Osa No.12/2022 vs Ajay Vir Singh And Others on 20 December, 2024

Himachal Pradesh High Court

Osa No.12/2022 vs Ajay Vir Singh And Others on 20 December, 2024

Author: Tarlok Singh Chauhan

Bench: Tarlok Singh Chauhan

2024:HHC:15418
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
OSA No.12/2022.

Reserved on : 10.12.2024
Decided on: 20.12.2024
Bakshish Singh (since deceased)
through LRs and others ….. Appellants
Versus

Ajay Vir Singh and others
…..Respondents
Coram:

Hon’ble Mr. Justice Tarlok Singh Chauhan, Acting Chief
Justice
Hon’ble Mr. Justice Bipin Chander Negi, Judge
Whether approved for reporting1? Yes

For the Appellants : Mr. G.D. Verma, Sr. Advocate, with Mr.
Sumit Sharma, Advocate, for the
appellants.

For the Respondents : Mr. Janesh Gupta, Advocate, for
respondent No.1.

: Respondents No. 2(i), 2(ii) and 3 to 6

already ex parte.

: Mr. Karan Singh Kanwar, Advocate, for
respondents No. 7 to 14.

: Mr. Desh Raj Thakur, Advocate, for
respondents No. 15 to 18.

: Mr. Ashok Kumar Tyagi, Advocate, for
respondents No. 19 to 23.

Bipin Chander Negi, Judge

The present appeal has been preferred against

judgment dated 01.08.2022, whereby the learned Hon’ble Single

Judge has allowed an application filed by respondents No. 15 to 18

under Order 7 Rule 11 (b) and (d) CPC. The brief facts giving rise to
1
Whether the reporters of the local papers may be allowed to see the judgment?

2 2024:HHC:15418

the present appeal in the case at hand are that one Basant Singh

had created a simple mortgage without possession on the suit land

in favour of one Ram Singh. The amount borrowed was Rs.800/-.

The simple mortgage had been created with an undertaking to pay

the mortgage money within three years. In default whereof the

mortgagor was to pay 75 paisa w.e.f the date of execution of the

mortgage deed till three years thereafter. With a further stipulation

that if in case there is a default in making repayment then the

mortgager would pay penal compounding interest.

2. The mortgage was registered with the Sub Registrar

on 26.06.1931. At the time of recording of the same in the revenue

record, Ram Singh had expired. Therefore, the mutation of

mortgage was attested in favour of Tara Singh i.e. son of Ram

Singh. The present petitioner, respondents No. 22, 23 and proforma

respondents No. 19 to 21 are all successors-in-interest of Tara

Singh.

3. After the death of Basant Singh and the subsequent

death of his wife, his estate was inherited by his two daughters

Rattan Kaur and Pritam Kaur in equal shares. Respondents No. 2

to 13 are the legal heirs of Rattan Kaur and respondent No. 14 is

the legal heirs of Pritam Kaur.

4. Rattan Kaur sold her share to defendant No.1 on

18.02.1999. Similarly, Pritam kaur sold her share to defendant No.1

on 26.06.2000. Defendant No.1 in the month of January, March,
3 2024:HHC:15418

May of 2019 sold part of the suit land purchased from Rattan Kaur

to respondents No. 15 to 18. Mutation No. 1240 dated 07.08.2018

was attested by the revenue authority deleting the names of the

petitioners, respondents No. 22 and 23, proforma respondents No.

19 to 21, who being successor-in-interest of Tara Singh had been

recorded as mortgagees.

5. In the aforesaid backdrop in the suit filed on

13.01.2020 by the present petitioners alongwith respondents No. 22

and 23, a declaration has been sought qua sale deeds entered into

between Rattan Kaur and Pritam Kaur with defendant No.1 in the

years February, 1999 and June 2000. Other than the aforesaid,

declaration has been also sought qua mutation No. 1240 dated

07.08.2018 and qua sale deeds entered into between respondent

No.1 and respondents No. 15 to 18 in the months of January,

March, May, 2019. Besides the aforesaid, a declaration has been

sought qua the petitioners, proforma respondents No. 19 to 21 and

respondents No. 22 and 23 having become owners of the suit land

based upon the principle of foreclosure. Other then the aforesaid,

permanent prohibitory injunction has been sought against the

contesting respondents restraining them from interfering, raising

illegal construction, creating any charge or changing the nature or

alienating the suit land. A mandatory injunction has also been

sought for demolition of illegal construction raised by the contesting

respondents on the suit land.

4 2024:HHC:15418

6. Heard counsel for the parties perused the plaint,

documents appended therewith.

Order 7 Rule 11 CPC, reads as under:

“11. Rejection of plaint.–The plaint shall be

rejected in the following cases–

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the
plaintiff, on being required by the court to correct
the valuation within a time to be fixed by the court,
fails to do so;

(c) where the relief claimed is properly valued but
the plaint is written upon paper insufficiently
stamped, and the plaintiff, on being required by the
court to supply the requisite stamp paper within a
time to be fixed by the court, fails to do so;

(d) where the suit appears from the statement in
the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the
provisions of Rule 9:

Provided that the time fixed by the court for the
correction of the valuation or supplying of the
requisite stamp-papers shall not be extended
unless the court, for reasons to be recorded, is
satisfied that the plaintiff was prevented by any
cause of an exceptional nature from correcting the
valuation or supplying the requisite stamp-papers,
as the case may be, within the time fixed by the
court and that refusal to extend such time would
cause grave injustice to the plaintiff.”

