Crl No 145 1 of 1985
Under Article 32 of the Constitution of India
RK Jain and RK Bhatt for the Petitioner
35 Kapil Sibal Anil D Singh VC Mahajan AS Nambiar Salman Khurshid Gopal Singh Ms K Jaiswal Ms section Janani Ms A Subhashini Mrs Indira Sawhney Mrs Urmila
Kapoor AS Bhasme AM Khanwilkar KR Nambiar JR Das DK Sinha D Bhandari YP Rao SK Agnihotri PK Manohar M Veerappa RK Mehta KRR Nambiar BD Sharma K Vasdev DN Mukharjee MP Jha TVSN Chari Mahabir Singh MN Shroff A Subba Rao RS Sodhi K Ramkumar SK Bhattacharya LR Singh AK Sanghi CVS Rao R Venkataramani Probir Choudhary TVS Krishna murthy section Vasudevan DRK Reddy KJ Rao and UN Singh for the Respondents
The following Order of the Court was delivered ORDER It is stated by counsel appearing for the States includ ing that of Nagaland that affidavits as directed have been filed
Mr Jain appearing in support of the writ petition has asked for a direction to the State to set up Advisory Boards both at the State and the District levels as contem plated in the scheme so that implementation of the various provisions of the Act can be facilitated
We are of the view that for the present the Board in terms of the provision of the scheme should be set up at the State level and steps at the District level may be deferred for the present
Each of the States including the State of Jammu  Kash mir to which the scheme would apply though not under the Act in view of its consent is directed to set up its Advisory Board in terms of the scheme
Implementation of the Act would be convenient if in the Board to be set up the Minis ters of Law and Social or Children s Welfare as the case may be the Secretary to Government in the relevant Depart ment the Head of the Police Establishment Director General or the Inspector General as the case may be the Head of the Health Directorate two members of the Bar with appro priate aptitude an acknowledge lady social worker a Member of Parliament and a Member of the State Legislature one or two social workers of acknowledged repute preferably con nected with children s rehabilitation activity are included
It would be open to the State Government to make small variations depending upon the requirements of any particular State
The total number of the Advisory Boards should not be below 15 and not above 20
The State Government should indicate 36 as to who would be the Chairman and Secretary respectively of the Board
Such Committee should be set up within six weeks from today and report of compliance shah be filed with the Registry of this Court within eight weeks
The first meeting of the Board should be within four weeks of its constitution and every such Board is directed to send its first proceeding to the Registry


Summary:
The appellant s claim to pre emption was decreed by the Senior Subordinate Judge in his favour
The pre emption decree specified 31121975 as the day on or before which the purchase money was to be paid into Court
But the exact amount to be paid was not specified it only said Rs41082 less the amount of Zare Panjum which the parties admit to be 15th
Thus only 45th of the amount was to be paid
Subsequently it was reported by the office that the amount deposited fell short of the decretal amount by Rs 100
Thereupon the appellant decree holder filed an application praying for condonation of delay and for permission to deposit the balance of Rs 100 stating that there was an inadvertent arithmatical mistake on his part as also on the part of the Court officials
The Senior Subordinate Judge applying the maxim Actus curiae neminem gravabit condoned the delay holding that the mistake of the decree holder was shared by the Court
The High Court however allowed the respondent s review petition filed under section 115 CPC and held that the decree holder himself filed the applica tion annexing the challan mentioning the amount and as such there was no mistake on the part of any Court officials
Before this Court it was inter alia contended on behalf of the appellant that the Senior Subordinate Judge having exercised power within his jurisdiction under section 148 CPC in extending the time to deposit the deficit amount of Rs 100 the revisional court mis directed itself in holding that the court officials were not at fault in not pointing out the shortfall while permitting the deposit of the decretal amount
On behalf of the respondents it was contended that the challan having been prepared by the decree holder himself there was no mistake on the part of any Court official in accepting short deposit and the 18 High Court rightly held that the appellant s suit stood dismissed because of non deposit of the decretal amount within time and thereafter there was no question of exten sion of any time for depositing the same
Allowing the appeal this Court HELD 1 There is no doubt that where the Court decrees a claim to pre emption and the entire purchase money payable has not been paid and there is no order from any court to justify or excuse non payment the suit shall be dismissed under order XX Rule 141 CPC
22H 2 While mere filing of an appeal does not suspend a pre emption decree of the trial Judge a stay order passed by the appellate court may suspend it in the manner ordered therein
28B Naguba Appa vs Namdev AIR 1954 SC 50 and Dattaray vs Shaikh Mahboob Shaikh Ali   referred to
3 One could distinguish the cases of non deposit of the whole of the purchase money within the fixed time where there was no stay order granted by the appellate Court from the cases of non deposit of the decretal amount consequent upon a stay order granted by the appellate Court
30G 4 In the first category of above cases the provisions of 020 r141 would be strictly applicable the provision being mandatory
30G Naguba Appa vs Namdev AIR 1954 SC 50 referred to
5 In the second category of above cases it would be necessary to examine the nature and effect of the stay order on the deemed disposal of the suit and also to see whether a fresh period is fixed thereby
30H Dattaraya vs Shaikh Mahboob Shaikh Ali  and Sulleh Singh vs Sohan Lal   referred to
6 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 19 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 indica tive of negligence or inaction
31A B Jogdhayan vs Babu Ram  Ors
   referred to
7 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 nominem gravab it  an act of the court shall prejudice no man
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 channeled amount is that of the court
31B C Jang Singh vs Brijlal  Ors  and Labh Singh vs Hardayal 1977 79 Punjab Law Reporter 4 17 referred to
8 In the instant case inadvertent error crept in arithmetical calculation
The deficit of Rs I00 was a very small
fraction of the total payable amount 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 was deposited and even possession of the property was delivered to the appellant
31D E 9 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
32D Gobardhan Singh vs Barsati  Mahanth Ram Das vs Ganga Das  and Ganesh Prasad Sah Kesari vs Lakshmi Narayan Gupta   referred to
10 Section 115 CPC applies to matter of jurisdiction alone the irregular exercise or non exercise of it or the illegal assumption of it
The High Court had therefore jurisdiction to interfere with the order of the Senior Subordinate Judge only i if the said Judge had no juris diction to make the order it has made and ii had acted in breach of any provision of law or committed any error of procedure which was material and may have affected the ultimate decision
The first condition precedent to enable the High Court to exercise its revisional jurisdiction under section 115 CPC was lacking
Likewise nothing has been 20 brought out 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 effected 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 conclusion of that Judge on questions of fact or law
32A C 33D E Keshardeo Chamria vs Radha Kissen Chamria  Ors   referred to