Himachal Pradesh High Court
Mehar Chand And Ors. vs Lachhmi And Ors. on 6 January, 1994
Equivalent citations: AIR1994HP172
JUDGMENT A.L. Vaidya, J.
1. One Shri Kanhya Ram, predecessor-in-interest of the respondents filed a suit for declaration that the plaintiff and pro forma defendants have become owners in possession of the suit land as described in the plaint on the ground that the suit land was mortgaged with the predecessor-in-interest of the plaintiff and pro forma defendants for more than forty years ago and by means of efflux of time, the right to redeem enjoyed by the defendants mortgagors had been extinguished. The case of the plaintiffs as pleaded had been that plaintiffs and pro forma defendants were in actual physical possession of the suit land and defendant Smt. Devku was the last mortgagor of the said land. It was further pleaded by the plaintiffs that the defendants by undue influence and by fraud got a gift deed in respect of the mortgaged land and upon the strength of that void gift deed they applied to the Assistant Collector, Kandaghat under Section 4 of the Redemption of Mortgages Act and got a redemption order on 23-1-1978 whereby the learned Collector ordered the redemption of the suit land and delivery of its possession to the defendants. Plaintiffs also averred that the order of the Collector dated 23-1-1978 was void, illegal and without jurisdiction for the reasons that the mortgage had already become barred by time and was not redeemable, the amount of the mortgage money was not deposited in accordance with law. It was also pleaded that the Collector ignored the fact that a civil suit was pending in the Court of Sub-Judge, 1st Class, Kandaghat filed by Smt. Devku challenging the validity of the gift deed alleged to have been executed by her and from which the defendants are alleged to have derived their title. The plaintiffs also alleged that the Assistant Collector otherwise had no jurisdiction to decide the complicated and intricate questions of law in such a summary way under the provisions of the Himachal Pradesh Redemption of Mortgages Act and the matter was required to be left to the adjudication of the Civil Court. Through the suit the plaintiffs sought the declaration that the plaintiffs and pro forma defendants had become owners in possession of the suit land by lapse of time. The mortgage having not been redeemed within the stipulated period and on that account, it was prayed that the order of the Assistant Collector dated 23-1-1978 bedeclared to be void and illegal. As a consequential relief, permanent injunction had been sought for restraining the defendants from dispossessing the plaintiffs from the suit land. It was also prayed that in case in pursuance of the order passed by the Assistant Collector the plaintiffs and pro forma defendants are dispossessed, a decree for possession in that event may be passed.
2. The suit was contested and the aver ments made in the plaint as pleaded were not admitted.
3. The parties were put to trial on the following issues by the trial Court :--
1. Whether the mortgage in question has become time-barred, if so, its effect?
...OPP.
2. Whether the defendants are not entitled for redemption as alleged ?
...OPP.
3. Whether the order of the Assistant Collector, Ist Grade is null and void as alleged?
...OPP.
4. Whether the plaintiff is entitled for possession as alleged?
...OPP.
5. Whether the suit is not competent ?
...OPP.
6. Whether the Civil Court has no jurisdic tion to try the suit?
...OPD.
7. Whether the suit is collusive as alleged ?
...OPD.
8. Whether the plaint is not properly valued for Court-fees and jurisdiction as alleged?
...OPD.
9. Relief.
4. Issues Nos. 1 to 3 were disposed of in favour of the plaintiff, while under issue No. 4 it was held that the plaintiffs have been dispossessed and they were entitled to possession. Issues Nos. 5, 7 and 8 were decided against the defendants for want of evidence. Issue No. 6 was decided in the negative. The trial Court as such passed a decree for possession of the suit land in favour of the plaintiffs and against the defendants.
5. The aforesaid judgment and decree were assailed in an appeal before the District Judge, Solan, who after hearing the parties, dismissed the appeal and maintained the judgment and decree of the trial Court.
