Himachal Pradesh High Court
Hukam Chand vs Jayoti Parkash on 29 September, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 401 of 2003 .
alongwith RSA No. 644/2012 Reserved on: 28.9.2015 Decided on: 29.9.2015 ______________________________________________________
1. RSA No. 401 of 2003 Hukam Chand. ...Appellant.
of
Versus
Jayoti Parkash. ...Respondent.
2. RSA No. 644 of 2012
Hukam Chand.
rt Versus
...Appellant.
Jayoti Parkash. ...Respondent.
______________________________________________________________ Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting?1 Yes In both the appeals:
For the Appellant : Mr. Y.P. Sood, Advocate.
For the Respondent : Mr. Ajay Kumar, Sr. Advocate with Mr. Dheeraj K. Vashishta, Advocate.
____________________________________________________________ Justice Rajiv Sharma, Judge.
Since fate of RSA No. 644/2012 is based on the outcome of RSA No. 401/2003, as such, both the appeals 1 Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 19:01:32 :::HCHP 2 were heard together and are being disposed of by a common judgment. However, in order to maintain clarity, facts of RSA .
No. 401/2003 have been taken into consideration.RSA No.401/2003
2. This Regular Second Appeal is directed against the judgment and decree dated 26.6.2003 rendered by the of Additional District Judge, Mandi in Civil Appeal No. 117 of 1997.
3. rt RSA No. 644/2012 This Regular Second Appeal is directed against the judgment and decree dated 8.6.2012 rendered by the Additional District Judge, Fast Track Court, Mandi in Civil Appeal No. 89 of 2009.
4. Appellant-plaintiff (hereinafter referred to as the 'plaintiff' for convenience sake) instituted a suit for possession by way of redemption of shop in dispute situate on the ground floor comprised in Khasra No.311, Khata Khatauni No. 318/494 (old 301/481) measuring 19.50 Sq. M. situated in Moti Bazar, Mohal Suhra/366/6, Mandi Town, District Mandi on the averments that the plaintiff mortgaged the shop in dispute with defendant on 5.2.1987 for a consideration of Rs. 5,000/-. Defendant was put in ::: Downloaded on - 15/04/2017 19:01:32 :::HCHP 3 possession and it was agreed that the plaintiff is entitled to redeem the shop in dispute. Defendant was requested in .
September, 1992 to accept the amount and handover the possession. Defendant refused to vacate the shop despite notice dated 3.10.1992.
5. Defendant contested the suit. According to of defendant, the shop in question was rented out to him in February, 1987 on a rent of Rs. 700/- per month. A sum of tenant.
rt Rs. 22,000/- was paid to the plaintiff for inducting him as a Plaintiff in order to defeat the provisions of H.P. Urban Rent Control Act got the mortgage prepared. He signed the same as he was in dire need of shop.
6. Issues were framed by the Senior Sub Judge, Mandi. He decreed the suit on 24.9.1997. Defendant filed an appeal against the judgment and decree dated 24.9.1997 before the learned Additional District Judge. He allowed the appeal on 26.6.2003. Hence, the present appeal. It was admitted on the following substantial question of law:
"Whether the findings of the learned First Appellate Court below are vitiated on account of non-consideration and mis-interpretation of the material evidence and the document Ex. PW-1/D?
7. Plaintiff had also filed Civil Suit No. 120-1 of 2002 in the court of Civil Judge (Senior Division), Mandi for ::: Downloaded on - 15/04/2017 19:01:32 :::HCHP 4 recovery of Rs. 1,26,000/-. Plaintiff has averred that he has deposited a sum of Rs. 5,000/-on 22.10.1997 in the court of .
Senior Sub Judge after the judgment dated 24.9.1997 rendered in Civil Suit No. 145/1993. He was entitled to Rs.
3,500/- per month towards use and occupation charges from the defendant from November, 1999 to November, 2002 of amounting to Rs. 1,26,000/-.
8. The suit was contested by the defendant.
rt According to the defendant, plaintiff rented the shop in dispute @ 700/- per month in February, 1987. He has paid a sum of Rs. 22,000/- to the plaintiff to induct him as tenant.
