Jeet Ram (died) through LRs v. Ganga Phal & Ors.

The present second appeal has been filed against the judgment and decree dated 31.8.1981 passed by the Ist Appellate Court/District Judge, Faridabad.

The brief facts of the present case are that plaintiffs/respondents filed a suit with the allegation that plaintiff was the owner in possession of the suit property. Plaintiff No.1 entered into the oral mortgage with the defendant/appellant in the year 1972-73 for Rs.21,244/- and possession of the property RSA No.1980 of 1981 -2- was transferred to the mortgagee i.e. defendant/appellant. However, during the mortgage, plaintiff No.1 has transferred 2/3rd share in the land in favour of plaintiffs No.2 and 2 in equal share. Hence, now plaintiffs No.1 to 3 are owner in equal share. It has been further stated by the plaintiffs that they have paid Rs.21,244/- to the defendant on 20.6.1975, to redeem the mortgage. Having received the amount of Rs.21,244/- defendant has issued the receipt for the payment of the mortgage amount. Hence, mortgage stood redeemed. Entries in Khasra Girdawari were also changed in favour of plaintiffs No.1 to 3 in the year 1975. By amending the plaint, plaintiff has

pleaded that since plaintiffs are otherwise owner of the property in suit, hence, they are entitled for the possession from the defendant. Defendant denied the receipt of the mortgage amount and redemption of the land.

Learned trial Court dismissed the suit of the plaintiffs saying payment of the mortgage amount i.e. Rs.21,244/- is not proved and receipt dated 20.6.1975 is not a genuine document. Feeling aggrieved from the dismissal of the suit by the learned trial Court vide judgment and decree dated 25.7.1980, plaintiffs preferred a first appeal in the District Court, Faridabad which was allowed by the District Judge vide impugned judgment dated 31.8.1981. While allowing the first appeal filed by the plaintiffs (herein respondents), learned District Judge has placed reliance on the judgment of the Hon'ble Apex Court in the matter of Kolathoor Variath and another vs. RSA No.1980 of 1981 -3- Pairaprakottoth Cheriya K. Haji reported in AIR 1974 S.C.

Learned first Appellate Court has observed that even after mortgage is not proved, plaintiffs are entitled for relief on the basis of title which is not in dispute. Feeling aggrieved from the judgment passed by the first Appellate Court, second appeal is preferred under Section 100 of the Code of Civil Procedure.

I have heard learned Counsel for the parties and perused the record.

Undisputedly, no question of law has been formulated in the memorandum of appeal as required by Sub- section (3) of Section 100 of CPC nor any substantial question of law was formulated by this Court while admitting the appeal on 30.11.1981.

In another Regular Second Appeal titled as Bikkar Singh and others vs. Jalaur Singh and others in RSA No.861 of 1981 (O&M) similar controversy arose. RSA No.861 of 1981 (O&M) (supra) was decided by the Court vide Judgment dated

16.2.2010. This Court in para Nos.4 to 16 has held as under:- “4. Today an application under Order 41 Rule 2 CPC read with Section 151 CPC bearing C.M. No.1893-C of 2010 is moved seeking permission of this Court to incorporate grounds of appeal and proposed substantial questions of law, by way of amendment in the memorandum of appeal. Mr. M. L. Sarin, Sr. Advocate assisted with Ms. Alka Sarin, Advocate argued that even when RSA No.1980 of 1981 -4- memorandum of appeal is not drawn, containing substantial questions of law, as provided by Sub-section (3) of Section 100 C.P.C., this Court has ample power to formulate substantial questions of law by invoking Sub-section (4) of Section 100 C.P.C. as well as proviso of Sub- section (5) of Section 100 C.P.C. He while placing reliance on the judgment of the Hon'ble Apex Court in the matter of Uday Shankar Triyar v. Ram Kalewar Prasad Singh and another reported in (2006) 1 SCC 75 argued that non compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. He further stated that procedural defects and irregularities must be permitted to be cured and hyper-technical view should be avoided so that litigant approaching the Court may place his case before the Court. He further stated that non formulation of substantial question of law in the memorandum of appeal as well as at the time of admitting the appeal was because of dictum of the Full Bench of this Court in the matter Ganpat v. Smt. Ram Devi reported in 1978 P&H 137. It was stated by both the Counsel that judgment passed by the Full Bench in the matter of Ganpat (supra) was overruled RSA No.1980 of 1981 -5- by the Hon'ble Apex Court in the matter of Kulwant Kaur and others v. Gurdial Singh Mann (dead) by LRs and others reported in AIR 2001 S.C. 1273 . Hence, learned Counsel for the appellants argued that after the judgment of the Hon'ble Apex Court in the case of Kulwant Kaur (supra), appellants should not be suffered for no fault of them and must be permitted to rectify the mistake by invoking Rule 2 or Order 41 C.P.C.

