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Joginder Singh Harnam Singh Vs. Hardial Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 641 of 1965
Judge
Reported inAIR1967P& H385
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115
AppellantJoginder Singh Harnam Singh
RespondentHardial Singh and ors.
Appellant Advocate B.R. Aggarwal, Adv.
Respondent Advocate B.S. Jawanda, Adv.
DispositionPetition allowed
Cases ReferredEwaz Ali v. Mt. Firdous Jehan
Excerpt:
- - the learned district judge pointed out that to entitle the plaintiff to a temporary injunction, the court should be satisfied that there is a serious question to be tried on the hearing, and that on the facts before it, there is a probability that the plaintiff is entitled to relief. 1,500/-,in which it was stated that the mortgagor would pay the amount of this bond as well on redeeming the land in suit the lower appellate court posed the question for determining whether or not this condition in the bond, which was not a registered document, created a valid charge on the land. the grievance cannot be brushed aside with a shrug of the shoulder and the plaintiff-petitioner can legitimately complain that the discretion has not been judiciously exercised by the learned district judge...........2,900, but this plea was not accepted.an application was made in the court of first instance for a temporary injunction and that court took the view that in case it was proved that the land had been mortgaged for rs. 2,900/-. then it would lead to further litigation regarding mesne profits and the purpose of the suit would also be lost in case the defendants were directed to take possession of the suit land. in his discretion, the learned subordinate judge made an order restraining the defendants from taking possession of the suit land from the plaintiff till the disposal of the case.2. the defendant-vendees feeling dissatisfied took the matter to the learned district judge, shri pritam singh pattar, who apparently felt that the discretion had not been exercised by the court of first.....
Judgment:
ORDER

I.D. Dua, J.

1. The facts giving rise to the present revision, as disclosed in the orders of the Courts below, may briefly be stated. Land measuring 21 kanals and 6 marlas belonging to Lal Singh respondent was mortgaged in favour of Joginder Singh petitioner, son of Harnam Singh, in this Court for a sum of Rs. 1,400/- and the necessary mutation was duly sanctioned on 10-8-1957. On 16-12-1957, mortgagor Lal Singh executed a bond in favour of the mortgagee for Rs. 1,500, in which it was mentioned that he would pay the amount of this bond and redeem the land in suit.

Lal Singh later sold the land to Hardial Singh and Joginder Singh, sons of Sher Singh, who applied to the Revenue authorities for redemption of the land. The Revenue Officer made an order for redemption on payment of Rs. 1,400/-. In pursuance of this order, the vendees wanted to take possession of the land after depositing the amount determined in the order. Joginder Singh instituted the suit out of which the present revision arises for permanent injunction restraining the vendees from taking possession of the land on the allegation that the mortgage amount was Rs. 2,900/- and not Rs. 1,400/-. In the alternative prayer for recovery of the remaining amount of Rs. 1,500/-was also made. From the order of the trial Court, it appears that before the Revenue Officer also, it was asserted by the mortgagee that the land had been mortgaged for Rs. 2,900, but this plea was not accepted.

An application was made in the Court of first instance for a temporary injunction and that Court took the view that in case it was proved that the land had been mortgaged for Rs. 2,900/-. then it would lead to further litigation regarding mesne profits and the purpose of the suit would also be lost in case the defendants were directed to take possession of the suit land. In his discretion, the learned Subordinate Judge made an order restraining the defendants from taking possession of the suit land from the plaintiff till the disposal of the case.

2. The defendant-vendees feeling dissatisfied took the matter to the learned District Judge, Shri Pritam Singh Pattar, who apparently felt that the discretion had not been exercised by the Court of first instance in a judicial manner. The learned District Judge pointed out that to entitle the plaintiff to a temporary injunction, the Court should be satisfied that there is a serious question to be tried on the hearing, and that on the facts before it, there is a probability that the plaintiff is entitled to relief. In other words, as he himself puts it, it is to be seen that the plaintiff has got a prima facie case that the balance of convenience is in his favour and that he would incur an irreparable loss.

In the case in hand, the mortgage amount was Rs. 1,400/- and an order had been made by the Revenue Court for redemption of the land on payment of that amount. After noticing the allegation of the execution of bond for Rs. 1,500/-, in which it was stated that the mortgagor would pay the amount of this bond as well on redeeming the land in suit the lower Appellate Court posed the question for determining whether or not this condition in the bond, which was not a registered document, created a valid charge on the land. After noticing the relevant contentions, the Court proceeded to form an opinion that prima facie the appellants were entitled to get possession of the land, but at the same time observing that he would not be taken to have expressed an opinion on the merits of the case, the order of me trial Court granting a temporary injunction was quashed and set aside.

3. On revision before me, it has been very strongly argued on behalf of the mortgagee that the learned District Judge has completely ignored the consequence of his order. Although he has intended to leave the decision on me merits of the controversy open to the Court of first instance, by quashing the order of temporary injunction, he has virtually created or given rise to a situation in which the defendants would be armed with a further weapon to defeat the plaintiff's claim on the merits. The grievance cannot be brushed aside with a shrug of the shoulder and the plaintiff-petitioner can legitimately complain that the discretion has not been judiciously exercised by the learned District Judge.

