Jang Singh Vs. Brijlal & Ors
 INSC 42 (20 February 1963)
20/02/1963 HIDAYATULLAH, M.
SINHA, BHUVNESHWAR P.(CJ) SHAH, J.C.
CITATION: 1966 AIR 1631 1964 SCR (2) 145
D 1970 SC1041 (36) RF 1988 SC1531 (189) R
1989 SC2073 (3,10,13,18) D 1992 SC2084 (28)
Pre-emption--Deposit of one rupee less in
Court under order of court--Litigant not to suffer--Act of Court should harm no
The appellant filed a suit for pre-emption
for the sale of certain lands against the first respondent. A compromise decree
was passed in favour of the appellant and lie was directed to deposit Rs.
5951/- less Rs. 1000/- already deposited. The suit was to stand dismissed with
costs if the deposit was not. made punctually. The appellant made an
application to the Subordinate judge for making the deposit of the balance of'
the amount. The clerk of the Court prepared a challan in duplicate and handed
it over to the appellant. In the challan Rs. 4950/- were mentioned instead of
Rs. 4951.The money was deposited by the appellant.
Later on, it was pointed out that the deposit
was short by Re. 1. The Subordinate judge accepted the objection and set aside
the decree for pre-emption passed in favour of the appellant. The order of the
Subordinate judge was set aside by the District judge. It was held that the
Court and its clerk made a mistake by ordering the appellant to deposit an
amount which was less by Re. 1,/- and hence the appellant was excused in as
much as the responsibility was shared by the Court. The decision of the
District judge was set aside by the High Court and the appellant came to this
Court by special leave.
Held, that the decision of the District judge
was correct and the appellant was ordered to deposit Re. 1/- in the court of
the Subordinate Judge. The appellant was an illiterate person and the Court and
its officers had largely contributed to the error committed by him. It is true
that the litigant must be vigilant and take care, but where a litigant goes to
the court and asks for its assistance, so that this obligation under a decree
might be fulfilled by him strictly, it is incumbent on the Court, if it does
not leave the litigant to his. own devices to ensure that the correct
information is furnished', If the Court in supplying the information makes a
mistake, the responsibility of the litigant, though it does not altogether
cease, 146 Is at least shared by the Court. If the litigant acts on the faith
of that information, the court cannot hold him responsible for a mistake which
it itself causes. No act of Court should harm a litigant and it is the bounden
duty of Courts to see that if a person is harmed by a mistake of Court, he
should be restored to the position lie would have occupied but for that
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 687 of 1962.
Appeal -by special leave from the judgment
and decree dated December 1, 1961, of the Punjab High Court at Chandigarh, in
Execution Second Appeal No. 586 of 1960.
K. L. Mehta, for the appellant.
K. L. Gosain, K. K. Jain and P. C. Khanna,
for the respondents Nos. 2 to 6.
1963. February 20. The judgment of the Court
was delivered by HIDAYATULLAH J.-This appeal with the special leave of this
Court arises out of execution of a decree for pre-emption passed in favour of
the appellant Jang Singh. By the order under appeal the High Court has held
that jang Singh had not deposited the full amount as directed by the decree
within the time allowed to him and his suit for pre-emption must therefore be
ordered to be dismissed and also the other proceedings arising there from as
there was no decree -of which he could ask execution.
The facts of the case are simple. Jang Singh
filed a suit for pre-emption of the sale of certain lands against Brij Lal the
first respondent (the vendor), and Bhola Singh the second respondent (the
vendee) in the Court of Sub-judge 1st Class, Sirsa. On October 25, 1957, a
compromise decree was passed in favour of jang Singh and he was directed to 147
deposit Rs. 5951 less Rs. 1000 already deposited by him by May 1, 1958. The
decree also ordered that on his failing to make the deposit punctually his suit
would stand dismissed with costs. On January 6, 1958, jang Singh made an
application to the Sub judge, Sirsa, for making the deposit of the balance of
the amount of the decree. The Clerk of the Court, which was also the executing
Court, prepared a challan in duplicate and handed it over with the application
to jang Singh so that the amount might be deposited in the Bank. In the challan
(and in the order passed on the application, so it is alleged) Rs. 4950 were
mentioned instead of Rs. 4951. jang Singh took the challan and the application
and made the deposit of the wrong balance the same day and received one copy of
the challan as an acknowledgement from the Bank.
In May, 1958, he applied for and received an
order for possession of the land. It was reported by the Naib Nazir that the
entire amount was deposited in Court. Bhola Singh then applied on May 25, 1958,
to the Court for payment to him of the amount lying in deposit and it was
reported by the Naib Nazir on that application that Jang Singh had not
deposited the correct amount and the deposit was short by one rupee. Bhola
Singh applied to the Court for dismissal of jang Singh's suit, and for recall
of all the orders made in jang Singh's favour. The Sub Judge, Sirsa, accepted
Bhola Singh'sapplication observing that in pre-emption cases a Court had no
power to extend the time fixed by the decree for payment of the price and the
preemptor by his failure to deposit the correct amount had incurred the
dismissal of the suit under the decree. He ordered also the reversal of the
earlier orders passed by him in favour of Jang Singh and directed that
possession of the fields be restored to the opposite party.
jang Singh appealed against that order. The
148 District judge recorded the evidence of the Execution Clerk, the Revenue
Accountant, Treasury ice and jang Singh. He also examined Bhola Singh. the
learned District judge held that the record of the case showed that on the day
the case was compromised and the decree was passed Jang Singh was not present
and did not know the exact decretal amount. The learned District judge assumed
that it was the duty of jang Singh to be punctual and to find out the exact
amount before he made the deposit. He, however, held that as jang Singh had
approached the Court with an application intending to make the deposit to be
ordered by the Court, and the Court and its clerk made a mistake by ordering
him to deposit an amount which was less by one rupee, jang Singh was excused in
as much as the responsibility was shared by the Court.