6. The aforesaid judgment and decree of the Courts below have been assailed in the present appeal on various grounds.
7. I have heard the learned counsel for the parties and have also gone through the record.
8. As referred above, the present appellants have assailed the decree under appeal on various grounds, but at present reference can safely be made to grounds No. 5 and 7 referred in the grounds of appeal which are reproduced hereunder for the sake of convenience :--
"5. That the Courts below have failed to take into consideration the fact that Shri Gurusaran, transferee of mortgagee rights by Deep Ram and Anokhi Ram had been admitted on 29-4-1952 and acknowledged under his signatures the subsisting mortgage in favour of the appellants-predecessor, and as such, a fresh period of limitation of 30 years will start from the said date. The learned Court should have taken notice of the said fact and dismissed the suit. Though the fact is admitted by the parties yet the factum of the report Roznamcha dated 29-4-1952, No. 273, having been signed by Gursaran was not in the knowledge of the appellants and the said evidence could not be produced with due diligence. The appellants are submitting the copy of the report which may be admitted in evidence by way of additional evidence. The production of the said evidence is essential for satisfactorily pronouncing the judgment and for doing substantial justice to the parties."
"7. That the Court below has acted with material illegality in dismissing the application for additional evidence when case was made out under Order 41, Rule 27, C.P.C. for production of additional evidence."
9. During the pendency of the case before the lower appellate Court, the present appellants submitted an application under Order 41, Rule 27 read with Section 151, C.P.C. for production of additional evidence. It was pleaded in that application that in order to decide important question of law as to whether the redemption application was brought within limitation and during the subsistence of valid mortgage, the production of report No. 273, dated 21-4-1952 entered in the Roznamcha of the Patwari Halqua and made by Gursaran deceased, the predecessor-in-interest of the plaintiffs and duly signed by him and copy of consequent mutation No. 108, dated 28-4-1952 in respect of transfer of mortgagee rights in respect of the suit land Khasra No. 134 is necessary in the interest of justice as Shri Gursaran, predecessor-in-interest pf the plaintiffs had acknowledged the subsisting mortgage on the said dates which the appellants, notwithstanding the exercise of due diligence, had not the knowledge at the time when the decree appealed against was passed. It was also pleaded in this application that on the basis of documents referred to above, which could not be discovered at that time, the suit of the plaintiffs was wholly misconceived and the order of redemption passed by Assistant Collector, 1st Grade, Kandaghat was definitely a valid order. Through this application, it was prayed that copy of report No. 273 entered in Roznamcha Waqiati dated 21-4-1952, along with the mutation No. 108 by which the mortgage was created in favour of Gursaran showing the subsisting mortgage may kindly be allowed to be produced.
10. This application was contested on behalf of the opposite party.
11. While rejecting the application under Order 41, Rule 27, C.P.C, the lower appellate Court observed that the said provision under Order 41, Rule 27, C.P.C. requires that the evidence can be allowed to be admitted in evidence if the person applying is in a position to show that he was unaware of that evidence before the passing of the decree and it was all because of the diligence on his part that he could lay hands thereon. It was further observed by the lower appellate Court that the perusal of the application and the affidavits as placed on the file shows that the report No. 273 dated 21-4-1952 now sought to be adduced in evidence has not been shown to be not in the knowledge of the appellants prior to the passing of the decree, when this report had duly been lodged in the daily diary book of the Patwari and, therefore, the applicant could not agitate that he was unaware of it. According to learned lower appellate Court, everybody was supposed to be vigilant at the time of the filing of the suit or reply thereto, which the appellants to my mind, was not. It was also observed that since Order 41, Rule 27, C.P.C. only deals with the diligence on the part of the appellants and not the negligence, so the application under Order 41, Rule 27, C.P.C. cannot be accepted as even from the wording thereof. The applicant had only proved his negligence and not the diligence. The application as such was rejected.
Order 41, Rule27, C.P.C. reads as under:--
"27. Production of additional evidence in Appellate Court.-- (1) The parties to an appeal not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if-- (a) The Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to adduce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
12. The appellants in their application had specifically averred that the appellants notwithstanding the exercise of due diligence had not the knowledge at the time when the decree was passed about the existence of the aforesaid fact sought to be adduced as an additional evidence. This application was supported by an affidavit. The reply submitted by the opposite party to this application denied the allegations made in the petition and stated that the production of report No. 273, dated 21-4-1952 alleged to have been made by Shri Gursaran was not required to be produced for effective decision of the appeal. However, in reply it was nowhere pleaded that such a report pertaining to the transfer of mortgagee rights in respect of the suit land as pleaded by the appellants in the application was not made at all.