The plaintiff's case, as has been sought to be put by his counsel in this Court, is, that even though the transaction of a loan of Rs. 1,500/- has been evidenced by an unregistered bond, nevertheless under Section 53A, Transfer of Property Act, and the principle underlying this section, the debtor cannot redeem this property without paying the amount loaned to him under the said bond which creates a further charge. The contention advanced is that the mortgagee continued in possession of the mortgaged property in part performance of the subsequent agreement as well, and he has also done some act in furtherance of such subsequent contract.

Of course, it is also asserted that the plaintiff-petitioner has performed and is also willing to perform his part of the contract. On the facts and circumstances of the present case, the petitioner has argued with a certain amount of justification that weighing the consequences of either course, namely, of allowing or disallowing temporary ad interim injunction, the dictates of justice must to a reasonable judicial mind lead to an order in favour of the plaintiff and not against him. To decline an ad interim injunction would arm the defendants with an additional argument, whereas acceding to the plaintiff's prayer would merely mean an injury which can be remedied by putting the plaintiff on terms.

4. The respondent's learned counsel has tried to meet the plaintiff-petitioner's case on a two-fold ground. To begin with, he has urged that Section 53A, Transfer of Property Act, or the principle embodied therein, does not apply to the ease of the plaintiff. In the second place, he has, in his usual quiet manner, urged that the discretion exercised by the lower Appellate Court should not lightly be disturbed by this Court on revision. I need hardly point out that this argument has evoked a spontaneous counter-remark that the learned District Judge was in error in interfering with the discretion exercised by the trial Court.

5. I may here point out that when it is said that a certain matter is in the discretion of the Court, what is really meant is that the Court has to apply the rule of reason and justice and not to act according to private or personal opinion; it is the law and not humour which guides the Court and the possessor of discretion must put his mind to the case and really use judgment in coming to a decision: he must not approach the matter with his mind as if already made up. Exercise of discretion, it should never be forgotten, is legal and regular, not arbitrary, fanciful or vague.

In order to command respect, discretion should be informed by traditions, methodised by analogy and disciplined by system. It is, of course, exercised largely on the facts and circumstances of a given case, with the result that ordinarily it is neither possible nor feasible to formulate a rigid formula capable, like a straight jacket, of fitting all circumstances. The Court of first instance in the present case seems to me to have thought on the right track when it decided to grant the plaintiff the temporary injunction sought.

6. It is true that the statutory right of appeal which concerns as does not draw any distinction between discretionary and other orders, nevertheless, it is almost common place that the Court of appeal does not lightly interfere with the exercise of discretion by the Courts below. To borrow with gratitude the words of Subba Rao, J., who spoke for the Court in S. M. Banerji v. Sri Krishna Agarwal, AIR I960 SC 368 at p. 377:--

'An appellate Court has no doubt an unquestioned right to review or modify the order made by a subordinate Court; but it is undesirable to do so when the subordinate Court made an order in the exercise of its discretion without exceeding the limits of its power, unless ft acted perversely or unless the view taken by ft is dearly wrong.'

The first Court, as observed earlier, in the present case acted quite in accord with the well-recognised rules but the lower Appellate Court took a somewhat superficial view of the whole matter and basing itself on incomplete principles, erroneously reversed the trial Court, This, in my opinion, is clearly tainted with a material irregularity in the exercise of its jurisdiction demanding interference by this Court.

7. In so far as the contention raised by the respondents that the plaintiff cannot claim the advantage of the principle underlying the statutory provision of Section 53A, Transfer of Property Act is concerned, a Bench of five Judges of the Lahore High Court in Milkha Singh v. Mst. Shankari, AIR 1947 Lah 1 (FB, has taken the view that though this section does not in terms apply to the Punjab, the principles embodied therein do apply. The petitioner's learned counsel has also made a reference to a Bench decision of the Oudh High Court in Ewaz Ali v. Mt. Firdous Jehan, AIR 1944 Oadh 212, particular reliance having been placed en some passages at p. 218. I would, however, not like to express any opinion on the merits of the controversy and would merely confine myself to the question of holding that in this case the position of the parties should not be prejudiced by refusal by the Court to grant an ad interim temporary injunction to the plaintiff.

8. The respondents' learned counsel has also tried to raise a point that Section 53A, Transfer of Property Act, is inapplicable to bona fide transferees for consideration without notice and also that the plaintiff has to show that this possession was under or in pursuance of the unregistered contract in enforcement of which he asserts his right. In support of this submission he has drawn my attention to some decisions of this Court, but I would again refrain from expressing any opinion on the merits, because these questions will have to be gone into by the Court at the trial.

9. For the foregoing reasons, I allow this revision and set aside the order of the learned District Judge and restoring that of the trial Court would add that the plaintiff should be granted ad interim temporary injunction as prayed on the condition that security for mesne profits is furnished to the satisfaction of the trial Court after notice to the opposite party. Besides, the suit should also be disposed of, if possible, within a period of four months. There would be no order as to costs in this Court.


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