RSA No.3944 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3944 of 2008 (O&M) Date of decision : 7-8-2009 Gulzar Singh ....Appellant VERSUS Sawinderjit Singh ...Respondent CORAM:- HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. D.S. Pheruman, Advocate, for the appellant. RAJIVE BHALLA, J. CM No.11741-C of 2008 Allowed, as prayed for. CM No.11742-C of 2008 and RSA No.3944 of 2008 The appellant challenges the judgments and decrees dated 30-3-2007 and 17-7-2008, passed by the Civil Judge (Jr. Division) Amritsar and the Distt. Judge, Amritsar respectively decreeing the suit filed by the respondent and dismissing the appeal filed by the appellant. The plaintiff / respondent filed a suit for declaration that he is a mortgagee in possession of the suit land pursuant to a mortgage deed dated 24-5-1995 and therefore prayed that appellant / defendant be restrained from alienating the suit land in any manner. In addition, the respondent alleged that as the appellant has failed to redeem the property and failed to honour an agreement dated 14-6- RSA No.3944 of 2008 (O&M) -2- 2002, the suit be decreed as prayed for. In response to the notice, the appellant admitted the mortgage deed but asserted that he had redeemed the mortgage by paying a sum of Rs.1,75,000/- to the respondent on 6-4-2003. The agreement dated 14-6-2002 was denied. It was prayed that as he had already sold the suit land the suit be dismissed as infructuous. After framing issues, the trial court called upon the parties to lead evidence. Upon consideration of the pleadings, the evidence adduced and the arguments addressed, the trial court held that though the prayer with respect to sale of the land had been withdrawn, the respondent was entitled to a declaration that he is a mortgagee pursuant to the mortgage deed dated 24-5-1995. The appellant filed an appeal which was dismissed by the Distt. Judge, Amritsar on 17-07-2008. The only argument raised by counsel for the appellant is that in the absence of any consequential relief, the suit for declaration simpliciter was not maintainable. It is argued that as the relief for injunction stood withdrawn, the courts below should have dismissed the suit as not maintainable. I have heard counsel for the appellant, perused the impugned judgments and find no reason to hold that the impugned judgments suffer from any error of law or raise any substantial question of law as would require interference. Admittedly, the appellant executed a mortgage deed in favour of the respondent. Both the courts below have held that the appellant has failed to establish his plea that the mortgage stands redeemed. As a RSA No.3944 of 2008 (O&M) -3- consequence, the courts below did not commit any error in passing a decree that the respondent is a mortgagee. The withdrawal of the relief of permanent injunction would not make any difference to the maintainability of the suit, as at no stage of the proceedings has the appellant denied the execution of the mortgage deed. The argument that a suit for declaration simpliciter is not maintainable would not alter the fact of mortgage or that the appellant has failed to redeem the mortgage. It would be necessary to mention here that the suit as originally framed contained a consequential relief which was rendered infructuous as the appellant had sold the suit property. As a consequence, in the absence of any substantial question of law, the appeal is dismissed. (RAJIVE BHALLA) 7-08-2009 JUDGE manju