| SooperKanoon Citation | sooperkanoon.com/973567 |
| Court | Rajasthan Jodhpur High Court |
| Decided On | May-30-2012 |
| Appellant | Jabber Lal and ors |
| Respondent | Lrs.of Ram Narayan and ors |
30. h May 2012 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI REPORTABLE Mr. R.K. Thanvi, Sr. Advocate with Mr. Narendra Thanvi, for the appellants-defendants. Mr. R.R. Nagori, Sr. Advocate with Mr. Alkesh Agarwal, for the respondents-plaintiffs. -- 1. The defendants, Jabber Lal S/o Ramchandra Sunar, Smt. Mumi @ Magi W/o late Sh. Umraochand Sonar, Huchi @ Laxmi W/o late Sh. Nemichand Sonar and Kamla W/o Sh. Shenaram have preferred this second appeal against the plaintiffs-respondents Balu Ram S/o Ram Narayan (not Ramchandra s/O Gokul Das, who is defendant) and legal heirs of Smt. Rupi Bai W/o late Sh. Ram Jeevan and others being aggrieved by the judgment and decree passed by lower appellate court dated 29.09.2006 allowing plaintiffs' appeal No.96/1993-LR's of Ramnarayan Vs. Jabberlal & Ors., against the judgment and decree dated 18.05.1989 of learned trial court in Civil Suit No.318/1968-Ramnarayan Vs. Amarchand & S.B. Civil Second Appeal No.212/2007 Jabber Lal & Ors. Vs. LR's of Ram Narayan & Ors. Judgment dtd. 30/05/2012 2/11 Ors., by which the learned trial court dismissed the suit for redemption of mortgage as barred by limitation.
2. Learned counsel for the appellants-defendants, Mr. R.K. Thanvi, Sr. Advocate urged that the suit was rightly dismissed by the learned trial court on 18.05.1989 and the appellate court has erred in allowing plaintiffs' first appeal by the impugned judgment and decree dated 29.06.2006 and decreeing the suit for redemption of mortgage. His contentions, as summarized are: (I) That the limitation did not get extend for filing the suit for redemption, as there was no acknowledgment in writing by the defendants of any mortgage in favour of plaintiff (Mortgagor) and, therefore, the learned trial court rightly rejected the suit as barred by limitation. (II) That the plaintiffs failed to prove the certified copy of the mortgage-deed produced before the learned trial court as a secondary evidence under Section 65 of the Act under order of trial court dated 28.11.1983 and no presumption of its correctness could be drawn by the learned appellate court under Section 90 of the Evidence Act, since the certified copy of the mortgage-deed was produced as secondary evidence under the orders of the learned trial court under Section 65 of the Act; and in absence of the original mortgage-deed, no presumption of its correctness or its execution could be drawn by the learned appellate court. S.B. Civil Second Appeal No.212/2007 Jabber Lal & Ors. Vs. LR's of Ram Narayan & Ors. Judgment dtd. 30/05/2012 3/11 (III) That in view of the necessary parties viz. Legal representatives of Ramchandra, Smt. Kamla, Laxmi and Munnalal, husband of Suraj D/o Ram Chandra, having not been impleaded in the suit at the time of filing of the suit on 01.07.1968, the later impleadment of all the necessary and proper parties in the suit on 24.01.1976, could not cure the defect in the suit and despite Order 1 Rule 9 CPC, the suit was liable to be dismissed because in 1976 suit had became time barred as per Article 61 of the Limitation Act.
3. He relied upon following judgments in support of his contentions and urged that substantial questions of law as suggested in the memo of appeal are arise in the present case. (i) Ramprasad Dagduram Vs. Vijaykumar Motilal Hirakhanwala & Ors. reported in AIR 196.SC 27.regarding Right of mortgagor to redeem the property. (ii)P. Govindra Reddy & Ors. Vs. Golla Obulamma, reported in AIR 197.AP 36.regarding joining of necessary parties in the suit for redemption. (iii)Dhirndra Singh & Ors. Vs. Dhanai & Ors., reported in AIR 198.Allahabad 216 regardng presumption under Section 90 applies to original document and not their copies.
