KANIHYA @ KANHI (DEAD) THROUGH LRS.versusSUKHI RAM & ORS.

                 [2024] 5 S.C.R. 885 : 2024 INSC 374

              Kanihya @ Kanhi (Dead) Through LRS.
                               v.
                       Sukhi Ram & Ors.
                      (Civil Appeal No. 3990 of 2011)
                                03 May 2024
  [Rajesh Bindal* and Prasanna Bhalachandra Varale, JJ.]

                           Issue for Consideration
       Whether the High Court erred in not exercising the discretion to
       extend the time for deposit under Section 148 of the Code of Civil
       Procedure, 1908 in a pre-emption suit.

                                 Headnotes†
       Section 148 of the Code of Civil Procedure, 1908 – Extension
       of time for deposit in pre-emption suit – The court can allow
       such an extension when there is a bona fide mistake and the
       deficiency is minor – law laid down in Johri Singh v. Sukh
       Pal Singh and Others, [1989] Supp. 1 SCR 17 – Followed –
       Non-deposit of a relatively small fraction of money due to
       inadvertent mistake – Court can exercise discretion under
       Section 148 CPC to extend the time even after the time fixed
       has expired.
       Held: The Supreme Court reaffirmed that courts have the
       jurisdiction to extend the time for deposit of money in a pre-
       emption suit under Section 148 of the Code of Civil Procedure,
       1908. Such an extension can be allowed when there is a bona
       fide mistake and the deficiency is minor. The Supreme Court
       held that the facts were similar to Johri Singh v. Sukh Pal
       Singh and Others [1989] Supp. 1 SCR 17 case wherein it
       was held that non-deposit of a relatively small fraction of the
       purchase money due to inadvertent mistake, allows the court
       discretion under Section 148 CPC to extend the time even after
       the time fixed has expired, provided the mistake is bona fide
       and not indicative of negligence or inaction. Accordingly, the
       Supreme Court set aside the impugned order of the High Court,
       allowing the appellants to deposit the balance amount of ₹14/-
       by 20.05.2024. [Paras 15-18]



* Author
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       Costs for prolonged litigation – Appellants to pay costs to the
       respondents – Respondents were compelled to litigate for an
       extended period due to the appellants’ minor error.
       Held: The Supreme Court directed the appellants to pay costs of ₹
       1,00,000/- to the respondents, recognizing that the respondents were
       compelled to litigate for an extended period due to the appellants’
       minor error. This amount was to be deposited in the Trial Court
       within the stipulated time for the respondents to withdraw. [Para 19]

                                Case Law Cited
       Johri Singh v. Sukh Pal Singh and Others [1989] Supp. 1 SCR 17;
       Jang Singh v. Brij Lal and Others [1964] 2 SCR 145 – followed.

                                   List of Acts
       Code of Civil Procedure, 1908.

                               List of Keywords
       Extension of time; Pre-emption suit; Deposit; Bonafide; Section
       148 CPC.

                              Case Arising From

       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3990 of 2011
       From the Judgment and Order dated 26.10.2009 of the High Court
       of Punjab & Haryana at Chandigarh in RA No.2-C11 of 2009 in CR
       No. 1645 of 1992

                           Appearances for Parties

       J. B. Mudgal, Ms. Vanshika Mudgil, R. C. Kaushik, Advs. for the Appellants.
       S.P. Laller, Anil Hooda, Priyank, Rameshwar Prasad Goyal, Advs.
       for the Respondents.

                  Judgment / Order of the Supreme Court

                                   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.
[2024] 5 S.C.R.                                                         887

        Kanihya @ Kanhi (Dead) Through LRS. v. Sukhi Ram &Ors.


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 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.
      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


1    Dated 26.10.2009
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
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            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 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/-.
       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.
[2024] 5 S.C.R.                                                          889

        Kanihya @ Kanhi (Dead) Through LRS. v. Sukhi Ram &Ors.


      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 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


6    [1989] Supp. 1 SCR 17 : (1989) 4 SCC 403 : 1989 INSC 265
7    [1964] 2 SCR 145 : AIR 1966 SC 1631: 1963 INSC 42
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            was merely ₹ 9,200/-. Immediately, thereafter an application was
            filed on 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 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
[2024] 5 S.C.R.                                                          891

      Kanihya @ Kanhi (Dead) Through LRS. v. Sukhi Ram &Ors.


     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
     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
    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
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       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.
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
       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
[2024] 5 S.C.R.                                                          893

      Kanihya @ Kanhi (Dead) Through LRS. v. Sukhi Ram &Ors.


     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 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 court
           officials without pointing out the mistake. The amount
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          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 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
[2024] 5 S.C.R.                                                            895

         Kanihya @ Kanhi (Dead) Through LRS. v. Sukhi Ram &Ors.


     already deposited. When the application was filed seeking permission
     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.
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.

     Result of the case: Appeal allowed.



     †
         Headnotes prepared by: Ankitesh Ojha, Hony. Associate Editor
                                 (Verified by: Abhinav Mukerji, Sr. Adv.)