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Murari Vs. Pehlad and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 603 of 1971
Judge
Reported inAIR1982P& H96
AppellantMurari
RespondentPehlad and ors.
Cases ReferredZora v. Chandu.
Excerpt:
.....on 6-8-1966 since the defendant failed to pay the mortgage amount within the time allotted. here the plaintiffs clearly mentioned in the plaint that the defendant was given a registered notice demanding the payment of mortgage money before the application was made......here the plaintiffs clearly mentioned in the plaint that the defendant was given a registered notice demanding the payment of mortgage money before the application was made. at the trial they produced shri hoshiar singh rathi, advocate, rohtak as p.w. 1 who deposed that before making the application on behalf of the plaintiffs in the court of district judge. rohtak, he had issued a notice of demand to the defendant by registered post and acknowledgement due receipt received back by him carrying the signature of the defendant was exhibit p. 2 present on the foreclosure file of the district judge. an office copy kept by him of the notice of demand, as he stated, had been filed with the foreclosure application and was placed on that judicial file, argument has now been built, as was.....
Judgment:

1. This defendant's second appeal against a judgment and decree of reversal has arisen in these circumstances :--

2. The plaintiff-respondents brought a suit for declaration that they had become the owners of the suit land. It was alleged by them that the land in suit was mortgaged by the defendant Murari (now represented by his legal heirs) in their favour on 15-5-1963 for Rs. 8500/-by conditional sale. The deed contained a stipulation that in case the defendant-mortgagor failed to redeem the land in dispute within six months i.e. by 15-11-1963, the land mortgaged shall be deemed to have been sold to the plaintiffs for the consideration already received by the defendant. It was alleged that the plaintiffs duly served a notice upon the defendant demanding repayment of the consideration, but the latter did not pay it up in the year of grace. Thereafter the plaintiffs claimed to have applied to the District Judge. Rohtak for issuance of notice to the defendant u/s. 8 of the Bengal Regulation No. XVII of 1806 (briefly called the Regulation). Statutory notice was also duly served upon the defendant. The application was filed by the learned District Judge, Rohtak, on 6-8-1966 since the defendant failed to pay the mortgage amount within the time allotted. The plaintiffs thus claimed that they had become the owners of the land in dispute and prayed for the declaration asked for.

3. The defendant, while admitting the transfer, resisted the suit. He denied receipt of any notice of demand as allegedly served by the plaintiffs. He also denied that any notice was served upon him which might have been issued by the District Judge. In the alternative it was pleaded that the notice, if any, issued by the District Judge was not served in the manner required by law inasmuch as no copy of the petition to foreclose or copy of the mortgage deed etc., had been delivered to the defendant as also that the conditions prescribed by Ss. 7 and 8 of the Regulation had not been observed or the proper procedure with regard thereto. He prayed for the dismissal of the suit.

4. On the pleadings of the parties, the following issues were framed:--

1. Whether mortgage mentioned in para 1 of the plaint has been validly foreclosed and the plaintiffs have become owners of the land in dispute?

1-A. Whether the plaintiffs issued a valid notice of demand on the defendant before the foreclosure proceedings and was the service of the defendant validly effect (sic) of the said notice ?

2. Relief.

5. The learned trial Court held both the issues against the plaintiffs and in the result dismissed the suit. On appeal, the learned Senior Sub-Judge, Rohtak exercising enhanced appellate powers reversed the finding on both the issues, set aside judgment and decree of the trial Court and decreed the suit leaving the parties to bear their own costs. Now the defendant has approached this Court praying for the dismissal of the suit.

6. Shri Balwant Singh Gupta, the learned counsel for the appellant, maintains that no valid notice of demand was served by plaintiffs upon the defendant before the foreclosure proceedings as also that no proper notice u/s. 8 of the Regulation was served upon the defendant by the learned District Judge. On the other hand Shri S. K. Goyal, the learned counsel for the respondents, repudiates the claim of the defendant and asserts that the lower appellate Court on proper material had come to the conclusion that the requisite notices had been served and those being findings of fact could not be interfered with in second appeal.