9. Issues were framed by the Civil Judge (Senior Division), Court No.1 Mandi on 13.12.2004. He dismissed the suit on the ground that Regular Second Appeal was pending in this Court on 20.6.2009. Plaintiff filed an appeal before the Additional District Judge, Fast Track Court, Mandi. He dismissed the same on 8.6.2012. Hence, RSA No.644/2012.
10. Notice was issued in RSA 644/2012 on 27.11.2012. Both the appeals were ordered to be clubbed by the Court on 6.5.2013.
::: Downloaded on - 15/04/2017 19:01:33 :::HCHP 511. Mr. Y.P. Sood, learned counsel for the plaintiff, has vehemently argued that first appellate court in RSA No. .
401/2003 has misinterpreted Ex.PW-1/D. He has also contended that defendant was liable to pay use and occupation charges with effect from November, 1999 to November, 2002 @ Rs. 3,500/- per month. He has lastly of contended that the dispute between the parties before the first appellate court was whether the plaintiff was tenant or mortgagee.
12. rt Mr. Ajay Kumar, learned Senior Advocate, has supported the judgment and decree rendered by the first appellate court in Civil Appeal No.117 of 1997 assailed in RSA No. 401/2003 and has also supported the judgments and decrees passed by both the courts below which are assailed in RSA No. 644/2012.
13. I have heard the learned counsel for the parties and have gone through the records carefully.
14. Plaintiff has appeared in Civil Suit No. 145 of 1993 as PW-1. He has testified that he was owner of shop situated in Moti Bazar. He has mortgaged the same with the defendant on 5.2.1987 for a sum of Rs. 5,000/-. He has proved mortgage deed Ex.PW-1/D. He has sent the notice to ::: Downloaded on - 15/04/2017 19:01:33 :::HCHP 6 the defendant vide Ex.PW-1/B. He was ready and willing to pay Rs. 5,000/- to the defendant.
.
15. PW-2 Narender Chopra has deposed that plaintiff has mortgaged the shop with the defendant. PW-3 Naginder Sharma has proved map Ex.PW-3/A and PW-3/B.
16. Defendant has appeared as DW-1. He has also of admitted that the contents of document were read over to him by the Registrar and he after admitting the same to be rt correct put signatures on the same. DW-2 Kuber Chand has deposed that the premises were rented out to the defendant.
He has also admitted his signatures on Ex.PW-1/D.
17. Plaintiff has duly proved the execution of mortgage deed Ex.PW-1/D. The shop in question was mortgaged to the defendant for a sum of Rs. 5,000/-.
Defendant has admitted signatures on Ex.PW-1/D. The real controversy before the first appellate court was that whether the plaintiff was tenant or mortgagee. It is duly established from the evidence led by the parties that defendant was mortgagee and not tenant. There is no violation of the provisions of H.P. Urban Rent Control Act, 1987. Plaintiff has sent notice to the defendant for redemption of mortgage.
Defendant has not led any tangible evidence to establish that ::: Downloaded on - 15/04/2017 19:01:33 :::HCHP 7 he was inducted as a tenant. He has also not led any evidence that he has paid a sum of Rs. 22,000/- to the .
plaintiff at the time of execution of mortgagee deed Ex.PW-
1/D. Learned first appellate court erred in law by returning findings that there was violation of Indian Contract Act and section 52 of the Registration Act.
of
18. In the case of Om Prakash Garg vrs. Ganga Sahai and ors. reported in AIR 1988 SC 108, their rt lordships of the Hon'ble Supreme Court have held that after the redemption of mortgage, tenant is not entitled to protection of Rent Act. It has been held as under:
"[1] After hearing learned counsel for the appellant, we are satisfied that the order passed by the High Court does not call for any interference. The appellant who claims to be a tenant of the mortgagee Narain Prasad resisted the application made by the respondent-decree-holder Ganga Sahai under Order XXI, R. 35 of the Code of Civil Procedure, 1908 pleading inter alia that being a tenant of the mortgagee he was entitled to the protection of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. That objection of his was not sustained by the Executing Court and it accordingly issued a warrant of possession in favour of the decree-
holder. The appellant went up in appeal against the order of the executing Court. The Additional District Judge differed from the executing Court and held that the appellant being a tenant inducted into possession by the mortgagee was entitled to the protection of the Act and therefore could not be evicted in execution of the final decree for redemption, and further held that the respondent was only entitled to symbolical possession. Aggrieved, the respondent preferred an appeal to the High Court. By the order under appeal, a learned single Judge following the decision of this Court in M/s.::: Downloaded on - 15/04/2017 19:01:33 :::HCHP 8
Sachalmal Parasram v. Mst. Ratanbai, AIR 1972 SC 637 held that the lease was not an act of prudent management on the part of the mortgagee Narain Prasad within the meaning of S. 76(a) of the .
