Shri Rehmat Ullah (Deceased) Thru ... vs Mst. Hassan Bano & Ors.
2010 Latest Caselaw 1378 Del

                   * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                    Date of Reserve: 1st February, 2010
                                                       Date of Order: 12th March, 2010

CM (M) No. 593/2008 & CM No. 7111/2008
%                                                                          12.3.2010

        Shri Rehmat Ullah (Deceased)
        Thru LRs                                              ... Petitioner
                            Through: Mr. T.N.Saxena & Mr. V.K.Singh, Advocates

                Versus


        Mst. Hassan Bano & Ors.                         ... Respondents
                           Through: Mr. V.B.Andley, Sr. Advocate with
                           Mr. Rajinder Mathur, Advocate

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?   Yes.

2. To be referred to the reporter or not?                                  Yes.

3. Whether judgment should be reported in Digest?                          Yes.

JUDGMENT

By this petition under Article 227 of the Constitution of India, the

petitioner has assailed an order dated 11th December, 2007 passed by the

learned ADJ dismissing appeal of the petitioner against order of learned Civil

Judge, dismissing an application made by the petitioner for passing a final

decree.

2. Brief facts relevant for the purpose of deciding this petition are

that the petitioner was mortgagor of property bearing municipal no. 757, 758,

759, 760, 762 & 763 Ward IX, Kabari Bazar, Jama Masjid, Delhi. The

petitioner had mortgaged this property to the defendants/respondents for sum

of Rs.12,000/- sometime in 1972. The petitioner thereafter filed a suit for

redemption of mortgage on the ground that the petitioner had paid the

mortgage amount. In the suit filed by the petitioner, Commercial Civil Judge

passed a preliminary decree on 21st August, 1982 in favour of the petitioner

and allowed closure of mortgage. However, he gave directions that the

accounts be taken as to what were the dues to the defendant on the date of

the decree for:

1. Principal and interest on the mortgage @ 7 ½ p.a.

2. Cost of the suit

3. Other costs and charges probably incurred by defendant up to the date in respect of mortgage security together with interest thereon

4. An account of any loss or damage caused to the mortgaged property by any act of omission or commission of the defendants destructive or permanently injurious to the property

3. After passing such an order and giving directions for adjustment

of the amount due against the plaintiff to the amount due against the

defendant, the learned Civil Judge appointed Shri Jaspal Singh advocate as

Local Commissioner and he was to do the accounting within six months from

the date of passing of the judgment. His fee was fixed as Rs.1000/- to be

paid by the plaintiff. The plaintiff did not pay the fee of the Local

Commissioner and no accounting was done. After 13 years of passing of this

preliminary decree, plaintiff filed application for passing of final decree on the

ground that all the tenants in the property had already become direct tenant

with him and they were paying rent to him and the plaintiff was already in

possession of the property mortgaged to the defendant. It was also

contended that while passing of preliminary decree, the Court had already

held that entire consideration of the mortgage amount had been paid by the

mortgagor/plaintiff to the defendant no. 1 & 2 and the original documents of

title were on the Court file. He submitted that no steps were taken to get

accounting done through Shri Jaspal Singh, Advocate as defendants no. 3-8

had become direct tenants under the plaintiff and no further accounting was

required to be done.

4. The defendant took objection that since the application had

been filed after 13 years of passing of preliminary decree and Local

Commissioner was not paid fee and thus no accounting done, the final decree

should not be passed and the application should be dismissed. The learned

Civil Judge after noting the requirements of Order 34 CPC observed that the

Court had to follow the procedure as prescribed under Order 34 CPC and the

final decree could be passed only after taking of accounts of sums due to the

defendant by the date of decree and thereafter only, the Court could direct the

defendant to deliver onto the plaintiff the documents in his possession or

power relating to mortgage. The trial Court observed that since plaintiff failed

to comply with the Order of the Court relating to rendition of accounts and had

rather sought final decree after 13 years beyond the period of 12 years, the

application was dismissed. The learned Appellate Court after noting the

order passed by the trial Court upheld the order of the trial Court giving the

same reasoning.

