Punjab-Haryana High Court
Sohan Lal (Deceased) Through His Lrs vs Balbir Singh Son Of Didar Singh on 31 July, 2012
Author: K. Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No.1875 of 1987 (O&M)
Date of decision:31.07.2012.
Sohan Lal (deceased) through his LRs ...Petitioner
versus
Balbir Singh son of Didar Singh, and others ....Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
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Present: Ms. Himani Sarin, Advocate, and Mr. Nitin Sarin,
Advocate, for the petitioner
Mr. J.K.Sibal, Senior Advocate, with
Mr. Karan Singla, Advocate,
for the respondents.
Mr. Keshav Gupta, Advocate,
for the applicant/ Mortgagor.
----
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.
----
K.Kannan, J. (Oral)
CM No.3937-CI of 1987 This is an application for placing on record rent receipts alleged to have been paid by the tenant in favour of the mortgagee, I do not think it is necessary for consideration at the stage of civil revision petition. There is no justification for non-filing of these documents before the Rent Controller itself. If the Civil Revision No.1875 of 1987 (O&M) -2- amounts are said to represent payments made subsequent to the filing of the petition, they become irrelevant. In either case documents are not required to be received.
Civil Revision No.1875 of 1987 I. The facts that give rise to dispute
1. The civil revision is at the instance of the tenant challenging the order of eviction passed by the appellate Court in reversal of the judgment of the Rent Controller. Before the Rent Controller, the petition had been filed by purchasers of equity of redemption, who claimed that the tenant under the mortgagee had attorned the tenancy in their favour in a compromise entered into between them and the tenant. In the suit for redemption filed against the mortgagee and the tenants of the mortgagee, the property was in respect of all the property that had been purchased by them which included the shop in the possession of the tenant as well.
2. A few more facts would be necessary to set the case in its proper perspective. The property originally belonged to Gokal Chand, Kishori Lal, Kasturi Lal, Kapuri Lal and Tarsem Lal. They had usufructuarily mortgaged the property to Amar Nath and Dev Gupt for a period of 5 years to secure a loan of ` 40,000/-. The original owners, who were the mortgagors, had sold the property to the landlords, who upon such purchase filed a suit for redemption making the mortgagees, mortgagors and the respective tenants as defendants in suit. The tenant, who is in revision petition before this Civil Revision No.1875 of 1987 (O&M) -3- Court, was 6th defendant in the suit. During the pendency of the suit, a compromise was brought about between the landlords and the tenant when a rent note was prepared on 05.03.1980. Statements of the parties, namely of Balbir Singh, representing the landlords and Sohan Lal, being the tenant, were recorded by the Court. In terms of the rent note and the statement recorded, the tenant-6th defendant was removed from array of parties. The trial progressed to adjudicate on the landlord's right of redemption sought through their plaint. A preliminary decree had been passed by the trial Court on 24.07.1980 where the contest was essentially between the landlords and some other tenants, who had been resisting the action for redemption. In the manner of provision for the preliminary decree, the Court held that the mortgage with the defendants 1 and 2 for a consideration of ` 40,000/- was liable to be redeemed and the period of redemption having commenced after 23.02.1977, the plaintiff would be entitled to redeem the same on payment of ` 40,000/- to the mortgagee on or before 30.09.1980, failing which, the plaintiff's suit would stand dismissed with costs. It is on the basis of the rent note that the landlords obtained and on the assertion that the amount as directed by the decree had been actually deposited that the landlords sought for action for eviction against the tenant on two grounds: (i) the tenant, who had undertaken to treat them as landlords and pay a rent of ` 130/- per month did not pay the rent Civil Revision No.1875 of 1987 (O&M) -4- and has thus rendered himself liable for eviction; (ii) the tenant, who had conceded to the landlords' status as such was however, denying the title and consequently forfeited the rights as tenant making himself liable for eviction on that ground as well. II. The issue: whether there existed a subsisting jural relationship of tenancy between parties
3. To the petition filed by the landlords, the contest by the tenant was that the rent note executed on 05.03.1980 as a measure of compromise during the pendency of suit for redemption was provisional and was intended to take effect only when the landlords as plaintiffs were took possession. Pursuant to the decree that was to be passed in the redemption suit, so long as the possession was not taken by the passing of final decree, the tenant could not be treated to be a tenant under the landlords, who claimed as purchasers of equity of redemption, but the tenant would continue to be a tenant only under the mortgagee against whom there had not yet been a final decree for redemption delivering the property to the purchasers. Responding to the statement made before Court on the basis of which the tenant was exonerated through suit, the contention was that the acceptance of the tenant of the landlords' status must be understood in the context of what would enure to the landlord on securing actual possession through Court on the passing of final decree and that is how he understood himself when he gave a recorded statement in Court.
