Jammu & Kashmir High Court
Kuldip Raj Gupta vs Yog Raj on 25 August, 2015
Bench: Muzaffar Hussain Attar, B S Walia
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
LPAC No.35/2004
c/w
LPAC No.2/2005
LPAC No.3/2005
LPAC No.4/2005
LPAC No.5/2005
LPAC No.6/2005
Date of order: 25.08.2015
Kuldip Raj Gupta V. Yog Raj
Coram:
Hon'ble Mr. Justice Muzaffar Hussain Attar, Judge
Hon'ble Mr. Justice B S Walia, Judge
Appearing Counsel:
For the appellant(s) : Mr. A. V. Gupta, Sr. Advocate with
Mr. Aditya Gutpa, Advocate.
For the respondent(s) : Mr. Virender Bhat, Advocate.
(a) Whether approved for reporting in
Digest/Law Journal : Yes
(b) Whether approved for reporting in
Press/Media : ---
Muzaffar Hussain Attar (Oral)
1. The appellant owner of a shop situated at City Chowk, a prime location in Jammu, mortgaged the same in favour of the respondent. Appellant instituted a suit for redemption of mortgaged property, which landed in the court of Munsiff (Sub Registrar), Jammu. On 02.12.1983, the appellant and respondent entered into a compromise. The terms and conditions of the compromise are taken note of:
(a) The defendant shall deliver the possession of the suit shop to the plaintiff on 1-1-1989 as the property stands redeemed.
(b) The defendant shall pay compensation for use and occupation of the suit shop at such rate as may be fixed by the plaintiff until the possession of the shop is so delivered to the plaintiff.
(c) The parties shall bear their own costs.
2. In the memo of compromise, it was inter alia agreed and decided between appellant and the respondent that the respondent/defendant shall deliver the possession of suit shop to the plaintiff on 1-1-1989 as the property stands redeemed; the defendant shall pay compensation for use and occupation of the suit shop at such rate as may be fixed by the plaintiff until the possession of the shop is so delivered. The learned Trial Court passed a decree on the basis of aforesaid compromise on 2.12.1983 itself.
3. When the defendant did not hand over the possession of the suit shop to the appellant as was agreed upon in the compromise deed, the appellant filed application for execution of the compromise decree.
4. During the pendency of the execution petition before the executing court, the respondent instituted civil original suit challenging the compromise decree on the ground that the respondent had not executed the memo of compromise and his signature on the same was forged.
5. In the suit, the ad-interim was passed in favour of the respondent where-under the operation of compromise decree was stayed. The suit filed by respondent was ultimately dismissed by the learned Trial Court on 30.04.1997. The appeal filed against the decree and judgment of the Trial court also suffered collapse and was dismissed by the appellate court on 31.03.2001. The LPA No.59/2001 filed against the decree and judgement was also dismissed by this Court on 30.07.2001. Thereafter SLP filed against the said judgment was also dismissed by Hon'ble the Supreme Court. After the dismissal of the SLP, the compromise decree was executed and the possession of the shop was handed over to the appellant.
6. The appellant thereafter filed six suits for compensation for different periods of time in the court of District Judge, Jammu against the respondent/defendant. The District Judge Jammu by its judgement and decree dated 25.09.2002 disposed of all the suits. The operative part of the impugned judgement of the District Judge Jammu is taken note:
In view of the above discussion therefore, decrees in favour of plaintiff and against the defendant are passed for Rs.1,04,000/- at the rate of Rs.6000/- per month w.e.f. 1.10.1990 to 10.03.1992 in Suit No.31/Civil instituted on 10.3.1992; for Rs.1,40,400/- at the rate of Rs.6000/- per month w.e.f. 11.3.1992 to 21.2.1994 in Suit No.38/Civil instituted on 21.2.1994; for Rs.44,200/- at the rate of Rs.6000/- per month w.e.f 22.2.1994 to 4.10.1994 in Suit No.25/COS instituted on 4.10.1994; for Rs.1,32,600/- at the rate of Rs.6000 per month w.e.f. 5.10.1994 to 6.8.1996 in suit No.28/Civil instituted on 6.8.1996 and for Rs,2,16,000/- at the rate of Rs.6000/- per month w.e.f. 1.4.1997 to 31.3.2000 in Suit No.83/COS instituted on 31.3.2000. As claim w.e.f 7.8.1996 to 31.3.1997 is barred by limitation being beyond three years period of limitation and this compensation for this period is disallowed.
Cost to follow in all these Suits.
So far interest in all these suits are concerned same is discussed in Suit No.19 and as such plaintiff is not entitled to any interest pendent lite from the date of institution of suits in all these suits also.
However defendant is directed to make the payment of all these suits within a period of one month from the date of decree, in default plaintiff shall be entitled to 9% interest per annum on the sum decreed from the date of decrees. Copy of the judgment be placed with all the suits.
7. The respondent feeling aggrieved of the decree and judgment passed by the Learned District Judge challenged the same in Civil 1st Appeal before this Court. The learned Single Judge vide its judgement dated 27.07.2004 modified the decree and judgement of the District Judge Jammu. The original civil suits were tried and decreed by one common judgment and decree. The learned Single Judge also considered all the appeals together and decided the same in terms of the impugned judgment.
8. The appellant/plaintiff feeling aggrieved of the judgment of learned Single Judge has challenged the same in these six Letters Patent Appeals which are taken up together for their final disposal.
