Full Judgment Text
REPORTABLE
2024 INSC 374
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3990 of 2011
KANIHYA @ KANHI (DEAD) THROUGH LRS. … Appellant (s)
VERSUS
SUKHI RAM & ORS. … Respondent(s)
J U D G M E N T
Rajesh Bindal, J.
1. The case in hand is an example of a party suffering on
account of total casualness in dealing with the matter. An avoidable
litigation.
1 2
2. The challenge is to the order passed by the High Court in
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Review Application . By the said order the Review Application filed by
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the respondents was allowed. As a result, the earlier order passed by
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the High Court in revision was recalled. By the said order, the revision
Signature Not Verified
Digitally signed by
VARSHA MENDIRATTA
Date: 2024.05.03
15:54:09 IST
Reason:
1
Dated 26.10.2009
2
High Court of Punjab & Haryana at Chandigarh
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R.A. No.2-C-II of 2009
4
Dated 04.12.2008
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Civil Revision No.1645 of 1992
Page 1 of 17
filed by the present appellants was allowed, permitting them to make
good the deficit of ₹ 14/-.
3. The facts as available on record are that part of land
th
comprising of 1/4 share land in Khewat No.236 and Khatoni No.258
situated in Village Samchana, District Rohtak, Haryana, was sold by Jai
Singh, Jai Kishan, Randhir, Shamsher Singh sons of Balbir Singh son of
Dariyav Singh to Sukhi Ram, Ram Pal, Hari Om, Mahabir Singh
(respondents-defendants). The predecessor in-interest of the
appellants filed a suit for pre-emption. The same was decreed by the
Trial Court on 11.08.1988. The predecessor in-interest of the
appellants/plaintiffs was required to deposit a sum of ₹ 9,214/- minus
th
1/5 of the pre-emption amount already deposited, on or before
10.10.1988, failing which the suit shall stand dismissed.
3.1 Predecessor in-interest of the appellants filed an
application on 19.09.1988 along with Treasury Challan in triplicate,
seeking permission to deposit the amount as directed by the Trial
Court. On the application the Trial Court passed the order for deposit
of ₹ 7,600/-. It was claimed that the application and the challans were
handed over in original to the appellant(s). The amount was deposited
on the same day i.e. 19.09.1988.
Page 2 of 17
3.2 On 06.12.1988, an application was moved by the judgment-
debtor (defendant-respondent) seeking permission to withdraw the
amount deposited by the appellant-plaintiff on which a report was
submitted by the office on the same day. It was found that the amount
deposited by the appellant-plaintiff was less by ₹ 14/-.
3.3 On 23.02.1989 the judgment-debtor (defendant-
respondent) filed an application seeking dismissal of the suit on
account of non-compliance of the direction given in the judgment and
decree of the Trial Court, as there was failure on behalf of the
appellant-plaintiff to deposit full amount within the time granted by the
Trial Court. While the aforesaid application was pending, the
appellant-plaintiff filed an application on 05.03.1991 seeking
₹
permission of the court to deposit deficit amount of 14/-. Subsequent
to the filing of the aforesaid application, an application dated
25.05.1991 was also filed by the appellant-plaintiff seeking
condonation of delay in filing the application seeking permission to
make good the deficiency in deposit of the amount as per the decree
of the Trial Court.
3.4 Vide order dated 09.01.1992, the application filed by the
appellant seeking permission to deposit ₹ 14/- was dismissed by the
Trial Court. Aggrieved against the same, the appellants preferred
Page 3 of 17
Revision Petition before the High Court which was initially allowed on
04.12.2008. However, on a Review Application filed by the
respondents, the order passed by the High Court on 04.12.2008, was
recalled and Civil Revision No.1645 of 1992 was dismissed vide order
dated 26.10.2009. It is the aforesaid order which is under challenge in
the present appeal.
4. Impugning the aforesaid order, the learned counsel for the
appellants submitted that the appellants are illiterate. In the case in
hand, decree was passed in favour of the predecessor in-interest of the
appellants on 11.08.1988 and the time was granted for deposit of the
th
balance amount upto 10.10.1998 after reducing 1/5 of the amount
already deposited in court. Accordingly, an application was moved
seeking permission of the court to deposit the balance amount. On that
application, order was passed by the court directing deposit of ₹
7,600/- and the Treasury Challan was also annexed with the
application. Immediately, the amount was deposited. It was found that
there was an error in the calculation of the amount. As a result of which
the deposit was short by ₹ 14/-. It was not intentional but due to a
calculation error. Appellants cannot be said to be at default as even the
court also directed for deposit of ₹ 7,600/- instead of ₹ 7,614/-.