The learned District Judge, therefore, held
that this was a case in which jang Singh deserved to be relieved and he came to
the conclusion that jang Singh was prevented from depositing the full amount by
the act of the Court. He concluded "thus the deposit made was a sufficient
compliance with the terms of the decree". The order of the Sub Judge,
Sirsa dismissing the suit was set aside.
Bhola Singh appealed to the High Court. This
appeal was heard by a learned single.judge who was of the opinion that the
decree which was passed was not complied with and that under the law the time
fixed under the decree for the payment of the decretal amount in pre-emption
cases could not be extended by the Court. He also held that the finding that
the short deposit was due to an act of the Court was unsupported by evidence.
He accordingly set aside the decision of the learned District judge and
restored that of the Sub-judge, Sirsa.
The facts of the case almost speak for
themselves. A search was made for the application on 149 which the order of the
Court directing a deposit of Rs. 4950 was said to be passed. That application
remained untraced though the District Judge adjourned the case more than once.
It is, however, quite clear that the challan
was prepared under the Court's direction and the duplicate challan prepared by
the Court as well as the one presented to the Bank have been produced in this
case and they show the lesser amount. This challan is admittedly prepared by
the Execution Clerk and it is also an admitted fact that Jang Singh is an
illiterate person. The Execution Clerk has deposed to the procedure which is
usually followed and he has pointed out that first there is a report by the
Ahmed about the amount in deposit and then an order is made by the Court on the
application before the challan is prepared. It is, therefore, quite clear that
if there was an error the Court and its officers largely contributed to it. It
is no doubt true that a litigant must be vigilant and take care but where a
litigant goes to Court and asks for the assistance of the Court so that his
obligation-, under a decree might be fulfilled by him strictly, it is incumbent
on the Court, if it does not leave the litigant to his own devices, to ensure
that the correct information is furnished. If the Court in supplying the
information makes a mistake the responsibility of the litigant, though it does
not altogether cease, is at least shared by the Court. If the litigant acts on
the faith of that information the Courts cannot hold him responsible for a
mistake which it itself caused. There is no higher principle for the guidance
of the Court than the one that no act of Courts should harm a litigant and it
is the bounden duty of Courts to see that if a person is harmed by a mistake of
the Court he should be restored to the position he would have occupied but for
that mistake. This is aptly summed up in the maxim:
"Actus curiae neminem gravabit".
In the present case the Court could have
ordered 150 Jang Singh to make the deposit after obtaining a certified copy of
the decree thus leaving it to him to find out the correct amount and make the
correct deposit. The Court did not do this. The Court,, on the other hand, made
an order and through its clerk prepared a challan showing the amount which was
required to be deposited. jang Singh carried out the direction in the order and
also implicit in the challan, to the letter. There was thus an error committed
by the Court which the Court must undo and which cannot be undone by shifting
the blame on jang Singh. To dismiss his suit because Jang Singh was also partly
negligent does not exonerate the Court from its responsibility for the mistake.
Jang Singh was expected to rely upon the
Court and its officers and to act according to their directions. That he did so
promptly and fully is quite clear. There remains, thus, the wrong belief
induced in his mind by the action of the Court that all he had to pay was
stated truly in the challan and for this error the Court must take full
responsibility and it is this error which the Court must set right before the
suit of jang Singh can be ordered to be dismissed. The learned single judge of
the High Court considered the case as if it was one of extension of time.
He reversed the finding given by the District
Judge that the application made by Jang Singh did not mention any amount and
the ice reported that only Rs'. 4950 were due. The learned single judge
exceeded his jurisdiction there. It is quite clear that once the finding of the
District judge is accepted-and it proceeds on evidence given by jang Singh and
the Execution Clerk-the only conclusion that can be reached is that jang Singh
relied upon what the Court ordered and the error, if any, was substantially the
making of the Court. In these circumstances, following the well-accepted
principle that the act of Court should harm no one, the District Judge was
right in reversing the decision of the Sub. Judge, Sirsa. The District judge
was, however, in error in 151 holding that the decree was "sufficiently
That decree could only be fully complied with
by making the deposit of Re. 1 which the District judge ought to have ordered.
In our opinion the decision of the learned
single judge of the High Court must be set aside. The mistake committed by the
Court must be set right. The case must go back to that stage when the mistake
was committed by the Court and the appellant should be ordered to deposit the
additional rupee for payment to Bhola Singh. If he fails to make the deposit
within the time specified by us his suit may be dismissed but not before. We
may point out however that we are not deciding the question whether a Court
after passing a decree for re-emption can extend the time originally fixed for
deposit of the decretal amount. That question does not arise here. In view of
the mistake of the Court which needs to be righted the parties are relegated to
the position they occupied on January 6, 1958, when the error was committed by
the Court which error is being rectified by us nunc pro tune.
The appeal is, therefore, allowed. The
appellant is ordered to deposit Re.1 within one month from the date of the
receipt of the record in the Court of the Sub-judge, Sirsa.
In view of the special circumstances of this
case there shall be no order about costs throughout.