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Kehar Singh Vs. Manga and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 766 of 1975
Judge
Reported inAIR1984P& H183
ActsCode of Civil Procedure (CPC), 1908 - Order 32, Rules 2 and 3
AppellantKehar Singh
RespondentManga and anr.
Cases Referred and Abdul Aziz Sk. Imam Musalman v. Sk. Amir Sk. Burham Musalman
Excerpt:
.....under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - , 1969, the suit as against him had become time barred and, therefore, the suit must fail on that. ' 4. on the other hand, learned counsel for the respondents submitted that the lower appellate court on appreciation of the evidence has come to the conclusion that the plaint was presented in the court of naib tehsildar jhaiar and the plaintiff has failed to prove that he was authorised by the district judge, rohtak to entertain the plaint in the absence of the..........to be guardian for the suit of such minor. thus it could not be successfully. argued that the suit filed on 17th dec., 1969 against har kishen will be deemed to have been filed on 22nd dec., 1969 when the guardian was appointed by the defendant with the permission of the court. the judgments relied upon by the learned counsel for the vendee-defendants relate to the cases where the plaintiff was a minor. it was in that situation it was held that the plaint will be deemed to have been filed on the date when the plaint was properly presented on behalf of the minor through the guardian. in this situation, the provisions of r. 2 of o. 32 were attracted. whereas in the case of defendant minor it is r. 3 of o. 32 which is applicable. in talib all shah's case (supra) it was bold that the.....
Judgment:

1. This is Plaintiff preemptor's second appeal whose suit has been dismissed by both the Courts below.

2. By means of a registered sale deed dated 18th Dec., 1968, Smt. Jeeto daughter of Sarup sold 8 bighas 11 biswas of land in favour of Mange and Hari Kishan defendants in equal shares for sate consideration of Rs. 9,000/-. Kehar Singh Plaintiff-preemptor claimed superior right of preemption on the ground that be was the vendor's father's real brother. Originally the suit was filed on 17th Dec., 1969. The vendees contested the suit inter alia on the ground that the plaintiff was not related to the vendor as claimed and that the suit was barred by time. If was also pleaded that Hari Kishan defendant was minor and he was wrongly used as a major and that at the time the amendment of the plaint was sought to sue him through guardian ad item on 22nd Dec., 1969, the suit as against him had become time barred and, therefore, the suit must fail on that. ground atone. The trial Court found that the plaintiff had a superior right of preemption as against the defendants. However, the suit was held to have been filed after limitation. The plea of the defendant-vendees that they were in cultivating possession as tenants under the vendor at the time of sale was negatived. Moreover, the defendant-vendees were held entitled to registration expenses et cetera in the amount of Rs. 1001/- in case the suit was to be decreed. However, in view of the finding on the question of limitation the suit was dismissed. In appeal, the learned Senior Subordinate Judge (with enhanced appellate powers) affirmed the said findings of the trial Court and thus maintained the decree of the trial Court dismissing the plaintiff's suit dissatisfied with the same the plaintiff has filed this second appeal in this Court.

3. The learned counsel for the appellant contended that the plaint was presented on 17th Dec., 1969 to the Reader of the Court because the Presiding Officer was on leave and he directed the counsel for the Plaintiff to present the same before the Naib Tehsildar who was competent to entertain the same. Thus, argued the learned counsel, the suit was filed within limitation and it could not be held to be barred by time because the Presiding officer entertained the same on 22nd Dec., 1969. Reference was made to Rule 7(c) of Chapter 1-B of the High Court Rules and Orders, Volume I, which is to the following effect:--

'The members of the ministerial establishment are strictly forbidden to receive petitions, plaints or other documents direct from lawyers and their clerks or from litigants except when the judge in on leave and no other Judicial Officer is incharge, of his current duties. District Judge should, however, invariably make arrangements for the reception of plaints and petitions, etc., by another officer of a Court when an officer is temporarily absent on leave, tour or otherwise. Where there is a single Judicial Officer at a station such as a Mofussil or outlying Court, arrangements should be made for the reception of plaints, petitions, documents etc. by the Tehsildar or the Naib Tehsildar in consultation with the Deputy Commissioner.'