Transfer of Property Act, 1882 and therefore the alleged lease could not subsist after the extinction of the mortgage by the passing of the final decree for redemption and thus the appellant could not take advantage of the Act as there was no subsisting lease in his favour. After hearing the learned counsel, we are not persuaded to take a different view than the one reached by the High Court."
19. Their lordships in the case of Ishwar Dass Jain of vrs. Sohan Lal, reported in AIR 2000 SC 426, have dealt in detail Sections 34, 65 and 92 of the Indian Evidence Act.
rt It has been held as follows:
"...............The facts of the case of Ishwar Dass Jain were that the plaintiff had mortgaged the entire shop and his 5/6th share therein and gave possession of the whole shop to the defendant for Rs. 1,000/ -. He filed a suit for redemption and recovery of possession from the defendant. The mortgage deed stated that on redemption possession had to be delivered back to the mortgagor. On 1.2.1981 the plaintiff demanded production of the deed and possession on redemption. The defendant did not comply. The defence put up by the defendant was that there was no relationship of mortgagor and mortgagee between the parties, but that the relationship was as landlord and tenant. It was also alleged by the defendant that plaintiff was a man of substance and very rich and there was indeed no occasion to mortgage the same for a petty sum. Their Lordships have framed the following points for consideration:
(1) Whether the High Court can interfere under Section 100, CPC (as mentioned in 1976) with the findings of fact arrived at by the lower appellate Court if vital evidence which could have led to a different conclusion was omitted or if inadmissible evidence was relied upon which if omitted, could have led to a different conclusion? (2) Whether on the facts of the case, the mortgage was proved by the plaintiff by production of a certified copy of the deed?::: Downloaded on - 15/04/2017 19:01:33 :::HCHP 9
(3) Whether Section 92(1) of the Evidence Act could be a bar for proving a document to be a sham document?
(4) Whether the Exs. D2 to D5 were only extracts from account .
books and could not be treated as account books for purposes of Section 34 of the Evidence Act and were not admissible? (5) Whether the lower Courts had omitted vital evidence from consideration?
(6) Whether the mortgagee who got possession of the entire property under the deed of mortgage could be permitted to deny the title of the mortgagor either wholly or partly?
of (7) What relief?
[12] Their Lordships of the Hon'ble Supreme Court have held as under:
The point here is whether oral evidence is admissible under Section rt 92(1) of the Evidence Act to prove that a document though executed was a sham document and whether that would amount to varying or contradicting the terms of the document. The plea of the defendant in the written statement was that mortgage deed though true was a sham document not intended to be acted upon and that it was executed only as a collateral security. It was pleaded that the plaintiff demanded that a mortgage deed be executed by defendant as "collateral security in order to guarantee that the shop will be vacated by the defendant whenever demanded by the plaintiff" and that this was done to circumvent the rent control law. It was said that the alleged transaction of mortgage was a sham transaction, executed only with aforesaid object. The consideration of Rs.
1,000/- "was only in the nature of a collateral security or 'pagri'." The plaintiff was and is a rich man and there was no occasion for him to mortgage his property. It was further pleaded:
The plaintiff thus demanded Rs. 1,000/- from the defendant by way of security and asked the defendant to thumbmark some writing to arm the plaintiff with a right to get the shop vacated according to his sweet will. The defendant who was in dire necessity of the shop, had to agree on the said condition put forward by the plaintiff." But the question is whether on the facts of this case, the reason given by the defendant in his evidence for treating the mortgage as a sham document, can be accepted.::: Downloaded on - 15/04/2017 19:01:33 :::HCHP 10
The reason given by the defendant appears to us rather curious. One can understand a debtor incurring a debt and executing a deed as collateral security. There is no such situation here. Further, if it .