7. To appreciate the respective contentions of the parties, it would be appropriate to take a note of the requirements of Ss. 7 and 8 of the Regulation. It is essential for the mortgagee to first make a demand of the payment from the mortgagor. This is a pre-requisite before moving the District Judge u/s. 8 of the Regulation. Here the plaintiffs clearly mentioned in the plaint that the defendant was given a registered notice demanding the payment of mortgage money before the application was made. At the trial they produced Shri Hoshiar Singh Rathi, Advocate, Rohtak as P.W. 1 who deposed that before making the application on behalf of the plaintiffs in the Court of District Judge. Rohtak, he had issued a notice of demand to the defendant by registered post and acknowledgement due receipt received back by him carrying the signature of the defendant was Exhibit P. 2 present on the foreclosure file of the District Judge. An office copy kept by him of the notice of demand, as he stated, had been filed with the foreclosure application and was placed on that judicial file, Argument has now been built, as was done in the Courts below, that the copy of the notice was not available on that file and thus it could not be assumed as to what the notice allegedly sent by the plaintiffs purported to be. The lower appellate Court called for the file of District Judge, Rohtak (as has been done now by me) and took note therefrom that the list of documents signed by the counsel for the plaintiffs mentioned of copy of notice dt. 4-2-1966 sent by the plaintiffs to the defendant. Though on the file the postal receipt and original acknowledgement due receipt purported to have been signed by the defendant are present, yet the copy of the notice was found missing from the file. The lower appellate Court also inferred that some pages on the file were missing and it appeared that the original mortgage deed as also a copy of the mortgage deed were produced by the applicants in the Court of the District Judge. From this he inferred the existence of the copy of the notice, and hence on the statement of Shri Hoshier Singh Rathi P. W. 1, despatch of notice to the defendant was held a consequence, which could not be overlooked.

8. The learned counsel for the appellant contended that in the absence of the copy of the notice, it could not be assumed what were the contents thereof. The argument indeed is ingenious but loses much of its sheen in the light of the other material available on the record. Undeniably the acknowledgement due receipt bears the signatures of Murari defendant in Urdu. Corroborative with the postal receipt, it proved that some letter was sent by Shri Hoshiar Singh Rathi to the defendant under registered cover and it was received by him. The defendant did not bring forward the containing documents received within the registered cover to demolish the case of the plaintiffs. Thus the lower appellate Court rightly inferred from those documents aided by the statement of Shri Hoshiar Singh Rathi that he had served a valid demand notice on the defendant and to this no fault can be found. The validity of the demand notice was also challenged on the score that Shri Hoshiar Singh Rathi had stated that he received power of attorney from the plaintiffs on 21-2-1966, had made an application to the District Judge on 24-2-1966. and that he had not got signed the power of attorney from the plaintiffs earlier, From this it was sought to be urged that Shri Hoshiar Singh Rathi had not been authorised by the plaintiffs to serve the defendant the requisite demand notice on behalf of the plaintiffs. This argument is also misplaced as an Advocate has the implied authority to act on behalf of his client unless that authority by word, action or conduct is questioned by that party or repudiated by it. Here the plaintiffs have owned the notice served by Shri Hoshiar Singh Rathi to be their own. Thus in the circumstances execution of a power of attorney in favour of Shri Hoshiar Singh Rathi was not a pre-requisite for sending the demand notice to the defendant on behalf of the plaintiffs. The view of the lower appellate Court on that score in unassailable.

9. The next argument is built on the requirement of S. 8 of the Regulation. It is contended that the notice issued by the District Judge neither contained reference to S. 7 of the Regulation nor was a copy of S.7 or its translation sent therewith. Even the notice was alleged to be faulty as it did not contain the alternatives as required by law. The counsel for the appellant does not dispute that notice was received from the District Judge but asserts that the same was not a valid notice and to press his point he drew my attention to Exhibit P. 3, the copy of the notice. It is extracted below :--

'................ Petitioner has applied to this Court u/s. 8 of Regulation XVII of 1806 for foreclosure of the mortgage and rendering the sale conclusive as copy of his petition is herewith furnished to you, and you are hereby informed that unless within one year from the date of receipt of this notification you pay or tender to the said petitioner or to his representative the sum lent under the said sale deed viz. Rs. 8500/-or the balance of the sum remaining undischarged together with such interest as may be due thereon, or unless you pay the said sum into this account within the above period, the mortgage will be foreclosed and the conditional sale will become conclusive....................'