4. On the other hand, learned counsel for the respondents submitted that the lower appellate Court on appreciation of the evidence has come to the conclusion that the plaint was presented in the Court of Naib Tehsildar Jhaiar and the plaintiff has failed to prove that he was authorised by the District Judge, Rohtak to entertain the plaint in the absence of the Presiding officer and thus the plaint will he deemed to have been filed on 22nd Dec., 1969 when it was presented to the Presiding Officer of the Court.

5. After hearing the learned counsel for the parties on this question, I am of the considered view that the plaintiff could not he allowed to suffer on account of the acts and omissions of the officer of the, Court. Admittedly, the Presiding Officer was on leave on 17th Dec., 1969. The plaint was presented to the Reader of the Court who directed the counsel for the plaintiff to present the same before the Naib Tehsildar. It has been admitted by the Reader of the Court who appeared as C. W. 1 that the endorsement made on the plaint on that day, is in his hand though the order is signed by the Naib Tehalidar. However, the Naib Tehaildar entertained the plaint hod it could not he successfully argued that the presentation before the Naib Tehaildar was not proper. In any case, if there was no formal order authorising the Naib Tehsildar by the District judge, the counsel for the plaintiff was directed by the Reader of to file the same before him in this situation, the plaintiff rightly presented the plaint and he could not be allowed to suffer on that account. It is the common case of the parties that if the plaint was rightly presented on 17th Dec., 1969, then the suit is within limitation.

6. Faced with the situation, learned counsel for the respondents vehemently contended that in any case when, the suit was filed on 17th Dec., 1969 one of-the vendee-defendants was a minor but he was sued without appointing any guardian. The application for amendment of the plaint was filed on 22nd Dec., 1969 which was allowed and, therefore, the suit qua the said minor Har Kishen will be deemed to have been filed on 22nd Dec., 1969 and in this situation, the suit is barred by time. Reference was made to Bhim Sain v. Harish Chander, 1971 Pun LJ 859 and Suraj Bhan v. Balwan Singh, AIR 1972 Punj 276.

7. On the other hand, learned counsel for the plaintiff-pre-emptor relied upon Talib All Shah V. Piarey Lal, AIR 1930 All 644 and Abdul Aziz Sk. Imam Musalman v. Sk. Amir Sk. Burham Musalman, AIR 1941 Nag 130.

8. Order 32 of the Civil P. C. deals with the suit by or against minor and persons of unsound mind. Rule 3 of O. 32 provides that where the defendant is minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit of such minor. Thus it could not be successfully. argued that the suit filed on 17th Dec., 1969 against Har Kishen will be deemed to have been filed on 22nd Dec., 1969 when the guardian was appointed by the defendant with the permission of the Court. The judgments relied upon by the learned counsel for the vendee-defendants relate to the cases where the plaintiff was a minor. It was in that situation it was held that the plaint will be deemed to have been filed on the date when the plaint was properly presented on behalf of the minor through the guardian. In this situation, the provisions of R. 2 of O. 32 were attracted. Whereas in the case of defendant minor it is R. 3 of O. 32 which is applicable. In Talib All Shah's case (supra) It was bold that the appointment of guardian and item of minor defendant must always be come time after the institution of the suit and the suit must be deemed to have been instituted against the minor on the date when it was filed, even though on that date the guardian-ad-litem was not or could not have been appointed, Similar was the view taken in Abdul Aziz Sk. Immn Musalman's case (supra). Under the circumstances, it could not be successfully argued that the suit against Har kishen minor defendant will be deemed to have been filed on 22nd Dec., 1969. Even both the Courts below found the same against the vendee-defendants.

9. No other point has been. argued.

10. The finding of the, Courts below on he other issues, were not contested Consequently the appeal succeeds the judgment and decree of the Courts below are set aside and the plaintiff's suit is decreed on payment of Rs. 10,001/-, Rs; 1,001/- being registration expenses etc. as found by the, trial Court. The said amount deducting 1/5th money already deposited will be deposited on or before 16th March, 1984. failing which the plaintiff's suit shall stand dismissed. There shall be no order as to costs.

11. Appeal allowed.


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