S. 24---pre-emption suit ---Plaint---Inadvertent error in mentioning the actual sale consideration of property---Bona fide mistake---Absence of ................

  2016 SCMR 40 SUPREME-COURT
Side Appellant : WASAL KHAN
Side Opponent : Dr. NIAZ ALI KHAN

S. 24---pre-emption suit ---Plaint---Inadvertent error in mentioning the actual sale consideration of property---Bona fide mistake---Absence of mala fides---No undue benefit gained by pre-emptor---Pre-emptor in his plaint inadvertently mentioned the sale consideration paid by vendee to vendor as Rs. 14,00,000, instead of the actual figure of Rs.14,40,000 mentioned in the mutation---Trial Court ordered pre-emptor to deposit one-third of the sale consideration of the property in court---Pre-emptor deposited in court 1/3rd of the amount shown in the plaint i.e. one-third of Rs. 14,00,000---Vendee took the objection that pre-emptor made a short deposit in the court, as the amount to be deposited should have been 1/3rd of Rs. 14,40,000 mentioned in the mutation---Trial Court dismissed the pre-emption suit for non-compliance with order of the court to deposit 1/3rd of the actual sale consideration in court---Appellate Court allowed the pre-emptor to make good the deficiency by depositing the remaining amount in court and remanded the case to Trial Court---Validity---Where a court wanted to impose a penalty like dismissal of suit on account of deposit of deficient amount, then it should be clearly established that it was the pre-emptor who deliberately committed the default and it was not a bona fide mistake---In the present case, due to mistake of fact the draftsman/lawyer (for pre-emptor) inadvertently without any mala fide intent mentioned the sale consideration as Rs.14,00,000 , instead of Rs.14,40,000---For the correction of the same, the, pre-emptor promptly applied to the Trial Court for amendment of the plaint, which fact showed his bona fide intention---Pre-emptor had not gained any undue benefit because he had sincerely and faithfully complied with the initial court order by depositing a huge amount of Rs.4,66,670 thus by not depositing the additional amount of Rs.13,330, he could not be held to be in deliberate non-compliance with the court order---Trial Court had not specifically directed pre-emptor to deposit 1/3rd of the sale consideration mentioned in the mutation---Court was duty bound to clearly tell the plaintiff/pre-emptor that he was required to deposit 1/3rd of the sale consideration shown in the sale deed or mutation etc.---Once a wrong was committed by the Trial Court causing prejudice to the pre-emptor, then, the pre-emptor could not be visited with penalty of dismissal of his suit ---Appellate Court had rightly set-aside judgment of Trial Court and allowed the pre-emptor to make good the deficiency by depositing the remaining amount in court---Supreme Court directed that if the pre-emptor had not deposited so far the remaining amount of Rs.13,330 as worked out on the basis of 1/3rd of the total sale consideration of Rs.14,40,000, then he should deposit the same in Trial Court within twenty days---Appeal was dismissed accordingly.