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2010 DIGILAW 480 (PNJ)

Deen Mohammad v. Abdul Rehman

2010-01-20

VINOD K.SHARMA

body2010
Judgment Vinod.K.Sharma, J. 1. The plaintiff/appellants by way of this appeal have challenged the impugned part of the judgment and decree dated 4.5.1984, passed by the learned courts below, vide which while declaring the order passed by the Collector under section 6 of the Redemption of Mortgages (Punjab) Act, 1913 (for short the Act) had ordered revival of the proceedings before the learned Collector. 2. The plaintiff/appellants instituted a suit for declaration claiming that the order dated 31.7.1980 passed by the Collector, palwal on the redemption application with respect to the suit land was null and void, illegal and without jurisdiction and not binding on the plaintiffs. As a consequential relief, permanent injunction was prayed for, restraining the respondents from taking possession of the suit land on the basis of the order passed by the learned Collector. 3. The defendant/respondents filed redemption application under the act seeking redemption of the agricultural land measuring 94 kanals 19 marlas, in the court of leanred Collector, Palwal. Ex parte redemption order was passed against the plaintiff/appellants on the basis of false report of the Process server. 4. Order passed was challenged on the ground that it was without jurisdiction, and in violation of principles of natural justice as notice of the proceedings was not served, and also that some of the plaintiffs were minor and were not properly represented in the proceedings. Plea was also raised that mortgage was not redeemable. 5. The suit was contested by raising preliminary objections regarding locus standi, maintainability and also that the civil court had no jurisdiction to try the suit. 6. On merits the averments made in the suit were denied. On the pleadings of the parties learned trial court framed the following issues:- 1. Whether the redemption order is void, illegal and without jurisdiction on the grounds alleged? OPP 2. Whether the plaintiffs have no locus standi to file the present suit? OPD 3. Whether the suit is not maintainable, as alleged by way of preliminary objection No.2? OPD 4. Whether the civil court has no jurisdiction to try this suit? opd 5. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD 6. Relief. 7. OPD 3. Whether the suit is not maintainable, as alleged by way of preliminary objection No.2? OPD 4. Whether the civil court has no jurisdiction to try this suit? opd 5. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD 6. Relief. 7. On appreciation of evidence and keeping in view the fact that some of the plaintiffs were minor, learned trial court decided issue No.1 in favour of the plaintiff-appellants, holding that the redemption order was void, illegal and without jurisdiction. The learned trial court, therefore, came to the conclusion that the order was a nullity. Issues No.2 to 5 were not pressed. Consequently the suit was decreed. 8. However, learned trial court directed, that the redemption proceedings be revived, after assuring proper representation of the minors in the proceedings. 9. Plaintiff/appellants preferred an appeal. Learned lower appellate court also agreed with the learned trial court and dismissed the appeal, by holding that the plaintiff/appellants should have proceeded under proviso to section 12, than filing the civil suit. The learned appellate court, therefore, did not interfere with the judgment and decree. Sec.12 of the Redemption of Mortgages (Punjab) Act, 1913 reads as under:- "12. Saving of suits to establish rights-- Any party aggrieved by an order made under sections 6,7, 8, 9, 10 or 11 of this Act may institute a suit to establish his rights in respect of the mortgage, but subject to the result of such suit, if any, the order shall be conclusive. Setting aside ex parte orders or orders of dismissal.--Notwithstanding anything in this section a mortgagee against whom an ex-parte order under section 7 has been made or a petitioner, whose petition has been dismissed in default under section 6 may apply to the Collector to have such order or dismissal set aside, and the Collector may in his discretion set aside, such order or dismissal on such terms as to costs or otherwise as he may deem fit; provided that the order or dismissal shall not be set aside unless notice of the application has been served on the opposite party. " 10. Mr. C. B. GOEL, learned counsel for the appellants contends that the appeal raises, following substantial questions of law, for consideration by this court:- 1. " 10. Mr. C. B. GOEL, learned counsel for the appellants contends that the appeal raises, following substantial questions of law, for consideration by this court:- 1. Whether the civil court committed error by ordering revival of the proceedings after declaring the order passed by the learned Collector under the Act to be nullity? 2. Whether the judgment of the learned lower appellate court on the face of it is perverse, in holding that the remedy with the appellants was to seek setting aside of ex parte order, under proviso to Sec.12 of the Act than to file the suit in the civil court? 11. In support of the substantial questions of law learned counsel for the appellants, contended that the order of redemption was passed by the learned Collector under Sec.6 of the Act, which could be challenged by filing a suit in view of Sec.12 of the Act. Therefore, the learned lower appellate court was not correct in holding that, the remedy with the appellants was to proceed under proviso to Sec.12 of the Act. The contention of the learned counsel was that the final order passed under section 6 of the Act could be challenged by the plaintiffs by invoking the jurisdiction of the civil court. The alternative remedy could not be a ground for revival, of the proceedings before the Collector. Once the order was held to be nullity, the civil court was only to pass declaratory decree with consequential relief. It was for the defendants to have chosen their remedy in view of the setting aside of the order. Learned counsel for the appellants, also contended that the civil court, while adjudicating on the order passed under section 6 of the Act, was only to see the legality and proprietary of the order, which could either upheld it or set aside. The civil court could not revive the proceedings, which had already been finalized by the Collector, as there is no such power vested with the learned Civil Court. 12. Learned counsel for the appellants also contends that the judgment of the Honble Delhi High Court relied upon by the learned courts in the case of Edwin Stephen and another Vs. The civil court could not revive the proceedings, which had already been finalized by the Collector, as there is no such power vested with the learned Civil Court. 12. Learned counsel for the appellants also contends that the judgment of the Honble Delhi High Court relied upon by the learned courts in the case of Edwin Stephen and another Vs. Sada Nand and Ors, 1981 (1) Revenue law Reporter 281 was not applicable to the facts of the case, as Honble High court of Delhi was exercising appellate power against the order passed by the subordinate Tribunal/court and it was within the jurisdiction of the Honble high Court in exercise of appellate jurisdiction to set aside the proceedings from the date it was held to be nullity or without jurisdiction. The learned civil Court does not act as an appellate court, over the order passed by the learned Collector under section 6 of the Act, and can only see the legality and proprietary of that order, and pass appropriate order, upholding order or setting it aside. The learned civil court could not exercise the jurisdiction of appellate court. The substantial questions of law are answered in favour of the appellants. 13. Consequently, this appeal is allowed. The impugned part of the judgment and decree directing the revival of the proceedings before the collector is set aside and suit filed by the plaintiff/appellant is decreed as prayed for. However, defendant/respondents shall be at liberty to take appropriate proceedings, in accordance with law, if so advised. No costs.