Decided on April 24,1950

L. Devi Dass Appellant
Mt. Devki Devi Respondents


Kesho Ram Passey, J. - (1.) THIS appeal by Mt. Devki Defendant has been brought against the preliminary decree passed in favour of the Plaintiff on 23 -12 -2005 by the Sub -Judge Ist class, Patiala,, in a redemption suit on payment of Rs. 8,000 -0 -0, Devi Dass Plaintiff has also filed an appeal No. 10 of 2006 claiming that the entire charge on the mortgaged property has been washed off by its income during the period of the mortgage. The Plaintiff's father Ganesh Dass mortgaged on 1 -5 -1951 Bk. his four shops, three of which were situate in Katra Nauhrian and the fourth in Bazar Chowk Qilla Mubark Patiala for Rs. 8,000 -0 -0 to Syed Nazir Husaain son of Syed Imdad Ali of Samana. The property was then bringing to the owner Rs. 245 as rent every year. The interest on the mortgage money was fixed at Rs. 400 per annum to give a yield of 5 per cent per annum, and the other essential conditions of the mortgage were that (a) the mortgagor would not ask for redemption before four years after the expiry of which he would be entitled to get the property back on payment of the mortgage money, (b) the usufruct which was then assessed at Rs. 245 per annum, was to be appropriated towards discharging the liability for interest partially and the balance of Rs. 155 due to the mortgagee on account of interest would be paid separately by the mortgagor annually failing which the mortgagor would pay interest on Rs. 165 also at the rate of 5 per cent, (c) the mortgagee would, after notice to the mortgagor carry out necessary repairs and the amount so spent would also carry interest at the same rate, (d) the mortgagor would get the property redeemed on full payment of the mortgage money and interest etc. after four years but during the continuance of the mortgage the mortgagee would have the rights to change the -tenants and to let out the property on a higher or lower rental and in case of fall in income the mortgagor would make up the deficiency or loss, and if the yield went up his account would be credited with the enhanced amounts so received and (e) if the mortgagor would not pay Rs. 155 with interest during the stipulated period of four years, the property would be deemed to have been sold in lieu of the mortgage money and a sale -deed would be executed by the mortgagor and in that case the objection that the property was in mortgage only would not be heard. The exact words pertaining to this term are "agar mayad muqararme Rs. 155 mai muna fake ada na hoga to yeh kul jaidar zer -i -karya jawega. Phir waqat bai ke hujat rehin ki musmuh na hogi". On 24 -3 -1987 Zakir Husaain nephew and successor -in interest of Nazir Hussain original mortgagee, sold the mortgagee rights in one shop situate in Katra Nauhrian for Rs. 5,500 to Amin Chand who is represented in these proceedings by his adopted son Sham Lal Defendant 2. On 9 -10 -1988 Zakir Hussain further sold his mortgagee rights in the remaining three shops for Rs. 6,000 to Mt. Devki wife of Bashambar Dass alias Balu Ram Defendant 3 Mt. Devki on 26 -6 -1994 mortgaged her mortgagee rights in two shops in Katra Nauhrian for Rs. 5,000 with Nikku Mal Defendant 4. Devi Dass brought this suit for redemption on 4 -1 -2004 and claimed possession of the mortgaged property without payment of any principal or interest as he contended that the income of the property during the years of the mortgage had far exceeded its liability under the mortgage covenant. The Defendants opposed the suit chiefly on the ground that the Plaintiff had lost his right to redeem in view of the foreclosure clause in the deed of mortgage dated 1 -5 -1951 Bk. and stressed in the alternative that the Plaintiff could in no case ask for possession without payment of the mortgage money and interest that had accrued thereon. In this suit, representatives of the original mortgagee and the subsequent transferees have been impleaded as Defendants. The suit has been fought out chiefly on two issues, namely, the right of the Plaintiff to redeem the property and the amount due upon the mortgage. It may be mentioned here that Mt. Devki by her application dated 24 -4 -2004 had also initiated proceedings for foreclosure separately under the Hidayat of 1922 Bk. This application has been tried along with the suit of Devi Dass hut dismissed. In the redemption suit a preliminary decree has been passed in these words: I therefore pass a preliminary decree in favour of the Plaintiff against the Defendants that If the Plaintiff pays into Court the amount of Rs. 8000 on or before 22nd of Jeth, 2006, and also pays into Court fees of the Commissioner as the Court has directed within a fortnight from the date of filing in Court the above report by the Commissioner, the Plaintiff shall be entitled to apply for the final decree and in case of default in the payment of the aforesaid amount the suit shall stand dismissed. In view of all the circumstances of the