RSA No. 3975 of 2007 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 3975 of 2007 Date of decision: January 16,2009 Sukhwinder Singh ..Appellant. Versus Daljit Singh ..Respondent Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. Surinder Sharma, Advocate for the Appellant. Mr. Hemant Saini, Advocate for the Respondent. ... Rakesh Kumar Garg,J. This is defendant’s second appeal challenging the judgment and decrees of the courts below whereby suit of the plaintiff-respondent for recovery of mortgaged amount of Rs. 3 lacs along with interest at the rate of 6 % per annum with effect from 1.8.1995 till realization of the decretal amount was decreed. The plaintiff-respondent filed a suit under Order 34 read with Order 37 C.P.C. for recovery of Rs. 3 lacs as principal amount and for the recovery of Rs. 32400/- by way of interest along with future interest at the rate of 18 % per annum claiming that the defendant was owner in possession of land bearing Khata No.129/159, Khasra No. 40//22/1 ( 4 Kanals), 25 ( 8 Kanals) situated in village Singhian, Tehsil and District Jalandhar as per jamabandi for the year 1993-94. For his personal domestic need, he had mortgaged the aforesaid land measuring 12 kanals to the plaintiff vide two separate mortgage deeds dated 6.7.1995 and 12.7.1995. The two mortgage deeds were duly executed by the defendant in favour of the plaintiff for Rs. 1,50,000/- each on 6.7.1995 and 12.7.1995 and were got registered in the office of Sub Registrar on 12.7.1995. It was further averred that as per conditions, the defendant was to deliver RSA No. 3975 of 2007 2 possession of the mortgaged land to the plaintiff holding him entitled to receive the proceeds of the crops from the land in question in lieu of the interest on the mortgage amount. It was alleged that the defendant had failed to surrender the vacant possession and was personally using and cultivating the land under mortgage. Thus, the plaintiff had also got right to claim interest on the amount of Rs. 1, 50,000/- each of the mortgage deeds. The plaintiff sent demand notice thorough his counsel but the defendant failed to return the amount, hence this suit. On notice, the defendant appeared in the Court and filed written statement raising various preliminary objections. On merits, it was denied that the defendant was in need of raising the amount or to mortgage his property or to execute the mortgage deeds. Thus, the defendant denied the execution and registration of the mortgage deeds and dismissal of the suit was prayed for. On the pleadings of the parties, the trial Court framed the following issues:- 1.Whether the plaintiff is entitled to recover Rs. 32,400/- along with interest as mentioned in the head note of the plaint? OPP 2.Whether the present suit is time barred ?OPD 3.Whether the plaintiff has no locus standi to file the present suit ? OPD 4.Whether the present suit is not maintainable? OPD 5.Whether the plaintiff has no cause of action to file the present suit ? OPD 6.Whether the present suit is barred under the Specific Relief Act ? OPD 7.Relief. After hearing arguments of both the parties the trial Court passed the preliminary decree in favour of the plaintiff for recovery of Rs. 3 lacs along with interest at the rate of 6 % per annum with effect from 1.8.995 till realization of the decretal amount. RSA No. 3975 of 2007 3 Aggrieved by the findings of the trial Court, the defendant preferred an appeal, which was dismissed vide impugned judgment and decree dated 27.5.2007 passed by the Additional District Judge, Jalandhar. Still not satisfied, the defendant has filed the present appeal challenging the judgment and decrees of the courts below. Learned counsel for the appellant has vehemently argued that the courts below have erred at law while decreeing the suit of the plaintiff- respondent for recovery of mortgage amount of Rs. 3 lacs as there was no issue framed with regard to recovery of the principal amount of Rs. 3 lacs and issue No.1 framed in the suit was only with regard to recovery of Rs. 32400/- and interest therein and therefore, the following substantial question of law arises in this appeal:- “Whether a decree can be passed without framing any issue?” However, learned counsel appearing for the respondent has supported the impugned judgment and decrees of the courts below and has argued that both the courts below on appreciation of evidence have recorded a concurrent finding of fact that the appellant executed the mortgage deeds and duly received the mortgage money and the plaintiff is entitled to recover the same along with interest. It was also argued by the counsel for the respondent that there seems to be a typographical error in the issue framed with regard to the principal amount mentioned and in fact the appellant has not raised any grouse in this regard before the lower Appellate Court and there is ample evidence on record of the case which is sufficient to support the findings of the courts below and the appeal is liable to be dismissed. I have heard learned counsel for the parties. In the case of Nedunuri Kameswaramma Versus Sampati Subba Rao AIR 1963 Supreme Court 884, the Hon’ble Supreme Court of India has held that where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, RSA No. 3975 of 2007 4 or that there was mix-trial which vitiates proceedings. In the case of Chaudhary Ram Versus Liba Sood and others 1998(3) P.L.R. 191, this Court has held that once the parties lead evidence knowing fully well the case that they have to meet in that event, the onus of proof of formal framing of the issues becomes irrelevant and the same would assume importance only if it is shown that some prejudice has been caused to the parties. In the case of Tika and others Versus Ram Chander and others 2003 (3) P.L.R. 631, this Court after relying upon AIR 1963 Supreme Court 884 held that once the parties go to trial being alive to the controversy between them even then, in the absence of a specific issue having been framed, the court is not precluded from recording a finding of fact on that controversy provided that the parties have pleaded the case and have led their evidence. Having heard learned counsel for the parties at a considerable length and perusing the record and relying upon the judgments referred to above, I am of the view that there is no merit in the appeal as the learned counsel for the appellant was unable to point out any prejudice having been caused to the appellant and was also unable to refute the argument of the learned counsel for the respondent that parties fully knew about their case and had led all the evidence in this case and no prejudice has been caused to the appellant because of non framing of the issues as alleged by the appellant. The suit can be dismissed as the evidence which has been led in the case is sufficient to reach the right conclusion and neither party claimed that it had any further evidence to offer. The findings are based on the pleadings and evidence of the parties and it cannot be claimed that a reasonable man would not record those findings. It is also well settled that even on re-appreciation of evidence, if this court reaches a conclusion different than the one recorded by both the courts below, such a course is not permissible under law. Therefore, I do not find any ground to interfere. The appeal is without any merit and is liable to be dismissed. RSA No. 3975 of 2007 5 For the reasons recorded above, I find no merit in the appeal No substantial question of law arises in this appeal. Dismissed. January 16,2009 (RAKESH KUMAR GARG) nk JUDGE