Kanihya @ Kanhi (D) Th:Lrs vs Sukhi Ram

2024 INSC 374 REPORTABLE

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)

JUDGMENT

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.

2. The challenge is to the order1 passed by the High Court2 in

Review Application3. By the said order the Review Application filed by

the respondents was allowed. As a result, the earlier order4 passed by

the High Court in revision5 was recalled. By the said order, the revision

Signature Not Verified Digitally signed by Dated 26.10.2009 1 VARSHA MENDIRATTA Date: 2024.05.03 15:54:09 IST Reason: 2 High Court of Punjab & Haryana at Chandigarh 3 R.A. No.2-C-II of 2009 4 Dated 04.12.2008 5 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

comprising of 1/4th 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

1/5th 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

balance amount upto 10.10.1998 after reducing 1/5th 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 judgments of this Court in Johri Singh v. Sukh Pal Singh and Others6

and Jang Singh v. Brij Lal and Others7.

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

Page 7 of 17 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

of ₹ 9,214/- minus 1/5th 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

₹ 9,214/- less 1/5th 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

Page 12 of 17 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.

Page 17 of 17