Civil Revision No.1875 of 1987 (O&M) -5-III. Examination of the statements by tenant and "landlord"
4. The relevant portions of the rent note dated 05.03.1980 and the respective statements of the parties before the tenant was removed from the array of parties, would require to be reproduced for coming to grips with the issues raised in this case:-
"I, Sohan Lal son of Kundan Lal son of Kalu Ram, am owner of shop and firm Sohan Lal and sons situated at Sadar Bazar Ahmadgarh. Sh. Balbir Singh, Ajit Singh and Malkiat Singh sons of Didar Singh son of Roor Singh, residents of Khera, Tehsil and District Ludhiana are owners of a shop situated at Sadar Bazar, Mandi Ahmadgarh on which two Chaubaras, four stair cases and a toilet have been constructed and which is bounded as under:-
East: Road
West: Road
North: Property of Daljit Singh
South: Property of Pandit Lal Chand
Now I have taken both the Chaubaras of upper floor together with stair cases and toilet from the owners of shop on rent at the rate of ` 130/- per month half of which comes to ` 65/-. At present a case with regard to redemption of shop and Chaubaras is pending, therefore the rent would start from the date of taking possession Civil Revision No.1875 of 1987 (O&M) -6- by me after decision of this case and after redemption of abovesaid shop and Chaubaras. After getting the possession, I would make the payment of rent every month in advance. During the period of tenancy, I would not sublet the abovesaid Chaubaras to any other person. I would not change its shape. I would properly maintain it and in case I do not comply with these conditions, I would be liable to be evicted. I would not dismantle the Chaubaras. Therefore,, this rent note has been got scribed for a period of six months so that it may serve as an authority at the time of need."(underlining mine) "Statement of Ajit Singh and Malkiat Singh, Plaintiffs and Teja Singh, Balbir Singh, Plaintiff (On S.A.) and the counsel for the Plaintiffs.
Stated that the chubaras above the shop in dispute have been given on rent to Sohan Lal @ Rs.130/- per month. This Sohan Lal has executed a rent deed in our favour. We do not claim any relief against this Sohan Lal, Defendant. We accept him as our tenant. The name of Sohan Lal, Defendant may be deleted. Power of Attorney is Exhibit P.X."
IV. Basis of findings by Courts below
5. The landlords' petition was dismissed by the Rent Civil Revision No.1875 of 1987 (O&M) -7- Controller on its finding that the landlord's possession could not be said to have been perfected till the final decree of redemption was passed and consequently, the landlords could not treat themselves as competent to institute the petition for eviction against the tenant on the basis of the rent note. In appeal by the landlords, the appellate authority reversed the decision and held that the tenant had forfeited the tenancy by denying the landlords' right and the non-payment of the rent despite the undertaking given by him in the rent note made him liable to be evicted in terms of the provisions of the rent note. The appellate Court reversed the decision holding that the tenant could not deny the landlords' entitlement to collect the rent and the non-payment by him despite the rent note rendered him liable to be evicted. It is this order of eviction which is in challenge before the revision petition.
V. Effect of preliminary decree and final decree in mortgage proceedings
6. I have extracted the contentions of the parties and the manner of adjudication rendered and I, therefore, do not proceed to reproduce the tenant's contention before this Court again. The crucial point that would require to be seen is whether the rent note created an existing status of the landlords and tenant to allow for the landlords to file a petition for eviction, complaining of default in payment of rent and denial of title. I have extracted the rent note which spells out that the rent would start from the taking of Civil Revision No.1875 of 1987 (O&M) -8- possession by him after the decision of this case and after the redemption of the shop and the chubaras. The date of taking of possession after decision of the case and after redemption is the issue that would require to be dealt with at some length.
