RSA No.2232 of 1982 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2232 of 1982 Date of decision: 4.3.2010 Jumma ............Appellant Versus Khubi Ram (died) through LRs. and others .........Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. M.L. Sarin, Sr. Advocate with Ms. Alka Sarin, Advocate for the appellant. Mr. C.B. Goel, Advocate for the respondents. --- 1. Whether Reporters of local papers may be allowed to see the judgment?yes 2. To be referred to the Reporters or not? yes 3. Whether the judgment should be reported in the Digest? yes ALOK SINGH, J. 1. By way of present appeal, filed under Section 100 of the Code of Civil Procedure, plaintiff/appellant is assailing the judgment and decree dated 8.9.1982 passed by the learned first Appellate Court, thereby allowing the appeal and setting aside the judgment of the trial Court. The first Appellate Court vide impugned judgment dismissed the suit of the plaintiff by holding that suit is barred by limitation in view of the fact that same was filed after one year from RSA No.2232 of 1982 2 the date of order passed by the Collector dismissing the application of the plaintiff seeking redemption. 2. The brief facts of the present case are that plaintiff/appellant herein filed a suit for redemption of agricultural land measuring 48 kanals 15 marlas (hereinafter referred as the land in dispute). Smt. Rajjo widow of Chand Mal, the limited owner in possession of the suit land made a gift thereof in favour of the plaintiff on 20.5.1953 who subsequently sold the same to defendant for a consideration of Rs.8000/-. Subsequent to the sale, Mandroop, the father of plaintiff being the near collateral and reversioner of the husband of Smt. Rajjo filed a civil suit No.276 of 1957 against the plaintiff and deceased defendant Thakur Lal entitled Mandroop Vs. Jumma and Thakur Lal challenging the impugned gift and sale deed respectively alleging that Smt. Rajjo being the limited owner in the suit land had no right to make the gift in favour of Jumma and consequently, the sale of the suit land is illegal and void. During the pendency of that suit, the parties entered into a compromise and accordingly, the suit was decreed on 24.5.1958. According to the compromise decree, the sale of the suit land was held to be illegal and void and Mandroop was declared the owner of the suit land. It was further held that the suit land will be deemed to be mortgaged with possession in favour of deceased defendant Thakur Lal for a sum of Rs.6000/-. 3. Since Mandroop has died and therefore, the plaintiff being the only heir has become owner/mortgagor of the suit land and is entitled to redeem the same on payment of Rs.6000/-. According to the plaintiff that inspite of his repeated requests the defendants RSA No.2232 of 1982 3 have refused to redeem the suit land; hence he is left with no option, but to file the present suit. 4. The defendants Nos.5 to 8 were proceeded ex-parte on 3.12.1981. 5. The defendant Nos.1 to 4 resisted the suit denying all the material averments as set out in the plaint. They pleaded that there is no privities of contract of mortgage between the parties as the plaintiff sold away the suit land to them for a consideration of Rs.8000/- vide registered sale deed dated 27.3.1957. The answering defendants further pleaded that the suit is barred by principle of resjudicata as the application filed by the plaintiff for the redemption of the suit land has already been dismissed by the Asstt. Collector, Ist Grade exercising the powers of the Collector F.P. Jhirka on 16.7.1974; that the plaintiff has got no locus standi to sue; that the plaintiff is estopped by his act, conduct and acquaintances from filing the suit; that the suit is not maintainable; that the suit is barred by limitation; that the suit has not been valued properly for purposes of court fees and jurisdiction. 6. Learned trial Court has framed as many as eight issues. Vide judgment and decree dated 11.12.1981, learned trial Court decreed the suit of the plaintiff for possession by way of redemption in respect of the suit land, on payment of mortgage money amounting to Rs.6000/- to be payable on or before 11.1.1982 to the defendants failing which the suit of the plaintiff shall stand dismissed. 7. Feeling aggrieved from the judgment and decree passed by the learned trial Court, LRs of original defendant Thakar Lal, filed Civil Appeal No.22/13 of 1982 in the Court of District Judge, RSA No.2232 of 1982 4 Gurgaon which was later on heard and decided by the Additional District Judge, Gurgaon vide impugned judgment. 8. Learned first Appellate Court allowed the appeal on the question of limitation observing that prior to the filing of the civil suit, plaintiff, mortgagor, made an application under Section 4 of the Re- demption of Mortgages (Punjab) Act, 1913 on 5.6.1974; the applica- tion was dismissed in default on 16.7.1974; restoration thereof was also dismissed on 4.9.1974; the suit was instituted on 15.12.1978 which is beyond the period of one year as prescribed under Section 12 of the Act. 9. In the present appeal, this Court has formulated substan- tial questions of law as under:- “As to whether civil suit filed by the plaintiff/appellant is barred by time as pro- vided under Section 12 of the Redemption of Mortgages (Punjab) Act, 1913 as same was filed after one year from the order of the Col- lector passed under Section 6 of the Act dis- missing the application seeking redemption in default and not on merit?” 10. I have heard learned Counsel for the parties and perused the record. 