Research › Search › Judgment

Himachal Pradesh High Court · body

2012 DIGILAW 303 (HP)

Parkash Chand v. Sub Divisional Collector Una

2012-05-23

DHARAM CHAND CHAUDHARY, KURIAN JOSEPH

body2012
JUDGMENT : Dharam Chand Chaudhary, J. The challenge herein is to the order dated 16.3.2012, Annexure PG, passed by the 1st respondent in an application under Section 4 of the Redemption of Mortgages (Himachal Pradesh) Act, 1971 (hereinafter referred to as the Act in short), registered as Case No. 6/Redemption/2011, whereby the said application has been allowed and the entries showing the name of Shri Parkash Chand (petitioner herein and respondent No. 1 in the application) in the column of ownership and possession being mortgagee, has been ordered to be deleted with further observations that he is entitled to receive the mortgage money to the extent of the share of Shri Rattan Chand (applicant in that application and 2nd respondent herein) and respondents 3 to 6 already deposited by them. 2. The petitioner is the real brother of 2nd respondent. Respondents 3 to 6 are the legal heirs of their deceased brother Sarwan Kumar. Their father late Shri Chintu had mortgaged the land, the subject matter of dispute in the present writ petition, vide mortgage deed No. 571, dated 24.6.1971 with Munshi Ram etc. The same seems to have been got redeemed by one Smt. Sheela Devi, wife of the 2nd respondent. Subsequently, petitioner got redeemed his own share in the land from said Smt. Sheela Devi and also purchased the mortgagee rights of the remaining co owners. The co-sharer namely Smt. Shakuntla Devi, Roshni Devi, Maina Devi and Smt. Santosh Devi, however, relinquished their shares in favour of the petitioner. 3. Subsequently, the 2nd respondent, being one of the co owners, moved an application under Section 4 of the Act before the 1st respondent, registered as Case No. 4/2001/Redemption, with the prayer to redeem the land in his share on payment of proportionate amount, he had already deposited. The said application, however, was dismissed on technical ground, however, with liberty reserved to the 2nd respondent to file a fresh application. 4. Consequently, second application Annexure PD came to be filed on behalf of the 2nd respondent before the 1st respondent. The petitioner, being 1st respondent therein, on entering appearance had contested the application by filing reply Annexure PE thereto. The 1st respondent, after affording opportunity of being heard to the parties in the application, had allowed the same vide impugned order dated 16.3.2012, Annexure PG. 5. The petitioner, being 1st respondent therein, on entering appearance had contested the application by filing reply Annexure PE thereto. The 1st respondent, after affording opportunity of being heard to the parties in the application, had allowed the same vide impugned order dated 16.3.2012, Annexure PG. 5. It is the legality and validity of this order which has been assailed before this Court on the grounds inter alia that in view of there being an express bar under Section 13 of the Act to file second petition, the application, Annexure PD should not have been entertained by the 2nd respondent. Also that in terms of the procedure prescribed under Sections 9 and 10 of the Act, the present being a contentious case, the application should have been decided, after taking on record the evidence of the parties. Thus, in a nutshell, it has been claimed that the impugned order is not only illegal and arbitrary, but without any jurisdiction also. 6. The order passed in this writ petition on the previous date, reads as follows : "..CWP No. 3327 of 2012 & CMP No. 4883 of 2012 The petitioner will make available the documents pertaining to original mortgage and order, if any, passed by the 1st respondent on an earlier occasion, according to the petitioner, when the petition had already been dismissed. Post on 23rd May, 2012. In case execution proceedings have been initiated, the same shall be deferred till 23.5.2012" 7. Consequently, the petitioner has placed on record copy of order dated 27.7.2010 passed in the earlier application under Section 4 of the Act which was filed by the 2nd respondent before the 1st respondent and also the copy of the mortgage deed, bearing No. 571, dated 24.6.1971. 8. On going through the pleadings available at this stage and the provisions contained under the Act, this Court is of the considered view that this writ petition is not maintainable, nor the petitioner is entitled to assail the legality and validity of the impugned order by invoking the writ jurisdiction of this Court. 9. We deem it proper to make a reference to the provisions contained in Section 12 of the Act, which read as under : "12. 9. We deem it proper to make a reference to the provisions contained in Section 12 of the Act, which read as under : "12. Saving of suits to establish rights and setting aside ex parte orders or orders of dismissal.- 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. 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. It is seen that a party aggrieved by an order passed by the Collector, under Sections 6, 7, 8, 9, 10 or 11 of the Act is at liberty to institute a suit to establish his rights in respect of the mortgaged property. As noticed supra, the petitioner has assailed the impugned order Annexure PG mainly on the ground that the same should have been passed after taking on record the evidence of the parties, as contemplated under Sections 9 and 10 of the Act. Therefore, the petitioner is at liberty to raise all such contentions in the civil suit before the appropriate forum having jurisdiction over the matter. 11. In view of the above, this writ petition being not maintainable is hereby dismissed, with liberty reserved to the petitioner to approach the Civil Court having jurisdiction over the matter for redressal of his grievances against the impugned order Annexure PG by way of filing civil suit. 12. With the above observations, this writ petition stands finally disposed of, so also the pending application(s).