case, the parties ate left to bear their own costs. Against this decree, out of the Defendants, only Mt. Devki has appealed. Devi Dass has also filed a cross appeal praying that he should be allowed costs of the suit and absolved of the decretal amount and held entitled to obtain possession of the mortgaged property without paying anything to the Defendants. Mt. Devki has re -agitated her plea that by virtue of the foreclosure term of the contract, the Plaintiff has lost all rights, title and interest in the property and that on that account his suit should be thrown out. The prayer clause in the grounds of appeal is directed to seeking that relief alone, although in the earlier paragraphs the correctness of the fixation of Rs. 8000 as the amount due to her has also been disputed. After about eleven months of the decree under appeal and after about ten months of the tiling of her appeal by Mt. Devki, Sham Lal Defendant 2 made an application on 11 -11 -2006 for being transposed as an Appellant in the appeal preferred by Mt. Devki. The case had been partly heard by us on 10 -11 -2006 but no such application was submitted on that day. He had himself a right to appeal which he did not exercise and his object in figuring as an Appellant at that late stage appeared to us to be only to give strength if it was possible, to the appeal of Mt. Devkio. The application was consequently dismissed on 11 -11 -2006.
(2.) MR . Nehra has drawn our attention to the judgment of the trial Court with a view to point out that it fails to conform to the requirements of Order 20 Rule 4, Code of Civil Procedure. The judgment in our view contains sufficient discussion of the points raised in the arguments and pleadings of the parties and they can easily know from the judgment and understand the grounds of the decision. Although the method of approach is not so lucid or elaborate, the various aspects of the case and questions involved have been properly appreciated and determined. At any rate, the learned Counsel has not been able to make out a case of his client having been prejudiced by the supposed defect caused by the alleged failure of the Court to adhere rigidly to the provisions of Rule 4 of Order 20, Code of Civil Procedure. There is thus no force in the objection of the learned Counsel and the same is overruled. It has been contended on behalf of the Appellant that the preliminary decree is a nullity as it has been pissed by a Court which had no jurisdiction to try the suit. More precisely the argument of Mr. Nehra is that the Sub -Judge 1st Class could only try suits of the value of Rs. 10,000 or below and that the value of the subject -matter in this case was far in excess of the maximum of his pecuniary jurisdiction. The ground on which this argument is based is that jurisdictional value of the suit in a case of redemption according to the Suits Valuation Act, must be its market value. He also relies upon Rule 9 contained in Ch. 13 of the rules framed under Section 28, Patiala Civil Courts Act, 2001, according to which the amount of principal mortgage money and interest calculated on the terms of the mortgage at the date of the institution of the suit, is to be the value of the action for jurisdictional purposes. The learned Counsel maintains that calculated in terms of the said Rule 9, the value of the suit for fixing jurisdiction was much more than Rs. 10,000. The position regarding couch -fee does not present any difficulty as Section 7, Sub -clause (ix). Court -fees Act, makes it abundantly clear that it would be payable on thy principal money expressed to be secured by the instrument of mortgage, where the suit is for the recovery of the property mortgaged, or for foreclosure or for a declaration that the sale has become absolute where the mortgage was male by conditional sale. The rules prescribing modes of assessment of court fees are, however, of little help in determining the market value of the property which would govern the competency of the Court to take cognizance of a suit belonging to one of the categories above named. Barring cases where the Law of Suits Valuation prescribes that the value of a suit for purposes of jurisdiction and court -fees shall be the same, as in that case the Plaintiff is cot left with any option to place any value of choice and he cannot give different values for court -fees and jurisdiction, the method of calculating court -fees (which is prescribed for fiscal reasons) cannot be the proper way or guide to reach the value of the claim advanced in a suit for ear -marking jurisdiction. In a case of the nature which is outside the scope of Section 8, Suits Valuation Act, two different valuations for court -fee and jurisdiction have to be specified by the Plaintiff He must disclose in the plaint as to what is the value of the suit for purposes of jurisdiction as distinguished from the value for purposes of court -fee which is computed according to rules set out in the Court -fees Act.