Page 4 of 17
4.1 An application was filed by the judgment-debtor
(respondent-defendant) for dismissal of the suit on account of the non-
deposit of the amount as per the decree within the time granted by the
court.
4.2 The Trial Court, without appreciating the facts and
circumstances of the case wrongly rejected the application moved by
the appellant-plaintiff seeking permission of the Court to deposit the
deficit amount of ₹ 14/-. The aforesaid order was challenged before
the High Court. Initially, the Revision Petition was allowed vide order
dated 04.12.2008. However, in the Review Application filed by the
respondent, the order passed in the Revision Petition was recalled and
the same was dismissed vide order dated 26.10.2009.
4.3 The Trial Court as well as the High Court have failed to
appreciate the issue that the court is empowered to extend the time for
deposit of the amount in case there was any error. In the case in hand
there was a bona fide error. The parties should not be made to suffer
on account of any error in the judicial proceedings. The amount was
too meagre. In support of the arguments, reliance was placed on the
Page 5 of 17
6
judgments of this Court in Johri Singh v. Sukh Pal Singh and Others
7
and Jang Singh v. Brij Lal and Others .
5. On the other hand, learned counsel for the respondents
submitted that the appellants having failed to comply with the terms of
the decree passed in their favour, do not deserve any relief from this
Court. The appellant-plaintiff had purchased the property by paying
the full market price. A suit for pre-emption was filed by the appellant-
plaintiff which was decreed. The decreetal amount was to be deposited
by 10.10.1988. The appellant-plaintiff moved an application before the
Trial Court along with pre-filled Treasury Challan seeking permission
to deposit ₹ 7,600/-. It was on that application moved by the appellant-
plaintiff, the court ordered for depositing of ₹ 7,600/-, which was
deposited by the appellant-plaintiff. The amount as such was not
calculated by the court as it was the duty of the appellant-plaintiff to
deposit the correct amount in terms of the decree, which was explicit.
5.1 On an application moved by the respondent-defendant for
withdrawal of the amount of ₹ 9,214/- in terms of the decree, the office
reported on 06.12.1988 that the amount deposited was merely
₹ 9,200/-. Immediately, thereafter an application was filed on
6
(1989) 4 SCC 403 : 1989 INSC 265
7
(1964) 2 SCR 145 : AIR 1966 SC 1631: 1963 INSC 42
Page 6 of 17
23.02.1989 by the respondent-defendant for dismissal of the suit on
account of the non-compliance of the terms of the decree by the
appellant-plaintiff. More than two years thereafter, the appellant-
plaintiff moved an application seeking permission to deposit the
balance amount of ₹ 14/- without explaining any reason for moving
such an application at a belated stage. More than two months
thereafter, an application was filed seeking condonation of delay in
deposit of the amount. Even that also did not contain any reason.
5.2 Vide order dated 09.01.1992, the Trial Court dismissed the
application filed by the appellant-plaintiff seeking leave to deposit
₹ 14/- on account of non-deposit of the whole amount within the time
permitted. The order passed by the Trial Court was challenged by the
appellants before the High Court. Initially, on a wrong premise the
High Court allowed the revision petition and set aside the order of the
Trial Court. However, there being error apparent on the record, the
Review Application filed by the respondents was allowed and after
recalling the earlier order passed in the Revision Petition, the High
Court dismissed the same.
5.3 There is no error in the order passed by the High Court.
Even if the time granted by the court for deposit of the amount can be
extended but there has to be sufficient reason for the same. In the case
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in hand, there is no reason, what to talk about sufficient reason. There
was no fault of the Trial Court as the order for deposit was passed on
the same line as was prayed for by the appellants.
6. We have heard learned counsel for the parties and perused
the paper book.
7. The respondents purchased the property in dispute from Jai
Singh, Jai Kishan, Randhir and Shamsher Singh sons of Balbir Singh son
of Dariyav Singh vide registered sale deed dated 06.08.1985. The
appellants filed a suit for possession by way of preemption claiming
that they being the co-sharers in the Joint Khewat had preferential right
to purchase the property. The suit was filed on 11.08.1986. The suit was
decreed on 11.08.1988. The appellants were directed to deposit a sum
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of ₹ 9,214/- minus 1/5 preemption amount already deposited, on or
before 10.10.1988 failing which the suit was to be dismissed with costs.
8. The appellants moved an application dated 19.09.1988
before the court seeking permission to deposit the sum due as per the
direction of the court. It was specifically mentioned in the application
that as per the decree the appellants were required to deposit a sum of
th
₹ 9,214/- less 1/5 already deposited along with the application.