11. Both the Counsel appeared before me stated at bar that there is no dispute about the facts. Factum of mortgage is admitted to both the parties. 12. Undisputedly, before filing the civil suit, plaintiff/appellant moved an application under Section 4 of the Act for redemption of the mortgage before the Collector on 5.6.1974. Application was dis- missed in default (for non-prosecution) on 16.7.1974. Application for RSA No.2232 of 1982 5 the restoration moved by the plaintiff therein was also dismissed by the Collector vide order dated 4.9.1974. The present civil suit was in- stituted on 15.12.1978. 13. Learned Counsel for the respondents has placed reliance on the following judgments:- 1. Sheo Lal and ors v. Sultan and ors., (1970) 2 S.C.R. 405. 2. Mir Chand v. Devia, (Delhi High Court) 1971 P.L.J. 204. 3. Bachan Singh v. Arjan Singh, (P&H High Court) 1972 PLJ 431. 4. Chanan Singh v. Smt. Majo and another, ( Full Bench of this Court) PLR (Vol. LXXVIII 1976) 726. 14. Learned Counsel for the respondents vehemently argued that since application for redemption was dismissed in default and thereafter restoration application moved under Section 12 was also dismissed on 4.9.1974, hence, in view of Section 12 of the Act, suit ought to have been filed within a year i.e. till 4.9.1975. Since, suit was filed on 15.12.1978, hence, same is barred by limitation prescribed under Section 12 of the Act. He further argued that in fact plaintiff ought to have challenged the order passed by the learned Collector under Section 4 of the Act, dismissing the application in default and thereafter dismissing the application for restoration vide order dated 4.9.1974. According to learned Counsel for the respondents instead of challenging the order of the Collector by way of filing the suit as provided under Section 12 of the Act, plaintiff filed the present suit which is not maintainable and is barred by period of limitation. Learned Counsel for the respondents further submitted RSA No.2232 of 1982 6 that by not including the relief of setting aside the order of the learned Collector, suit of the plaintiff cannot be said to be within time. 15. Mr. M. L. Sarin, Sr. Advocate submitted that since learned Collector has not passed any order on merit and application moved by the plaintiff was dismissed in default, hence, thereafter civil suit filed by the plaintiff would not be barred by Section 12 of the Act. Learned Counsel for the appellant further stated that had there been any order on merit passed by the learned Collector, there would have been no escape to the plaintiff except to file the suit challenging the order of the learned Collector as provided under Section 12 of the Act. Since, the learned Collector has not passed any order on merit and proceeding before the learned Collector under the special Act is a summary proceeding, hence, suit filed by the plaintiff would not be barred by period of limitation as provided under Section 12 of the Act. 16. Mr. M. L. Sarin, Sr. Advocate has placed reliance on the judgment of the Hon'ble Apex Court in the matter of Tundal (dead) by LRs and ors v. Munshi and ors. reported in JT 2006 (8) SC 519. 17. In the case of Tundal (supra), application moved before the learned Collector for redemption of mortgage was dismissed by learned Collector on the ground “since sufficient evidence has not been laid by the parties, no finding could be recorded on the merits of the case”. 18. In paragraph No.10, in the case of Tundal (supra) the Hon'ble Apex Court has observed as under:- “10. As noticed above, in the present case, the net substance of the order of the Collector dated 30.07.1974 reveals that the said order was not recorded on merits. Thus, the con- RSA No.2232 of 1982 7 tention of the learned Counsel for the appel- lant that the suit was barred by limitation as the order of the Collector was not challenged by the plaintiffs within one year does not merit acceptance.” 19. From the perusal of the judgment of the Hon'ble Apex Court in the case of Tundal (supra), it would reveal that in that mat- ter, learned Collector has dismissed the application having observed “since no sufficient evidence has been laid by the parties, no finding could be recorded on merit”. In my humble opinion, in the present case, application was dismissed in default and the present case seems to be on better footings. 20. Applying the judgment of Hon'ble Apex Court in the case of Tundal (supra), I find that since application moved by the plaintiff/appellant before the learned Collector was dismissed in de- fault, hence, no order on merit was passed by the learned Collector. Dismissal of restoration thereof shall not change the position. The net result would be that there was no order of the Collector on merit. Moreover, proceeding before the learned Collector under the Act is of summary nature. Hence, present suit is not barred by limitation as prescribed under Section 12 of the Act. In view of the above, judg- ment passed by the learned first Appellate Court cannot be sus- tained. 21. In view of the above, judgments cited by learned Counsel for the respondents need no discussion and cannot be pressed in service. Hence, substantial question of law is answered in favour of appellant/plaintiff accordingly. RSA No.2232 of 1982 8 22. The present appeal is allowed. The judgment dated 8.9.1982 passed by the learned first Appellate Court is set aside. The Judgment dated 11.12.1981 passed by the learned trial Court is restored. The parties are directed to bear their own costs. (ALOK SINGH) JUDGE ashish