5. I have given my serious thought to the argument of learned Counsel appearing for the appellants. Undisputedly, judgment of Apex Court in Kulwant Kaur (supra) came in the year

2001. No step was taken by the appellant in nine years to formulate substantial questions of law in the memo of appeal by moving amendment in view of change of law. There should be some limit of negligence. Law does not help those who do not help themselves. Appellants were sleeping over the appeal for last nine years and now when appeal is being taken up, learned Counsel for the appellants started arguing that since appeal was admitted in the year 1981 without formulating substantial questions of law, hence, this Court should formulate questions of law now without insisting formulation of questions of law in the memo of appeal or in any case, by permitting the appellants, to formulate RSA No.1980 of 1981 -6- substantial questions of law in the memo of appeal by way of amendment.

6. Section 100 C.P.C. reads as under:- "100. Second appeal – (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this Section from an appellate decree passed ex- parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub- section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, RSA No.1980 of 1981 -7- not formulated by it, if it is satisfied that the case involves such question. "

This Court can formulate substantial questions of law when appeal is filed containing substantial questions of law in the memorandum of appeal as required under Sub-section (3) of Section 100 C.P.C. Duty of the Court to formulate substantial questions of law comes subsequent to the filing of the memorandum of appeal and not otherwise. Now question remains, as to whether Court can press provisio of Sub- section (5) of Section 100 C.P.C. in service while hearing the appeal, enabling the Court formulate substantial questions of law as suggested by Mr. M.L. Sarin, Sr. Advocate.

In the humble opinion of this Court, word 'OTHER' used in the proviso makes it clear that proviso can be pressed in service when some substantial questions of law has already been formulated at the time of admission. The word 'OTHER' denotes in addition to. If no substantial question of law formulated either in the memo of appeal or by the Court at the time of admission of the appeal then proviso cannot be pressed in service.

Rule 3 Order 41 reads as under:- "3. Rejection or amendment RSA No.1980 of 1981 -8- memorandum - (1) Where the memorandum of appeal is not drawn up in the manner hereinbefore prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there. (2) Where the court rejects any memorandum, it shall record the reasons for such rejection. (3) Where a memorandum of appeal is amended, the Judge, or such officer as he appoints in this behalf, shall sign or initial the amendment.

From the combined reading of the Section 100 and Order 41 Rule 3, it can safely be said that no second appeal shall be entertained until and unless memo of appeal contains substantial questions of law. Memo of appeal which does not contain substantial questions of law or which is not drawn up in the manner provided in the Code must be rejected outrightly.

This appeal was filed in the year 1981. Now, after almost 29 years it would not be justifiable to return the memorandum of appeal for refiling after necessary correction-amendment in the memo of appeal. Rule 10 of Volume I Chapter 14 Part B of Punjab and Haryana High Court Rules and Order reads as under:-

10. Amendment after admission – RSA No.1980 of 1981 -9- When an appeal has been registered and a date has been fixed for hearing, the petition cannot be returned for amendment. The appeal must be disposed of in the regular manner by dismissal, or by a judgment affirming, varying or reversing the decree of the lower Court. If the appellant should desire to urge any ground of objection not set forth in the memorandum of appeal, he can, under the provisions of Order XLI, Rule 2, of the Code of Civil Procedure, do so only with the permission of the Court and such permission should ordinarily be applied for in writing some time before the date fixed for the hearing, under Order XLI Rule 12, of the Code, in order that the respondent may have sufficient opportunity of contesting the case on that ground, without the necessity of a postponement.

