two plaintiffs-respondents Sohan  Lal and  Nathi to  deposit Rs.

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6,300/- and  Rs. 5,670,’- respectively on or before 1 April, 1969 less  1/5th of the pre-emotion amount already deposited by them.  The Trial  Court gave  the respondent  Sohan Lal a decree for  possession by  pre-emotion in  respect of  Killa Nos. 14/1.  17 and  18/1 of  Rectangle 37.  The  plaintiffs- respondents aggrieved by the order. filed an appeal alleging that the  respondent Sohan  Lal was a tenant of Killa No. 24 under the  vendors and the decree should have been passed in their favor for the whole of the land and that decree should have been  passed in favour of Sohan Lal in respect of Killa No. 24  of Rectangle  37. The other ground in the appeal was that the  decree should  have been  passed in  favour of the plaintiffs-respondents for whole  of the land.      The Additional District Judge on 29 July, 1969 passed a decree  for.   possession  by   pre-emotion  in   favour  of respondent Sohan  Lal on  payment of  Rs. 9,100-  and he was directed to  deposit this  amount in  Court on  or before 20 August, 1969.  The Addition  District Judge  passed a decree for possession  by pre-emption in favour of respondent Sohan Lal of  Killa No.  24 of  Rectangle 37. The decree in favour the respondent Nathi was maintained without change.      Thereafter, the  appellants preferred  an appeal in the High  Court  alleging  that  the  decision  that  plaintiff- respondent Sohan Lal was also a 600 tenant of Killa No. 24 was incorrect and should be set aside and the  decree of  the Trial  Court should be restored. The appellants also  prayed that the decree in favour of the two plaintiffs-respondents Sohan Lal and Nathi were liable to be set aside.      The appellants  contended before  the High  Court  that respondents Sohan Lal and Nathi did not deposit the decretal amount by  1 April, 1969 as directed by the Trial Court and, therefore, the  suit was  liable to  be dismissed  under the provisions contained  in order  20 Rule  14 of  the Code  of Civil Procedure.      The other  contention of the appellants before the High Court was that the plaintiff-respondent Sohan Lal should not have been granted pre-emption rights in respect of Killa No. 24.      The High  Court on  2 May,  1973 accepted the appeal of the appellants  against the  plaintiff: Nathi  and dismissed the appeal  against the  plaintiff-respondent Sohan Lal. The High Court said that since the lower appellate court granted Mohan Lal  decree for  one more  Killa and directed that the amount would  be Rs.  9,100/-, the  respondent was to comply with the  appellate decree  and not  the decree of the Trial Court.      The appellants  contended that  neither Sohan  Lal  nor Nathi deposited  the amount in accordance with the decree of the Trial  Court on  or before  l April,  1969 and  the suit should have  been dismissed  on that  ground alone  and  the appeal should  have been  allowed. The  appellants contended that the lower appellate court had no power and jurisdiction to give  further time to Sohan Lal to deposit the preemption amount by an extended date. r.      This Court  in Naguba  Appa v.  Namdev(1) held that the directions given  by the Trial Court are mandatory under the provisions contained  in order  20 Rule  14 of  the Code  of Civil Procedure.  This Court  in Naguba  Appa’s case (supra) said that  "mere filing  of an  appeal does  not suspend the decree of  the Trial Court and unless that decree is altered in any  manner by  the Court  of Appeal,  the pre-emptor  is bound to comply with that direction’‘.      In Dattaraya  s/o  Keshav  Tawalay  v.  Shaikh  Mahboob

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Shaikh Ali  & Anr.(2) this Court said that a decree in terms of order  20 Rule  14, imposes obligations on both sides and they  are   so  conditioned   that  performance  by  one  is conditional on  performance by  the other. To illustrate, if the defendants  by obtaining  the stay  order from  the High Court  relieve  themselves  of  the  obligation  to  deliver possession of  the  properties  the  plaintiff-decree-holder must also  be deemed thereby to be relieved of the necessity of depositing the money so long as the stay order continues.      In the  present case, the lower appellate court did not grant any stay to the plaintiffs-respondents. In view of the fact that  the plaintiffs  respondents did  not deposit  the amount as directed by the Trial Court      (1) A.I.R. 1954 S.C. 50.        (2) [1969] 2 S.C.R 514. 601 on or before 1 April, 1969, it became mandatory on the lower appellate court  by reason  of the  ruling of  this Court in Naguba  Appa’s   case  (supra)  to  dismiss  the  suit.  The observations of  this Court  in Naguba  Appa’s case  (supra) that the  pre-emptor is  bound to comply with the directions of the  Trial Judge  unless that  decree is  altered in  any manner by  a Court  of Appeal  do not  mean that  where  the deposit is not made in accordance with the directions of the Trial Court,  the appellate  court can  extend the  time for payment. Thereafter,  the lower appellate court was in error in extending the time for payment till 2 . August, 1969.      In Naguba  Appa’s case  the pre-emption  money was  not deposited within  the time  fixed in  the decree.  The  pre- emptor made  an application  to the  Court  for  making  the deposit without disclosing that the time fixed by the decree had elapsed. The application was allowed The defendant, when apprised of  the situation, made an application to the Court to the  effect that  the plaintiff’s suit stood dismissed on account of  his failure  in making  the deposit in time. The Trial Judge  held that the pre-emption money not having been paid within  the time  fixed in  the decree  the suit  stood dismissed. On  appeal the  decision was set aside. On second appeal it  was restored  and it was held that the suit stood dismissed under  order 20,  Rule 14 Civil Procedure Code. An appeal was  preferred against the judgment of the High Court this Court  Held that  the High  Court was  right in holding that the  pre-emptor’s suit stood dismissed by reason of his default in  not depositing  the pre-emption price within the time fixed in the Trial Court’s decree.      The  contention   of  the  appellants  that  the  lower appellate court  was wrong in extending the time for payment is correct because the failure of the plaintiffs-respondents to deposit  the amount  in terms of the-Trial Court’s decree would result  in pre-emptor’s’  suit standing  dismissed  by reason of  their default  in not  depositing the pre-emption price. The  contention of the appellants that the High Court was wrong  in not  setting aside  the order  of extension of time passes  by the  lower appellate court is correct. It is only if  the plaintiffs-respondents  had paid  the  decretal amount within  the time granted by the Trial Court or if the plaintiffs-respondents had  obtained another  order from the lower appellate  Court granting  any order  of stay that the lower appellate  court might  have considered the passing of appropriate order  in favour  of pre-emptors. The High Court should have allowed the appellant-s’ appeal and not made any distinction in  dismissing plaintiff-respondent Nathi’s suit and allowing plaintiff-respondent Sohan Lal any extension of time to  make the  payment. Further,  it  appears  that  the plaintiff respondent Sohan Lal did not pay the amount.      For these  reasons the  appeal is accepted. Suit of the

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plaintiffs  respondents  is-dismissed.  The  appellants  are entitled to costs.                    V.M.K.Appeal allowed. 8-L925upCI/75 602