(3.) THE Plaintiff in the case under examination fixed Rs. 8000 as the value of his claim for purposes of jurisdiction. This was incidentally the same value as was required to be fixed by Section 7, Sub -clause (IX), Court fees Act. Without evidence that the market value of the mortgaged property was in excess of Rs. 8000, it would not be reasonable or fair to presume that Rs. 8000 did not correctly represent the market value. There has thus been no deviation from or infringement of the rules of the Suits Valuation Act relating to fixation of value of the suit for purposes of jurisdiction. Coming to Rule 9 framed under Section 28, Patiala Civil Courts Act, which has now been repealed by Section 119, Ordinance No X [10] of 2005 it has to be observed that it requires that the value of a redemption suit for jurisdictional purposes should be the aggregate of the principal and interest due on the date of the suit for redemption. The interest has to be calculated according to the terms of the mortgage and if none is found due on the date of the suit the principal alone would form the value for jurisdiction. In view of the peculiar terms of the contract of mortgage made on 1 -5 -1951 Bk. and the fact that the accounts must have been with the mortgagee and they were not produced, it was not possible for the Plaintiff to ascertain if any money was at all duo as interest to the mortgagee on the date of the suit and now on investigation of the issue regarding the amount due to the mortgagee, it has been found that he is not entitled to any. No objection regarding jurisdiction was raised in the trial Court till 29 -10 -2005 when the case had come up for arguments and in her application submitted on that day Rule 15, High Court Rules, which has absolutely no bearing on the question of jurisdiction was depended upon to support her objection. Even in this Court in ground No. 12 of the appeal, it has been stated. the Plaintiffs suit being for possession the Court -fee was payable under Section 7(v) according to the market value and jurisdiction determined accordingly. The suit was thus beyond the pecuniary jurisdiction of the trial Court. It would appear that the Appellant has not been taking a correct or constant stand. In her own appeal the value for purposes of jurisdiction has been given by Mt. Devki to be Rs. 8,000. Moreover, para. 29, Patiala Civil Courts Act, 2001, itself lays down that an objection that by reason of the under -valuation of a suit the Court of first instance which had no jurisdiction with respect to the suit exercised jurisdiction with respect to it, shall not be entertained by the appellate Court unless the objection was taken in the Court of first instance at or before the hearing at which the issues were first framed and recorded. As mentioned above, the objection in this case was takan up not in the written statement or before the framing of the issues but at the time of arguments. We have further no reason to suppose and no such reason has been pointed cut by the counsel of the Appellant, that the under -valuation of the suit has prejudicially affected its disposal on its merits. In Vedaji Baskara v. Subramania, A.I.R. 1920 Mad. 843 :, 52 I.C. 992 following Govinda Menon v. Karuna Kara Menon 24 Mad. 43, it was held that in cases of under -valuation, the appellate Court should not interfere with the decision given by the lower Court on the merits unless the disposal of the suit has been prejudicially affected, and in Jaswant Ram v. Moti Ram, A.I.R. 1926 Lah. 376 :, 7 Lah. 570 FB it was held that in a suit for the redemption of immovable property the value for purposes of jurisdiction is the amount found by the Court to be the value of the mortgagee's charge on the property to be due to the mortgagee. For the reasons given above the objection of Mr. Nehra regarding jurisdiction must fail.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.