AT CHANDIGARH v. Arjan Singh & Ors.

Present: Mr. A.S. Bakshi, Advocate for the appellant. None for the respondents. ---

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporters or not?

3. Whether the judgment should be reported in the Digest? ALOK SINGH, J.

1. In the present case, judgment impugned is dated

4.4.1987 passed by the learned first Appellate Court, whereby the learned first Appellate Court modified the judgment of the learned trial Court to the extent that plaintiff/appellant shall be entitled, to get the house in disputed redeemed, on the payment of mortgage amount of Rs.5,000/-.

2. The brief facts of the case are that the plaintiff/appellant as owner mortgaged with possession of the property in question to RSA No.2805 of 1987 2 the defendants for the amount of Rs.6000/- on 12.2.1976 on the same day i.e. on 12.2.1976 mortgage deed was executed; same day i.e. on 12.2.1976 plaintiff agreed to take the same property on rent from the defendants, consequently rent deed was also executed between the parties; plaintiff being tenant of the mortgaged property started paying rent at the rate of Rs.100/- per month to the mortgagee on the basis of the written rent note executed by the tenant (plaintiff) in favour of the defendants i.e. mortgagees on

12.2.1976; it was also agreed that whatever is earned from the property as rent that will be adjusted against interest to be taken by the defendants/mortgagees of the plaintiff/mortgagor; that the mortgagees being with possession, therefore, the defendants are liable to render the account of the rental income received; mortgagee received much more than the amount secured under the mortgage amount; the plaintiff has paid Rs.6800/- upto 19.10.1981, therefore, the plaintiff have paid Rs.3400/- in excess towards interest to the defendants, therefore, after deducting this amount from the mortgage amount i.e. Rs.5000/- the only amount liable to be paid by the plaintiff to the defendants is Rs.1600/-; the defendants cannot claim interest more than 11% per month from the plaintiff; the plaintiff has prayed that a decree for redemption of house in dispute on payment of such amount as may be determined payable to the defendants; if in the opinion of the Court defendants have received more than double the amount then property be redeemed without payment of any amount; defendants be directed to retransfer the property to the plaintiff under Order 34 Rule 9 C.P.C.

3. Defendants contested the suit and have admitted the factum of ownership and mortgage, but have denied the contents of RSA No.2805 of 1987 3 caluses (d) and (e) of the plaint; the house was mortgaged for a period of ten years and the suit is pre-matured; that they have not received any amount from the plaintiff towards the interest, therefore, the question of adjusting any rent towards the interest does not arise and as such the amount can not be adjusted towards the principal amount; that the plaintiff has not paid the full rent to the defendants and they have filed application for ejectment of the plaintiff which was decided by the Sub-Judge-cum-Rent Controller, Amritsar; that the suit of the plaintiff be dismissed.

4. On the pleadings of the parties, the following issues were framed by the learned trial Court:- “1. Whether the suit is pre-matured?OPD

2. Whether the plaintiff is entitled to possession by redemption as detailed in para No.4 of the plaint?OPP.

3. Relief.”

5. Learned trial Court while recording the finding on issue No.2 has held that mortgage amount as well as loan amount which is Rs.5000/- alongwith interest upto 31.1.1985 stands paid and excess rent/interest paid by the plaintiff to the defendants can easily be adjusted in the original loan amount of Rs.5000/- so nothing remains to be paid by the plaintiff to the defendants to get the mortgage redeemed, hence, plaintiff is entitled for possession.

6. Feeling aggrieved by the judgment passed by the learned trial Court plaintiff has preferred first appeal asserting that plaintiff should have been declared entitled for the refund of the amount which she has paid to the defendants in excess of the principal mortgage amount and interest. Defendants also filed cross-objection before the first Appellate Court against the decree passed by the RSA No.2805 of 1987 4 learned trial Court contending that having found that the transaction of mortgage and of renting out the property to the plaintiff were different and separate transaction, learned trial Court was not within its jurisdiction to adjust any amount of rent received by the defendants from the plaintiff.

7. Learned first Appellate Court found favour with the cross- objection filed by the defendants and allowed the same while appeal filed by the plaintiff was dismissed.

8. I have heard learned Counsel for the appellant and perused the record.

9. Learned Counsel appearing for the appellant has argued that in the matter of redemption of mortgage, Court is supposed to follow procedure prescribed under Order 34 C.P.C. According to learned Counsel for the appellant both the Courts below have not followed procedure of Order 34 C.P.C., hence, orders impugned are liable to be set aside and the case deserves to be remanded to the trial Court to proceed de novo strictly as per the procedure prescribed under Order 34 C.P.C.

10. Apparently, arguments advanced by learned Counsel for the appellant are attractive and seems to have some force.

11. Undisputedly, mortgage amount is Rs.5000/-. As per plaint case, plaintiff claims that she has paid total amount of Rs.6800/- till 19.10.1981 to the defendants; plaintiff thus paid Rs.3400/- in excess to the interest liability; so after deducting excess amount from the mortgage amount of Rs.5000/- plaintiff is liable to pay Rs.1600/- only. Civil suit was filed in 1984. Litigation is pending for last 26 years. Amount involved is very less i.e. Rs.5000/-. In view of this in the opinion of this Court dispute must rest now. Remanding RSA No.2805 of 1987 5 the matter for de novo trial or judgment that too for small amount seems to be unjustified.

12. In peculiar facts and circumstances of the case, I am not inclined to enter into the question raised by learned Counsel for the appellant.

13. Hence, the appeal is dismissed with no order as to costs. 11th March, 2010 ashish (ALOK SINGH) JUDGE