Treasury Challan was also annexed mentioning the amount to be
Page 8 of 17
deposited by the appellants, i.e. ₹ 7,600/-. The court vide endorsement
in the application itself on 19.09.1988 permitted the appellants to
deposit ₹ 7,600/-. The amount was deposited by the appellants in the
bank on the same day.
9. The respondents moved an application seeking permission
to withdraw the amount deposited by the appellants in terms of the
decree. The report dt. 06.12.1988 was submitted by the registry, that
initially a sum of ₹ 1,600/- was deposited by the appellants on
09.09.1986 and subsequently after passing of a decree a sum of ₹
7,600/- was deposited on 19.09.1988. Immediately thereafter the
respondents moved an application dated 23.02.1989 before the court
for passing further order and for dismissal of the suit as the appellants
had failed to comply with the terms of the decree. The same was
directed to be put up on 20.03.1989, 07.04.1989, 19.04.1989 and
thereafter on 26.04.1989 for consideration. From the record, nothing is
available as to what happened to this aforesaid application after the
aforesaid date. Nothing is clearly evident regarding that from the
records.
10. Thereafter, at page 75 of the original record, there is
another application filed by the respondents with similar prayer. It was
directed by the court vide order dated 23.04.1990 to be put up on
Page 9 of 17
25.04.1990, then on 30.04.1990. On that date, notice was directed to be
issued to the other side for 12.05.1990. On the next date, the learned
counsel appearing for the non-applicant/appellants sought time to file
reply to the application. After seeking adjournment, reply was filed on
02.06.1990 taking the stand that the remaining amount was deposited
after obtaining prior permission of the court and whatever direction
was issued by the court the same was complied with. It was stated that
whatever amount was payable was deposited, however, if there is any
deficiency the appellants are ready to make the same good.
11. After filing of reply by the appellants the matter remained
under consideration before the court.
12. On 05.03.1991, the appellants filed an application before
the court seeking permission to deposit the balance sum of ₹ 14/- in
which notice was issued to the other side for 23.03.1991. While the
aforesaid application was pending, another application was filed by
the appellants on 25.05.1991 seeking condonation of delay in
depositing of ₹ 14/-. It was pleaded in the application that ₹ 14/-
remained unpaid due to clerical mistake. The mistake was not
intentional. Hence, delay be condoned.
Page 10 of 17
13. Finally, the application was taken up for consideration by
the court and vide order dated 09.01.1992 the same was rejected.
14. Against the aforesaid order, the appellants preferred
Revision Petition before the High Court, which was initially allowed
vide order dated 04.12.2008. The High Court noticed the argument
raised by learned counsel for the respondents therein namely the
respondents herein that in preemption matter the court cannot extend
the time for deposit of money. However, the Court went on to invoke
its inherent jurisdiction for correction of error of the court. The revision
was allowed. The appellants were granted time to deposit the balance
sum of ₹ 14/-. The respondents filed the Review Application against the
order of the High Court. The same was allowed and vide impugned
order dated 26.10.2009, the earlier order passed by the High Court on
04.12.2008 was recalled and the revision was dismissed.
15. As far as the position of law and the question whether the
court can extend the time for deposit of money in a pre-emption suit is
concerned, this court in Johri Singh’s case (supra) considered a
similar issue. In that case, the deposit was less by ₹ 100/-. The
application filed by the decree holder therein seeking permission to
deposit to make the deficiency good, after expiry of the time granted
by the court, was allowed. The order was upheld by this court. In para
Page 11 of 17
21, this court opined that the Trial Court in the decree only mentioned
a sum to be deposited by the decree holder minus the amount of “zare-
panjum”. The amount was not specified in the judgment. Error in
calculation occurred, as a result of which ₹ 100/- was deposited less.
The application filed by the decree holder therein with challan
annexed was allowed by the court without pointing out the error. After
deposit of the amount though little deficient, even the possession of the
property was delivered to the decree-holder. Relevant paras 20, 21, 25
and 26 are extracted below:
“20. In the third category of cases, namely, non-
deposit of only a relatively small fraction of the purchase
money due to inadvertent mistake whether or not caused
by any action of the court, the court has the discretion
under Section 148 CPC to extend the time even though
the time fixed has already expired provided it is satisfied
that the mistake is bona fide and was not indicative of
negligence or inaction as was the case in Jogdhayan
[(1983) 1 SCC 26 : (1983) 1 SCR 844] . The court will
extend the time when it finds that the mistake was the
result of, or induced by, an action of the court applying
the maxim “actus curiae neminem gravabit” — an act of
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the court shall prejudice no man, as was the case in Jang
Singh [AIR 1966 SC 1631 : (1964) 2 SCR 145] . While it
would be necessary to consider the facts of the case to
determine whether the inadvertent mistake was due to
any action of the court it would be appropriate to find that
the ultimate permission to deposit the challaned amount
is that of the court.