13. Any way, the fact remains that the existence of this report was not denied, but it was averred that such a report was not necessary and does not fall within the ambit of Order 41, Rule 27, C.P.C. Needless to say, the reply was not supported by any affidavit.
14. It may be very specifically referred here that the case of the appellants as made out in the application under Order 41, Rule 27, C.P.C. had been that on account of the said . report No. 273, dated 21-4-1952 and the mutation No. 108, dated 28-4-1952 in respect of the transfer of the mortgagee rights, Shri Gursaran, predecessor-in-interest of the plaintiffs had acknowledged the subsisting mortgage on the said date, meaning thereby on account of that acknowledgement, the period of limitation for. redemption stood extended under the law. It may not be out of place to mention here that the entire case of the plaintiffs revolves on the point of limitation. The plaintiffs in order to get the decree prayed for have to establish that on 1-6-1977, when the application before the Assistant Collector was submitted by the mortgagor for redemption of the mortgage, the stipulated period of thirty years had already elapsed and the right to redeem as such was without limita-
tion. There is no doubt that the original mortgage was created on 29-10-1946 and the mutation to that effect was sanctioned on June 11, 1947 and for these dates/there is no dispute between the parties. In case the period of limitation starts from 29-10-1946, the application preferred on 1-6.-1977 for redemp-tion definitely was beyond thirty years of the stipulated period prescribed by law. On the other hand, in case as pleaded by the present appellants in their application preferred under Order 41, Rule 27, C.P.C., the transfer of mortgagee rights on 21-4-1952 amounted to the acknowledgment of the subsisting mortgage, it would extend the limitation to the year 1982 and for that purpose the documents sought to be adduced as additional evidence were required to be brought on record.
15. It has been contended on behalf of the plaintiff/respondent before this Court that there was no pleading of the present appellants regarding the aforesaid factum of acknowledgment and on that account, this application could not be favourably considered.
16. It is correct that there is no such specific plea raised by the present appellants except the allegations made in the petition preferred under Order 41, Rule 27, C.P.C. before the lower appellate Court. However, it cannot be denied that the entire case of the parties revolves on the point of limitation. The plaintiffs' case has been that the application for redemption was made after thirty years which fact is denied by the opposite party. In order to. prove these facts which is the main dispute between the parties and also the scope of issue No. 1, all the essential documents concerning the mortgage under reference were essential to be brought on record and the proposed additional evidence sought to be brought on record by the appellants cannot be made an exception.
17. The appellants by way of swearing an affidavit deposed that notwithstanding the exercised of due diligence, the proposed evidence was not within their knowledge. No counter-affidavit to that effect has been brought on record by the opposite side and this affirmation made by the appellants has to be accepted.
18. Otherwise also, these documents are required as they concern the mortgage under reference pertaining to the suit land and on the basis of these documents, the parties have derived their title and and on account of that the proceedings before the Assistant Collector and proceedings before the Civil Court could come into being. These documents as such would be required by the Court in order to determine the real controversy between the parties and to pronounce the judgment on that basis.
19. The documents sought to be addued as additional evidence are the certified copies of public documents prepared by the Revenue Officers in the discharge of their official duty. These are not at all the private documents which could be manufactured at any time. In that view of the matter also, there appears to be a very substantial cause to bring these documents on record in order to appreciate the parties' case pertaining to the factum of limitation.
20. The lower appellate Court as such acted illegally in disallowing the application of the present appellants under Order 41, Rule 27 read with Section 151, C.P.C., but on the basis of the circumstances discussed above, this application submitted before the lower appellate Court is accepted.
21. In view of the foregoing reasons, the present appeal is accepted and the judgment and decree passed by the lower appellate Court is set aside and the case is remanded back to the lower appellate Court with a direction to examine the additional evidence as referred to above and afford the opposite party an opportunity to rebut the said additional evidence and after hearing the parties dispose of the appeal on merit in accordance with law. Parties are, however, directed to appear before the District Judge, Solan on March 8, 1994. The record of the trial Court as well as of the lower appellate Court along with the copy of this order be sent forthwith to the District Judge, Solan without any undue delay.