is a deed of collateral security by defendant, then the defendant would have had to execute a deed in favour of the plaintiff and not vice-versa. Here the plaintiff-owner has mortgaged his shop to the defendant, as security. The plea and evidence of collateral security offered by the defendant appears to us not to fit into a situation where the plaintiff has executed the mortgage. Obviously, if the plaintiff wanted to secure something by way of an additional of security from the defendant, the normal course would have been to ask the defendant to give such a security and to for the plaintiff to execute a mortgage. Thus the reason mentioned and evidence given by the defendant as to why a sham document was executed falls to rt the ground.
Now under Section 34 of the Evidence Act, entries in "account books" regularly kept in the course of business are admissible though they by themselves cannot create any liability. Section 34 reads as follows:
Section 34. Entries in books of account when relevant.-Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.
It will be noticed that sanctity is attached in the law of evidence to books of account if the books are indeed "account books i.e. in original and if they show, on their face, that they are kept in the "regular course of business". Such sanctity, in our opinion, cannot attach to private extracts of alleged account books where the original accounts are not filed into Court. This is because, from the extracts, it cannot be discovered whether accounts are kept in the regular course of business or if there are any interpolations or whether the interpolations are in a different ink or whether the accounts are in the form of a book with continuous page numbering. Hence, if the original books have not been produced, it is not possible to know whether the entries relating to payment of rent are entries made in the regular course of business.::: Downloaded on - 15/04/2017 19:01:33 :::HCHP 11
The judgments of all the three Courts therefore are set aside. The suit is decreed for redemption as follows. The appellants are entitled to redeem the usufructary mortgage and get possession of .
the suit shop from the defendant, if the appellants deposit in the trial Court, within three months from today, the sum of Rs. 1,000/- There is no need to deposit any interest inasmuch as according to the deed, the defendant was to be in possession and interest was to be set-off against the occupation of the shop. We direct that on such deposit of Rs. 1,000/-, the defendant will produce the mortgage deed into Court for cancellation. In case he does not of produce the deed, within the said period, it will be deemed that the mortgage is cancelled. On such deposit of Rs. 1,000/- as aforesaid, the defendant shall restore possession to the appellants. On such restoration of possession, defendant shall be entitled to withdraw rt the sum of Rs. 1,000/-. In case the defendant does not surrender possession as aforesaid, it will be open to the appellants to seek possession by way of execution."
20. The substantial question of law is answered accordingly.
21. Accordingly, RSA No. 401/2003 is allowed.
Judgment and decree dated 26.6.2003 passed by the Additional District Judge; Mandi in Civil Appeal No.117 of 1997 is set aside. Judgment and decree dated 24.9.1997 passed by the Senior Sub Judge in Civil Suit No. 145 of 1993 is restored. Since a sum of Rs. 5,000/- stands deposited with the trial court, defendant is directed to vacate the shop in question and handover its possession to the plaintiff on or before 31.12.2015.
::: Downloaded on - 15/04/2017 19:01:33 :::HCHP 1222. In RSA No. 644 of 2012, both the courts below have dismissed the suit preferred by the plaintiff on the .
ground that RSA No. 401/2003 was pending before this Court. Both the courts below have not returned any findings whether the defendant was liable to pay use and occupation charges amounting to Rs. 1,26,000/-. The plaintiff has not of led any evidence that rent of the shop in question could be Rs. 3,500/- per month. However, the Court can take judicial rt notice of the fact that the shop in question is situated in Moti Bazar, Mandi, the rent could not be less than Rs. 2,000/.
Thus, the defendant is liable to pay rent @ Rs. 2,000/- per month with effect from November, 1999 to November, 2002 = Rs. 74,000/-. In view of the fact that judgment passed by the first appellate court in Civil Appeal 117 of 1997 is set aside, the judgments and decrees rendered by both the courts below assailed in RSA No. 644 of 2012 are liable to be set aside.
Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.
(Justice Rajiv Sharma), Judge.
29.9.2015 *awasthi* ::: Downloaded on - 15/04/2017 19:01:33 :::HCHP