21. Proceeding as above, in the instant case we find
that the decree did not quantify the purchase money
having only said “Rs 41,082 less the amount of ‘zare
panjum’ ”. Of course, ‘certum est quod certum reddi
potest’— that is certain which can be rendered certain.
The amount of ‘zare-panjum’ was not specified. Parties do
not controvert that it was one fifth. But the amount was not
calculated by the court itself. Inadvertent error crept in
arithmetical calculation. The deficit of Rs 100 was a very
small fraction of the total payable amount of Rs 33,682
which was paid very much within the fixed time, and there
was no reason, except for the mistake, as to why he would
not have paid this Rs 100 also within time. The appellants'
application with the challan annexed was allowed by
Page 13 of 17
court officials without pointing out the mistake. The
amount was deposited and even possession of the
property was delivered to the appellant. The Senior
Subordinate Judge allowed the application made by
appellant in exercise of the discretion vested in him
apparently on the view that sufficient cause had been out
for non-deposit of Rs 100. This order, however, as seen
above, was set aside by the High Court in a civil revision
under Section 115 CPC.
xx xx xx
25. In this view of the matter there seems to be no
manner of doubt that the Senior Subordinate Judge had
jurisdiction to extend the time under Section 148 CPC on
sufficient cause being made out. The first condition
precedent to enable the High Court to exercise its
revisional jurisdiction under Section 115 CPC was,
therefore, lacking. Likewise, nothing has been brought to
our notice on the basis of which it could be said that the
discretion exercised by the Senior Subordinate Judge
was in breach of any provision of law or that he committed
any error of procedure which was material and may have
Page 14 of 17
affected the ultimate decision. That being so, the High
Court had no power to interfere with the order of the
Senior Subordinate Judge, however profoundly it may
have differed from the conclusions of that Judge on
questions of fact or law.
26. On the facts and circumstances of the case we
feel justified in allowing this appeal, setting aside the
impugned judgment of the High Court, and in restoring
that of the Senior Subordinate Judge allowing 10 days'
time to deposit the balance of Rs 100 exercising power
under Section 148 CPC on facts of the case. If the amount
has not already been deposited, it shall be deposited
within 30 days from today and the respondents shall
withdraw the same according to law. The appeal is
accordingly allowed, but under the facts and
circumstances of the case, without any order as to costs.”
16. The facts of the case in hand are identical. In the instant case
as well the balance amount to be deposited by the appellant was not
specified in the decree. The deficiency was only ₹ 14/-. The appellants
had already deposited ₹ 9,200/- including the preemption amount
already deposited. When the application was filed seeking permission
Page 15 of 17
to deposit the amount along with the Treasury Challan, the error was
not noticed by the Court. At the very first stage, in response to the
application filed by the respondents to pass appropriate order on
account of deficiency by the appellants to deposit the amount as
directed by the court, the appellants stated that in case there is any
deficiency, they are ready to make it good. The court could have
considered the same and passed appropriate orders. However, the
matter remained pending for this.
17. It is the pleaded case of the appellants in the application
filed for permission to deposit the deficit balance of ₹ 14/- dated
05.03.1991, that the applicant (late Kanihya, predecessor in-interest of
the appellants) is in possession of the property and mutation has
already been entered in his name in the revenue record.
18. In view of the aforesaid discussions, the present appeal
deserves to be allowed. Ordered accordingly. The impugned order
passed by the High Court and the court below are set aside. The
appellants are permitted to deposit a sum of ₹ 14/- to the court below
on or before 20.05.2024. The respondents shall be entitled to withdraw
the entire amount deposited in court, if not already done.
Page 16 of 17
19. Though, we are allowing the appeal but on account of error
on part of the appellants, the respondents were made to litigate for
decades together upto this Court. We deem it appropriate to
compensate them. Hence, we direct the appellants to pay a cost of ₹
1,00,000/- to the respondents. The amount shall be deposited in the
Trial Court within the time granted above, with liberty to the
respondents to withdraw the same.
……………………………….……………..J.
(RAJESH BINDAL)
……………………………….……………..J.
(PRASANNA BHALACHANDRA VARALE)
New Delhi
May 03, 2024.
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