7. A suit for redemption of an usufructuary mortgage would proceed under the Civil Procedure Code in two stages: (i) the Court shall first determine the liability to make the payment and resolve the issue of taking accounts before a plaintiff suing for redemption obtains possession of the property. The Court, on being satisfied that the time for redemption had expired, shall spell out the amount that is payable to the mortgagee and specify the time before when the amount has to be paid. A decree that is drawn up alongside a judgment providing for a preliminary decree for redemption is under the Civil Procedure Code in the manner referred under Order 34 Rule 7. In this case, preliminary decree for redemption spells out a time before when the amount has to be paid to the mortgagee. The landlords' contention is that the amount of ` 40,000/- had been deposited within the period as spelt out in the preliminary decree and as far as the landlord was concerned that constituted the terminus quo of proceedings as regards the ascertainment of his rights. The learned senior counsel Shri Sibal would argue that when the mortgagee himself was not raising a dispute nor did he prefer an appeal against the judgment granting a preliminary decree, it does not lie in the mouth of the tenant to Civil Revision No.1875 of 1987 (O&M) -9- contend that the landlord is not his landlord and that the right to collect rent from him has not arisen till the final decree is passed. According to him, the judgment became final and determined his rights in full on the day when the amount of ` 40,000/- was deposited in Court.
8. There is no doubt, no compulsion under the scheme of the Civil Procedure Code or under the substantive provision of the Transfer of Property Act for compelling the party to the two stages of preliminary decree and final decree. There is consequently no bar against a Court from passing even a final decree for redemption if the amount is deposited and no further accounts are required to be drawn up. The judgment debtor would then become liable for delivering of possession forthwith on the passing of final decree and if such possession is resisted, the decree holder would always be entitled to seek for a warrant of possession to be issued through Court. A decree itself as defined under the Civil Procedure Code under Section 2(2) could either be preliminary or final. This must only mean that the Civil Procedure Code recognizes a dichotomy of a decree that could be either one of them. Consequently, if the decree spells out and used in expression of either one of them, it cannot be understood the other has ceased to exist. To extend the logic, if the trial Court had provided for a preliminary decree for redemption after determining the amount payable and the time before when the amount has to be paid, it cannot be assumed that the Civil Revision No.1875 of 1987 (O&M) - 10 - Court was passing a final decree. It must be taken as what it did pass.
9. The question could be then whether a person, who deposits the money could assume a preliminary decree to be final. This again is not a matter of discretion for a party but he has perforce to follow a procedure which the Code itself provides. On the deposit of the amount as directed, in order to secure the fruits of such decree, the law requires an application for passing of final decree. It may be unnecessary in situation where the person, who has to deliver the possession, delivers the property voluntarily. A mortgagee, who is in possession of the property, could deliver up possession and render otiose a necessity to apply for passing of final decree. Alternatively, if a tenant under mortgagee was in possession, a tenant can deliver up possession and secure back possession or secure back possession from the landlord by taking a fresh document. In this case, at the time when a rent note was made, if the mortgagee himself had joined up and allowed for the property as having been taken possession of by the landlord and a rent note was made by the landlord in his capacity as such, then the requirement of a fresh application for final decree may not have been necessary. On the other hand, if the tenant stated that he would make the payment of rent every month after the decision in the case and after the redemption of the above shop, to me, it admits of no ambiguity that the tenant was assuming, which he was entitled to, that the liability Civil Revision No.1875 of 1987 (O&M) - 11 - would begin only from the date when the landlord took juridical possession in the manner permissible by law. That is precisely the procedure which Order 34 Rule 8 CPC provides for. Such provision contemplates passing of a final decree in redemption suit. The final decree arises by the plaintiff depositing the amount as required and requiring the mortgagee to deliver up the document and deliver possession. I have not any information that the mortgagee had delivered up all the original documents of title even at the time when a compromise was entered into between the landlord and the tenant, for, the delivery of documents is as important in suit for redemption of mortgage of delivery of property itself. Rule 8 states that before a final decree declaring the plaintiff from all rights to redeem the mortgage property is passed, the plaintiff shall make a payment into Court of all amounts due under Rule 7(1). In this case, the landlord has gone as far as to deposit the money. The further procedure which Rule 8 contemplates is that the Court shall on the application made by the plaintiff in this behalf pass a final decree and it is this final decree that sets out the procedure for how the property shall be delivered.