9. Learned counsel for the appellant supported the judgment and decree of ld. District Judge and submitted that the judgment of the learned Single Judge is unsustainable in law and prayed that same be set-aside.
10. Mr Bhat, learned counsel appearing for the respondent with his usual zeal and enthusiasm defended the judgment of the learned Single Judge. Learned counsel submitted that after the compromise decree was stayed by the Trial Court in a suit filed by his client, the possession of the respondent/defendant cannot be said to be unauthorised over the suit shop. Learned counsel also while supporting the reasoning given in the impugned judgment for modifying the decree and judgment of the learned Trial court submitted that the moment the compromise decree was stayed by the Trial Court in a suit filed by the respondent/defendant, the relationship of mortgager and mortgagee between the parties got revived and resultantly the respondent/defendant was liable to pay that compensation which he was paying during the time the mortgage was subsisting. Learned counsel further supported the reasoning given in the impugned judgment and submitted that the appellant/plaintiff was not entitled to institute fresh suit for compensation but in view of the compromise decree passed in the suit instituted by him against the respondent/defendant could in the execution proceedings pray for grant of appropriate compensation. Learned counsel accordingly prayed for dismissal of these appeals.
11. The issues of importance which require to be considered and decided in these appeals are as follows:
(a) Whether in pursuance of the staying of the compromise decree, the relationship of mortgager and mortgagee got revived between the parties?
(b) Whether in view of terms and conditions of the compromise deed, the fresh suit for seeking compensation was not maintainable?
12. The compromise deed which is taken note of in this judgment would specifically show that the property stood redeemed on 2.12.1983 when the compromise deed was executed by the parties. The respondent/defendant was provided huge time for handing over the possession of the suit shop to the appellant/plaintiff and the date of handing over the possession was fixed on 1.1.1989. The compromise deed between the parties binds the parties and in view of the terms and conditions thereof property stood redeemed on the date of execution of compromise deed viz. 2.12.1983. On 2.12.1983, the relationship of mortgager and mortgagee between the parties came to an end.
13. The challenge thrown to the compromise decree on the ground that compromise deed was not executed by the respondent/defendant and his signature was forged on it was dismissed right from the Trial Court to the Hon'ble Supreme Court. The challenge thrown to the compromise decree having suffered collapse, the compromise decree revived from the date it stood passed by the learned Trial Court. In terms of the interim orders passed by the courts at various levels, the compromise decree was stayed. The effect of the stay of compromise decree would be that the respondent/defendant who was to hand over the possession of the shop on 1.1.1989, would not do the same till such time the order of stay was in operation. The staying of the decree would not affect the agreed terms and conditions between the parties which as already stated culminated in resumption of suit shop. The moment the suit was dismissed and interim direction stood vacated, the position as it obtained on 1.1.1989 got revived.
14. In such circumstances, it cannot be said that the grant of an ex parte stay or grant of stay by the court after hearing the parties would revive the relation-ship of mortgager and mortgagee between the parties. The relationship of mortgagor and mortgagee got extinguished on 2.12.1983. The respondent was permitted to retain possession of shop upto 1-1-1989. The possession of respondent upto above date was permissive possession.
15. Staying of compromise decree affected only handing over of possession of shop and could not by any legal reasoning revive relationship of mortgagor and mortgagee between parties. The feudal relationship between parties can not created by interim court orders. Such relationships are created either by parties themselves, or by operation of a Statute.
16. As already stated, the relationship of mortgager and mortgagee was extinguished on 2.12.1983 itself, and by interim order of the court; such a relationship could not be revived in law.
17. The reasoning recorded in support of the impugned judgment by the learned Single Judge in this behalf is unacceptable and unsustainable in law.
18. In the compromise deed, it was agreed upon between the parties that the defendant shall pay compensation for use and occupation of the suit shop at such rate as may be fixed by the plaintiff until the possession of the shop was delivered to the plaintiff/appellant. Such an agreement between the parties in terms of the compromise deed had given authority to the plaintiff/appellant to seek compensation from the respondent for use and occupation of the suit shop until time that the possession of the shop was delivered to the plaintiff.
19. The plaintiff/appellant on the basis of this agreement between the parties had to institute suit for seeking compensation for use and occupation of the suit shop. In the trial of the suit, he was required to support his claim for determining amount of compensation by leading evidence, with right to the defendant/respondent to controvert the same by leading evidence from his side. The appellant/plaintiff was thus in law authorised to institute the suit seeking payment of compensation for use and occupation of the suit shop. The terms of compromise deed provided cause for institution of suits.
20. The learned trial Judge has appreciated the evidence of the parties in most just and fair manner and while disallowing compensation for one particular period has allowed compensation uniformly at the rate of Rs.6000/- for the period the shop remained in possession of the respondent. The continuance of the possession of the shop under the interim orders of the court would not affect the right of the plaintiff/appellant to seek compensation for use and occupation of the suit shop from 1.1.1989 till the possession was so actually handed over to him.
21. The judgment of the learned single Judge in view of aforesaid discussion cannot be sustained in law.
22. For the afore-stated reasons, these appeals are allowed. The impugned judgements are set-aside. In consequence, the decrees and judgment of the learned trial Judge is restored.
23. In view of the peculiar facts of these appeals while allowing these appeals, we direct the respondent to pay cost of Rs.50,000/- only in all the six appeals to the appellant.
(B S Walia) (Muzaffar Hussain Attar)
Judge Judge
Jammu.
25.08.2015.
Raj Kumar