4. On the other hand, Mr. R.R. Nagori, Sr. Advocate learned counsel appearing on behalf of plaintiffs-respondents S.B. Civil Second Appeal No.212/2007 Jabber Lal & Ors. Vs. LR's of Ram Narayan & Ors. Judgment dtd. 30/05/2012 4/11 submitted that mortgage of the suit property, which is a shop, was usufructory mortgage under the registered mortgage-deed dated 18.07.1935 for the sum of Rs.851/-, which was given in mortgage to one Ram Chandra by Heera Das, Chela of Damodar Das, by caste Ramanandi Sadhu, Resident of Pali and upon death of said Heera Das, the profroma defendant, namely, Uda Ram was elected as his legal heir, who transferred the rights of redemption in favour of present plaintiff on 12.01.1968 and thus the present plaintiff, Ram Narayan, who is now represented by his legal representatives, Balu Ram (son) and Smt. Rupi Bai (daughter), filed the present suit for redemption since the defendants failed to receive the redemption amount of Rs.951/- and failed to handover the original mortgage- deed and possession of the suit shop in question.
5. He further urged that in view of acknowledgment on the part of the advocate of the defendants in the notice served by him upon the tenant in the suit premises about the factum of mortgage, and in view of Explanation to Section 18 of Limitation Act, particularly, Explanation (b), the word 'signed' would mean signed either personally or by an agent duly authorized in this behalf and, therefore, the acknowledgment made by the Advocate in such notice (Exhibit-3) dated 09.05.1962, it would amount to extension of limitation upon acknowledgment and the suit being within limitation, was wrongly dismissed by the learned trial court; and, therefore, the suit was rightly decreed by the learned lower appellate court on this S.B. Civil Second Appeal No.212/2007 Jabber Lal & Ors. Vs. LR's of Ram Narayan & Ors. Judgment dtd. 30/05/2012 5/11 issue.
6. As far as question of law proving the original mortgage- deed is concerned, Mr. R.R. Nagori, relied upon a judgment of this Court in the case of Mohan Lal & Anr. Vs. Jagdish & Anr. reported in 1993 (1) RLW 110.in which relying upon Supreme Court decision in the case of Ishwar Dass Jain Vs. Sohan Lal, reported in (2000) 1 SCC 434.the learned appellate court held that once the permission to produce certified copy of the mortgage-deed was granted by the learned trial court under Section 65 of the Act since the defendants failed to produce the same despite the orders of the court under Section 66 of the Act; and therefore, the learned trial court as well as appellate court were justified in drawing the presumption of correctness and execution of the mortgage-deed, which was a document more than 30 years old and the certified copy of the same as produced, was not required to be further proved. Therefore, the learned courts below were justified in holding that presumption of its correctness could be drawn under Section 90 of the Act and the same was not required to be proved by producing the attesting witnesses since the original mortgage-deed in the possession of the defendants was never produced before the learned trial court.
7. Mr. R.R. Nagori, Sr. Advocate, also submitted that the suit could not be dismissed in view of Order 1 Rule 9 CPC prior to its amendment in the year 1977 since Munnalal and other daughters of Ram Chandra, the mortgagor, were impleaded later on by moving S.B. Civil Second Appeal No.212/2007 Jabber Lal & Ors. Vs. LR's of Ram Narayan & Ors. Judgment dtd. 30/05/2012 6/11 application under Order 1 Rule 10 CPC on 24.01.1976, however, the effective decree of redemption of mortgage, could always be passed even in their absence and, therefore, the entire suit could not be dismissed for want of the said Munnalal, who was husband of predeceased daughter of defendant-Ram Narayan and his other daughters. He further submitted that as far as appellant No.1- Jabberlal and appellant No.4 Kamla are concerned, they have admitted the mortgage in favour of their father Ram Chandra S/o Gokul Das and consequently on all the three counts, the learned appellate court was justified in holding in favour of plaintiffs that redemption suit deserves to be decreed.
6. Having heard both the learned counsels and upon perusal of record and judgments cited at bar, this Court is of the opinion that the present second appeal of the defendants has no force and is, therefore, liable to be dismissed as no substantial question of law arises.
7. The first contention of the learned counsel for the defendants-appellants, Mr. R.K. Thanvi, as to limitation, there is force in the submission of learned counsel for the respondents- plaintiff, Mr. R.R. Nagori that inview of acknowledgment in the notice given by the Advocate, Shri Mohan Lal Joshi, (Exhibit-3) dated 09.05.1962, the Explanation to Section 18 of the Limitation Act would get attracted and the acknowledgment made by the Advocate as an agent would also be sufficient acknowledgment and would extend S.B. Civil Second Appeal No.212/2007 Jabber Lal & Ors. Vs. LR's of Ram Narayan & Ors. Judgment dtd. 30/05/2012 7/11 the limitation. Consequently, the first contention of the defendants- appellants is liable to be rejected and the same is accordingly rejected.
