- (1.) THE petitioner-defendant, Vijay Kumar Ahuja has filed the present revision petition against the order dated 14.05.2011 passed by learned trial court of Additional District & Sessions Judge (FT) No.2, Udaipur in Civil Original No.42/2011-Om Prakash & Ors. Vs. Vijay Kumar Ahuja for redemption of mortgage, whereby the learned trial court has rejected the defendant's application under Order 7 Rule 11 CPC.
(2.) THE said application was filed in the suit for redemption of mortgage on the ground that the supplementary document executed between the parties for Rs.1,50,000/- on 11.3.2000 was not registered and duly stamped, therefore, in the absence of same, the suit for redemption of the mortgage could not be maintained. THE learned trial court while rejecting the said application under Order 7 Rule 11 CPC has held that the original mortgage deed for a sum of Rs.3,00,000/- executed between the parties on 28.07.1999 was a duly registered and stamped document and the mortgage was sought by the plaintiffs-respondents, Om Prakash and others on the basis of said document. THE learned trial court has held that whether the supplementary document for Rs.1,50,000/- created a further charge or not and whether that can also be construed as supplementary mortgage deed or not, is a matter of evidence, and therefore, the entire suit cannot be thrown out on the anvil of Order 7 Rule 11 CPC. Having heard learned counsel for the parties and upon perusal of the reasons given in the impugned order dated 14.05.2011, this Court is of the opinion that there is no error in the impugned order of the learned trial court. Since the question of construction of the document is involved and the same being a mixed question of facts and law, therefore, the issue relating to payment of court fees/stamp duty on such supplementary document is also a mixed question of fact and law, which deserves to be proved by the parties by leading evidence. Obviously, therefore, the suit could not be thrown out at the initial stage under Order 7 Rule 11 CPC. In the circumstances of the case, this revision petition is disposed of with a direction to learned trial court to frame an issue relating to the court fees and stamp duty on the said supplementary document for Rs.1,50,000/- and decide the same as a preliminary issue. With these observations, the revision petition of defendnat is disposed of. Both the parties shall be free to raise their respective contentions before the learned court below. No costs.;