VI. The imperatives of final decree in mortgage suit
10. The Supreme Court pointed out to distinction between a final decree in partition suit and a final decree in mortgage suit in Shub Karan Bubna @ Shub Karan Prasad Bubna Versus Sita Saran Bubna and others -(2009) 9 SCC 689. The judgment rooted Civil Revision No.1875 of 1987 (O&M) - 12 - for legislative change in this regard for a seamless procedure from the time of institution till the time of securing the reliefs in real terms without stumbling blocks of preliminary decree or final decree and the necessity of having to file such a separate position later. The Court said, "23 The century old civil procedure contemplates judgments, decrees, preliminary decrees and final decrees and execution of decrees. They provide for a "pause" between a decree and execution. A "pause" has also developed by practice between a preliminary decree and a final decree. The "pause" is to enable the defendant to voluntarily comply with the decree or declaration contained in the preliminary decree. The ground reality is that defendants normally do not comply with decrees without the pursuance of an execution. In very few cases the defendants in a partition suit voluntarily divide the property on the passing of a preliminary decree. In very few cases, defendants in money suits pay the decretal amount as per the decrees. Consequently, it is necessary to go to the second stage, that is, levy of execution, or applications for final decree followed by levy of execution in almost all cases. 24 to 28 xxx xxx xxx
29. The present system involving a proceeding for Civil Revision No.1875 of 1987 (O&M) - 13 - declaration of the right, a separate proceeding for quantification or ascertainment of relief, and another separate proceeding for enforcement of the decree to secure the relief, is outmoded and unsuited for present requirements. If there is a practice of assigning separate numbers for final decree proceedings, that should be avoided. Issuing fresh notices to the defendants at each stage should also be avoided. The Code of Civil Procedure should provide for a continuous and seamless process from the stage of filing of suit to the stage of getting relief.
30. In money suits and other suits requiring a single decree, the process of suit should be a continuous process consisting of the first stage relating to determination of liability and then the second stage of execution and recovery, without any pause or stop or need for the plaintiff to initiate a separate proceedings for execution. In suits for partition and other suits involving declaration of the right and ascertainment/quantification of the relief, the process of the suit should be continuous, consisting of the first stage of determination and declaration of the right, second stage of ascertainment/ division/quantification, and the third stage of execution to give actual relief." Civil Revision No.1875 of 1987 (O&M) - 14 - As the law now stands, the preliminary decree has only determined the rights of parties. The purchases of equity of redemption obtains a right to possession only on the passing of final decree. There are three clauses made under Rule 8 and it would be useful to refer to all of them.
"8. Final decree in redemption suit.-(1) Where, before a final decree debarring the plaintiff from all right to redeem the mortgaged property has been passed or before the confirmation of a sale held in pursuance of a final decree passed under sub-rule (3) of this rule, the plaintiff makes payment into Court of all amounts due from him under sub-rule (1) of rule 7, the Court shall, on application made by the plaintiff in this behalf, pass a final decree, or, if such decree has been passed, an order-
(a) ordering the defendant to deliver up the documents referred to in the preliminary decree, and, if necessary,-
(b) ordering him to re-transfer at the cost of the plaintiff the mortgaged property, as directed in the said decree, and, also, if necessary,-
(c ) ordering him to put the plaintiff in possession of the property.
(2) Where the mortgaged property or a part thereof Civil Revision No.1875 of 1987 (O&M) - 15 - has been sold in pursuance of a decree passed under sub- rule (3) of this rule, the Court shall not pass an order under sub-rule (1) of this rule, unless the plaintiff, in addition to the amount mentioned in sub-rule (1), deposits in Court for payment to the purchaser a sum equal to five per cent, of the amount of the purchase- money paid into Court by the purchaser.
Where such deposit has been made, the purchaser shall be entitled to an order for repayment of the amount of the purchaser-money paid into Court by him, together with a sum equal to five per cent thereof.
(3) .............."
11. The three stages which are brought out through this provision relate to delivering up of documents at the first stage ordering him to retransfer at the cost of the plaintiff the mortgage property in the manner directed and if necessary, ordering possession of the property to the plaintiff. The grant of possession under the preliminary decree and looking for delivery of documents later is truly putting the cart before the horse. The landlord, who secured a compromise with the tenant, was bargaining for possession of the property after the decision and after the redemption. Redemption is not a one way affair. A mere deposit of money does not constitute a redemption. In all suits for redemption, settling the accounts and delivery of documents are necessary Civil Revision No.1875 of 1987 (O&M) - 16 - concomitants and that is the process which the plaintiff has to undertake before he secures not merely the right of possession but also to enjoy the fruits of the decree. I would read down the statement made under the circumstances by the tenant before the Court on 24.07.1980, which I have extracted above, as a statement in the context that he had conceded to the landlord accepting him as a tenant which was to effective in future on the day when redemption was complete.
VII. Conclusion
12. The petitioner's action for ejectment could not have been filed unless he has a subsisting right to prosecute. That right did not arrive to him so long as the final decree had not been passed and there required a statutory compulsion for such a final decree. The ejectment ordered by the appellate Court was therefore erroneous and liable to be set aside.
13. The order of the Rent Controller is restored and the civil revision is allowed.
(K.KANNAN) JUDGE 31.07.2012 sanjeev