5. It was not controverted before the Civil Court or the Appellate

Court that the property which was mortgaged by the plaintiff was already in

possession of the plaintiff and all the tenants had become direct tenants under

him. Neither it was controverted before the Civil Judge or before the

Appellate Court that the Commercial Sub Judge in his order dated 21st

August, 1982 had already held that the mortgage amount had already been

paid thus the only accounting to be done between the plaintiff and defendant

was in respect of rent received by the defendant and about the cost of the

suit. As per Order 34 CPC, if the plaintiff, who applies for redemption of

mortgage succeeds, he is entitled for costs of the suit. Thus, the costs of the

suit were payable by the defendant to the plaintiff. The accounting was also

to be done in respect of the rent. It was also not disputed that all the tenants

had already become direct tenants under the plaintiff after the preliminary

decree passed by the Court. Accounting is not a ritual prescribed under Code

of Civil Procedure, which is to be performed by the parties before passing of a

decree and there is no law that if this ritual is not performed final decree

cannot be passed. The purpose of accounting is to settle the accounts

between the parties in respect of the mortgaged property and in case some

money is recoverable by the plaintiff or by the defendant, the same should be

paid. Once the Court has held that the mortgage amount along with interest

had been paid and it was a fact that the defendant/mortgagee was receiving

rent from the tenants prior to filing of the suit, the only accounting which was

to be done was in respect of the rent, damage to the property and the costs of

the suit. It is not the case of the defendant that anything was payable by the

plaintiff to defendant, neither this was pleaded either before the Civil Court or

the before the Appellate Court. Even the fact that the documents of title of the

property were lying with the Court were not disputed. Since the title deeds

were not with the defendant, under these circumstances, I consider that the

Civil Court as well as the Appellate court failed to exercise their jurisdiction in

respect of redemption of mortgage. In case of mortgage no limitation applies.

A mortgager can be debarred from right to redeem the property when the

mortgagee applies for a final decree debarring the mortgager from his right to

redeem on account of not paying the due amount within the prescribed period

as directed by the Court. If no due amount is to be paid and no application

has been made by the mortgagee for passing a final decree in his favour

closing the right to redeem, the mortgager is at liberty to move an application

for passing a final decree in his favour by making a statement that he does

not want to recover any money from the defendant and he forgoes his claim

against the defendant.

6. It was not necessary for the petitioner to pay fee of the Local

Commissioner and get accounting done through the Local Commissioner

unless the petitioner was keen to receive dues from the defendant. Since the

rent in this case was very meager and fee of the Local Commissioner as fixed

being Rs.1,000/-, looked more than what the plaintiff could have recovered,

the plaintiff was justified in not paying fee of the Local Commissioner and not

getting the accounts done. It had not been the case of the defendant that

defendant had to recover any amount from the plaintiff. It is not even the case

of the defendant that tenants had not started paying rent to petitioner after

passing of the preliminary decree and they had not become tenant under the

plaintiff. Under these circumstances I consider that the plaintiff was entitled

for a final decree from the Court below.

7. In Mhadagonda Ramgonda Patil & Ors. v. Shripal Balwant

Rainade and Ors. AIR 1988 SC 1200 Supreme Court observed that a

mortgager has a right to file even second suit if he failed to make payment

within the specified period under the preliminary decree and his right to

redeem has not been closed. I, therefore consider that since a mortgager

could file even a second suit for redemption of mortgage, if he had failed to

pay money in accordance with earlier preliminary decree, there is no reason

that the Civil Court or the ADJ could deny the right to the petitioner of

obtaining a final decree, since it was not the defendant who was to receive

money from the plaintiff (petitioner herein) but it was plaintiff who was to

receive money from the defendant after accounting and the plaintiff was

prepared to forego this money.

8. The petition is therefore allowed. The order dated 3rd January,

2000 of learned Civil Court and order dated 11th December, 2007 of the

Appellate Court are set aside. The Civil Court is directed to pass an

appropriate order regarding final decree in the light of this judgment.

Parties to appear before the trial Court on 15th April, 2010.

March 12, 2010                             SHIV NARAYAN DHINGRA, J.
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