It was argued on the strength of Tara Chand v. Chiman (1911) 12 Ind. Cas. 530 (Lah) and Zora v. Chandu AIR 1923 Lah 71 (2), both decisions rendered by Chevic J., and on later decisions of Behari Lal v. Balmokand AIR 1926 Lah 112: Diwan Singh v. Jiram AIR 1926 Lah 215: Gobind Mal v. Ram Chand, AIR 1927 Lah 141. that all the alternatives provided for in S. 7 of the Regulation had to be mentioned in the notice u/s. 8. Those were that the mortgagor had to be told that he had the option to pay or tender the sum asked for to the mortgagee or his legal representative or in the third alternative to deposit the same within the time specified in the Court within whose jurisdiction the mortgaged property was situated. According to the learned counsel for the appellant. the choice of Court deposit was not made available to the defendant as per recital in Exhibit P. 3 and that defect alone would make the notice and the foreclosure proceedings void altogether.

10. In Dhum Chand v. Kishan Chand AIR 1934 Lah 436, a Division Bench of Lahore High Court while interpreting the provisions took note of some decisions afore-quoted and in particular of Chevis J. in Zora v. Chandu. AIR 1923 Lah 71 (2), but came to the conclusion in this manner :--

'In my view the requirements of the law were fully complied with by the reference to Section 7 in the notice. That such reference is all that is necessary has been frequently decided and the unnecessary addition of the incomplete description of the mode of redemption allowed by Section 7 cannot affect the validity of the notice. I can think of no principle of law which justifies any other view.'

11. Now here in the notice, mention of Section 7 has been made. Options of tender and payment have been enumerated. There is no dispute on that score. The dispute is with regard to 'or unless you pay the said sum into this account with in the above period' signifying that payment in Court was not suggested in the notice. From the summoned foreclosure file of the District Judge, I have noticed that the original from which copy, Exhibits P. 3, has been prepared is a printed form used by the Court in preparing the notice. This is the official copy kept on the record and the one sent to the defendant has not been produced by him. The official copy is not official stationery and the recital afore-noted is printed there. It contains the signatures of the District Judge. In the Rules and Orders of the Punjab High Court, Vol, VI, Part A-II, there is a form prescribed for notice u/s, 8 of Regulations XVII of 1806 pertaining to petition for foreclosure of mortgage of land. It bears printed form No. 189. Now here the recital afore-noted is a part of that form, but the word is Court instead of account as found in the printed form filled in as the official copy on the foreclosure file of the District Judge. So this is an obvious misprint. The notice sent by the District Judge on such form bearing this patent mistake would not be fatal to the proceedings especially when mention has been made of Section 7 of the Regulation in the notice. Dhum Chand's case (supra) would led support to this view. Even otherwise, there is no higher principle for the guidance of the Court than the one that no act of the Court should harm a litigant and it is the bounden duty of the Courts to see that if a person is harmed by a mistake of the Court, he should be restored to the position he would have occupied but for that mistake. This is amply summed up in the maxim 'actus curiae neminem gravabit.' The copy of the notice on the foreclosure file, prepared and signed by the District Judge, could not by itself have misled the defendant for it never reached him. The notice which he recovered has not been brought on the file to detect if there was any such mistake which misled the defendant. The plaintiffs could not be made a suffer for such a defect in the official copy of the notice found on the District Judge's file. No capital can be made out by the defendant for the printer's error overlooked by the District Judge. The view of the lower appellate Court on this score is unassailable. It is equally unassailable on the question whether the said copy of notice bore the initials or the signatures of the presiding Officer since it has come to the view that these were his official signatures and not mere initials. That is a finding of fact incapable of being interfered with in second appeal.

12. For the foregoing reasons, there is no merit in the appeal which is hereby dismissed. There would, however, be no order as to costs.

13. Appeal dismissed.


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