5 2024:HHC:15418

(emphasis supplied). Reference in this respect
can be made to case titled Dahiben v. Arvindbhai
Kalyanji Bhanusali, reported as (2020) 7 SCC

366. Principles culled therein are being referred to
hereinbelow;

7. The remedy under Order 7 Rule 11 is an

independent and special remedy, wherein the court is empowered

to summarily dismiss a suit at the threshold, without proceeding to

record evidence, and conducting a trial, on the basis of the

evidence adduced, if it is satisfied that the action should be

terminated on any of the grounds contained in this provision.

8. The provision of Order 7 Rule 11 is mandatory in

nature. It states that the plaint “shall” be rejected if any of the

grounds specified in clauses (a) to (e) are made out. If the court

finds that the plaint does not disclose a cause of action, or that the

suit is barred by any law, the court has no option, but to reject the

plaint.

9. The underlying object of Order 7 Rule 11(d) is that if

in a suit, the suit is barred by limitation under Rule 11(d), the court

would not permit the plaintiff to unnecessarily protract the

proceedings in the suit. In such a case, it would be necessary to

put an end to the sham litigation, so that further judicial time is not

wasted.

10. In exercise of power under this provision, the court

would determine if the assertions made in the plaint are contrary to
6 2024:HHC:15418

statutory law, or judicial dicta, for deciding whether a case for

rejecting the plaint at the threshold is made out.

11. Indisputably, the mortgage created in the case at

hand is a “simple mortgage as defined under Section 58(b) of the

Transfer of Property Act 1882″. The mortgage in the case at hand

has been created without delivery of possession. The mortgagor

has bound himself to pay the mortgage money. On failure to pay

mortgage money, the mortgagee has a right to sell the mortgage

property and to apply sale proceeds towards mortgage money.

12. In the case at hand, the mortgager had agreed to pay

the borrowed money within three years. The mortgage deed in the

case at hand had been created on 26.06.1931. Therefore, the right

to recover the borrowed amount accrued on 26.06.1934. In terms

of Article 62 of the Limitation Act 1963, a suit to enforce payment of

money secured by mortgage could have been filed within 12 years.

Hence, in the case at hand, the right to recover the mortgage

amount expired on 26.06.1946. However in the case at hand the

suit filed is not one for recovery of the mortgage money.

13. While examining the case on the principle of

foreclosure, the Hon’ble Single Judge has correctly taken note of

Chapter-IV of Transfer of Property Act & specifically Sections 67,68

thereof. Thereafter, it has correctly been held that in the case of a

simple mortgage, right of foreclosure is not available in law, hence,
7 2024:HHC:15418

the claim of acquisition of ownership on the mortgaged property on

this account is misconceived.

14. In the case at hand, the suit filed is a simplicitor suit

for declaration that the petitioners alongwith proforma respondents

No. 19 to 23 and respondents No. 22 to 23 having become owners

of the suit property. Admittedly in the case at hand, the aforesaid

individuals are not in possession of the suit land. In terms of

Section 34 of the Specific Relief Act, specially the proviso thereto,

no declaration can be issued in favour of a party which being able

to seek further relief then a mere declaration of title omits to do so.

Hence, on this account also, the suit is not maintainable as being

barred by law.

15. Admittedly the petitioners along with proforma

respondents No. 19 to 23 and respondents No. 22 to 23 are neither

in possession nor are owners of the suit land. No relief of

possession qua the suit land has been claimed. As already stated

supra in case of a simple mortgage right of foreclosure is not

available. Therefore, neither relief of permanent prohibitory

injunction nor mandatory injunction can be granted to the

petitioners along with proforma respondents No. 19 to 23 and

respondents No. 22 to 23.

16. A declaration qua mutations attested in February,

1999 and June 2000 is being sought in a suit filed on 13.01.2020.

Article 58 of the Limitation Act provides three years limitation to
8 2024:HHC:15418

obtain any other declaration from the date when the right to sue

first accrues. The word “First” has been used between the word

“sue” and “accrues”. Meaning thereby that whereas a suit is based

on multiple causes of action, the period of limitation shall begin

from the date when the right to sue first accrues. Since the right to

challenge sale deeds made by Rattan Kaur, Pritam Kaur to

respondent No.1 in February 1999 and June 2000 is patently

barred by limitation, therefore, declaration qua subsequent sale

deeds made in the months of January, March, May 2019 is not

maintainable. Reference in this regard can be made to the apex

court judgement in Khatri Hotels (P) Ltd. v. Union of India ,

2011(9)SCC 126.

17. It is a well settled proposition of law that the plaint

cannot be rejected partially. (Biswanath Banik v. Sulanga Bose,

(2022) 7 SCC 731).

In view of the aforesaid there is no merit in the

appeal, the appeal stands dismissed, so the pending application(s),

if any.

(Tarlok Singh Chauhan)
Acting Chief Justice

(Bipin Chander Negi)
Judge

20th December, 2024
(tarun)