8. The second contention of the learned counsel for the appellants, Mr. Thanvi, is about the mode of proof of the secondary evidence produced in the form of certified copy of the mortgage- deed. In view of decision rendered by the Hon'ble Supreme Court in the case of Smt. Dayamathi Bai Vs. K.M. Shaffi reported in 2004 AIR SCW 4419.which is complete answer to the said contention and the contention of the learned counsel for the defendants Mr. R.K. Thanvi is liable to be rejected accordingly. The Hon'ble Supreme Court in this case held that objection regard mode of proof of the evidence cannot be raised at the subsequent stage, if the objection as to the admissibility of the document in question as evidence itself was not raised at the initial stage. In that case also, the certified copy of the document (Ex.P/1), which was more than 30 years old, was held proved on the basis of Section 90 of the Evidence Act by drawing a presumption as to its correctness and execution and the Supreme Court dismissed the appeal of the defendants by following its earlier decision in the case of R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple and another, reported in (2003) 8 SCC 752.The relevant extract quoted from the 2003 (8) SCC 75.judgment is again quoted below for ready reference: S.B. Civil Second Appeal No.212/2007 Jabber Lal & Ors. Vs. LR's of Ram Narayan & Ors. Judgment dtd. 30/05/2012 8/11 ... Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objection as to admissibility of documents in evidence may be classified into two classes (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as an exhibit, an objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or S.B. Civil Second Appeal No.212/2007 Jabber Lal & Ors. Vs. LR's of Ram Narayan & Ors. Judgment dtd. 30/05/2012 9/11 method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior Court.
9. In the present case before this Court also, the admissibility of the certified copy of the mortgage-deed has not been questioned by the defendants at any point of time, therefore, the mode of proof through resort to presumption under Section 90 of the Evidence Act also cannot be now disputed. The learned court below was also justified in relying upon the judgment of Hon'ble Supreme Court in the case of Ishwar Dass Jain (supra) and judgment of this Court in the case of Mohan Lal & Anr. (supra). The second contention also, therfore, fails and is hereby rejected.
10. The third contention of the learned counsel for the defendants-appellants, Mr. R.K. Thanvi, about the impleadment of Munnalal, son-in-law of Sh. Ram Chandra (Mortgagee), and two other daughters, namely, Kamla and Laxmi, at latter stage also equally being devoid of any merit and the learned courts below were justified in relying upon the Rajasthan High Court decision in the case of Dwarka Prasad Vs. Gopi Nath & Ors. reported in AIR 195.Rajasthan 69, in which it has been held that a suit for enforcement S.B. Civil Second Appeal No.212/2007 Jabber Lal & Ors. Vs. LR's of Ram Narayan & Ors. Judgment dtd. 30/05/2012 10/11 of the mortgage security for redemption of the mortgage is not liable to be dismissed, if all persons having an interest either in the mortgage security or in the right of redemption have not been made parties. If an effective decree can be passed and rights of those parties not before the Court can be properly safeguarded even in the absence of some of the parties, suitable relief shall not be denied to the plaintiffs on this ground.
11. The judgment relied upon by Mr. R.K. Thanvi, learned counsel for the defendants-appellants do not apply to the facts of the present case and cannot enure to his benefit in view of the contrary Supreme Court decisions.
12. In the present case also, impleadment of Sh. Munnalal, at subsequent stage, does not render the suit defective beyond cure and in fact whatever defects was there stood cured with his impleadment during the pendency of the suit itself. Their interest can be safeguarded by distribution of mortgage money in their respective shares in the property of mortgagor, Ram Chandra S/o Gokul Das. Therefore, the suit as framed with the impleadment of son of Ram Chandra i.e. Jabberlal, appellant No.1 originally, could not have been thrown out on this ground and it cannot be said that no effective decree for redemption could be passed in the absence of the said son-in-law of the Mortgagee, Ram Chandra (Sh. Munnalal) and two daughters, who were also impleaded later on.
13. Accordingly, all the three contentions of the learned S.B. Civil Second Appeal No.212/2007 Jabber Lal & Ors. Vs. LR's of Ram Narayan & Ors. Judgment dtd. 30/05/2012 11/11 counsel for the appellants-defendants having been dealt with and rejected, this Court does not find any substantial question of law to be arising in the present second appeal so as to require any further consideration of any substantial questions of law in the matter at hand. The contentions raised are already covered by Supreme Court judgment or judgment of Rajasthan High Court.
14. Accordingly, the present second appeal filed by the appellants-defendants is thus found to be devoid of any merit and the same is hereby dismissed. No order as to costs. The decree and judgment of court below dated 29.09.2006 is upheld. (DR. VINEET KOTHARI) DJ/- S-146