Full Bench of this Court in the case of Bikram Dass vs. The Financial Commissioner, Revenue Punjab, Chandigarh and others reported in AIR 1975 P&H 1(1) has ruled that memorandum of appeal can be rejected at the subsequent stage also i.e. even after admission of appeal.

In view of Dictum of Full Bench of this Court in the case of Bikram Dass (supra) and Rule 10(supra), at this stage memo of appeal cannot be RSA No.1980 of 1981 -10- returned amendment/correction therein and appeal deserve to be rejected under Rule 3 of Order 41 C.P.C.

However, there is a caveat of the above principle. In genuine case, where this Court finds that impugned judgment is absolutely without jurisdiction or judgment passed by learned Court below cannot stand in the legal scrutiny, then of course this Court can permit to incorporate substantial questions of law in the memo of appeal by invoking Rule 2 of Order 41 reads with Section 151 C.P.C. In the matter of Uday Shankar Triyar (supra), the Hon'ble Apex Court in paragraph 17 has observed as under:-

17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are: (i) where the statute prescribing the procedure, also prescribes RSA No.1980 of 1981 -11- specifically the consequence of non-compliance; (ii)where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it; (iii)where the non-compliance or violation is proved to be deliberate or mischievous; (iv)where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court; (v)in case of memorandum of appeal, is complete absence of authority and the appeal is presented without the knowledge, consent authority of the appellant.

The Hon'ble Apex Court in the matter of Kailash v. Nanhku reported in (2005) 4 SCC 480, paragraph 28 has observed as under:- “28. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by RSA No.1980 of 1981 -12- express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice. The observations made by Krishna Iyer, J. in Sushil Kumar Sen v. State of Bihar are pertinent : (SCC p.777, paras 5-6)

The mortality of justice at the hands of law troubles a judge's conscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable.... Justice is the goal of jurisprudence – processual, as much as substantive.

Keeping in mind the dictum of the Hon'ble Apex Court in the matter of Uday Shankar Triyar (supra) and Kailash (supra), it can very well be said that jurisdiction of this Court to permit the appellants to formulate substantial questions of law in the memo of appeal is not taken away, it can be exercised when RSA No.1980 of 1981 -13- facts and circumstances of that case permits, however, that latitude cannot be given in each and every case. Ordinarily no latitude can be given in the appeal which were filed after the judgment of the Hon'ble Apex Court in Kulwant Kaur's case (supra).”

7. Now coming to the facts of the case to find out as to whether in fact any substantial question of law arises for consideration of this Court. The brief facts are necessary to be mentioned. Undisputedly, plaintiffs are the owner of the property and plaintiff No.1 took Rs.21,244/- from the defendant/appellant in the year 1972-73. Undisputedly, defendant was placed in the possession of the property in dispute at the time of taking Rs.21,244/-. Undisputedly, transaction was usufructuary mortgage which was never reduced in writing, which ought to have been reduced in writing and registered, as required under Section 59 of the Transfer of Property Act. First Appellate Court observed that even after plaintiff fails to prove mortgage and its redemption, he can succeed on the basis of his title, placing reliance on the judgment of the Hon'ble Apex Court in the case of Kolathoor Variath (supra).

8. The Hon'ble Apex Court in the matter of Kolathoor Variath (supra) held as under:-

Where a plaintiff cannot regain possession on the basis of an oral mortgage as it cannot be proved in a RSA No.1980 of 1981 -14- court of law for want of registration, it is open to him to recover possession on the strength of his title. Luckily for them, the appellants did not base their suit solely on the oral mortgage. They also founded their claim on their title. Notice the relief A(1) in the plaint.

9. In view of the dictum of the Apex Court, plaintiff cannot regain possession on the basis of an oral mortgage as it cannot be proved in the court of law for want of registration, it is open to him to recover possession on the strength of his title.

10. In view of the dictum of the Hon'ble Supreme Court which was rightly relied by the First Appellate Court, in my humble opinion, no substantial question of law arises in the present appeal and the same is liable to be dismissed.