1990 PLP 1715 (CLC)

As the defendants had taken up the plea of res judicata for barring trial of a fresh suit for redemption, on 23‑11‑1971, the trial Court settled an issue on this point and treated it as preliminary and postponed framing of issues on merits. By judgment dated 25‑1‑1973, the trial Court found against the defendants and held that the decision in the earlier suit did not operate as res judicata. Against this decision, defendants preferred a revision which was heard by an Additional District Judge who agreed with the trial Court, and, affirming its conclusions, on 24‑1‑1974, declined to interfere. This matter was not agitated further. After having decided the preliminary issue on point of res judicata, the trial Court settled issues on merits, as many as nine in number including that of relief. Issues are: (1) Whether the rate of interest as given in the mortgage deeds in dispute is illegal. If so what is the legal rate of interest? OPP. (2) Whether the defendants have been receiving rent of the mortgaged house. If so, at what rate and whether it can be deemed as interest? OPP (3) Whether the use and occupation of the mortgaged house amounts to interest. If so to what amount? OPP (4) Whether the principle Damdupat applies to the transaction in dispute? OPP. (5) On what amount the plaintiffs are entitled to redemption of mortgage? OPP. (6) Whether the defendants have received the amount in excess of what determined at issue No.5? If so to what effect? OPP. (7) Whether the defendants have made any improvements in the disputed property. If so, to what extent and at what costs and to what effect? OPD. (8) Whether the plaintiffs have not come with clean hands? OPD. (9) Relief. In support of the above issues, plaintiffs gave oral evidence of number of witnesses to prove occupation of the house by the mortgagees as also its approximate rental to show the benefits received by them. Despite time and adequate opportunity, defendants did not care to produce evidence on issues burden whereof lay upon them. Consequently, on 14‑10‑1975, trial court was constrained to close their evidence. In this state of record, the trial Court upon a conjoint discussion of issues No.4 and 5 together found that plaintiffs were entitled to redeem the mortgage upon payment of Rs.537 as mortgage money, and, arriving at this figure gave credit to the plaintiffs for Rs.99 which sum was included as interest in the mortgage money. Issues 1 to 3 and 6 were left undecided. In regard to issues No.7 and 8, it was observed that defendants gave no evidence to support them Under issue of relief, the trial Court directed that plaintiffs are entitled to possession of the mortgaged property upon payment of Rs.537 as mortgage money. Decree followed the judgment. Aggrieved defendants preferred an appeal. Both Babar Kamal, and Mst. Ghuncha Firdaus were shown as majors in the memorandum of appeal. Though number of grounds were taken in memorandum of appeal, yet, as the judgment of learned Additional District Judge would indicate, only issue debated at the hearing was that instead of a decree for redemption in respect of a half share in the house, the trial Court had decreed redemption for whole of the house. It transpires from the records of the lower appellate Court that respondents agreed to the clarification sought by the appellants, and, consequent modification of the trial Court's decree to the extent of one‑half share in the house and this is what the learned Additional District Judge also observed in his judgment. To assist clarity about the points urged before the lower appellate Court, it shall be advantageous to refer to the judgment rendered by it. It is a short judgment. After stating some preliminaries it was observed in it:‑ "In paras No.3 and 4 of the memorandum of appeal the only ground on which the judgment and decree of the learned trial Court have been challenged is that the trial Court had passed decree for whole of the house whereas the plaintiffs' father was the owner of 1/2 share of the disputed house. It is clear from the contents of para. No.3 of the plaint that the plaintiffs only claimed 1/2 share in the suit property and the decree is in respect of the half of the house only. The learned counsel for the plaintiffs respondents also made a statement to this effect in the Court today. Hence, this objection is misconceived. (4) The learned counsel of the appellants did not address the Court on any other point mentioned in the memorandum of appeal (emphasis supplied). He also did not press the application under Order 41, Rule 27, C.P.C." Defendants did not feel satisfied with the dispensation of the learned lower appellate Court, and, preferred a revision petition to this Court. Except for the ground No.1 in the revision petition which was not pressed at the hearing, the whole emphasis in the revision petition was laid upon the alleged minority of Mst. Ghuncha Firdaus at the time of filing of the suit, and, want of compliance with procedure relating to appointment of the guardian ad‑litcm for Babar Kamal and it was on these two pleas that the civil revision was admitted on 12‑2‑1978 by my learned brother M.E. Rana, J. Admission order re‑enforces the above point. It reads: ‑ "States that petitioner No.8 was shown as major whereas she was minor at the time of the institution of the suit, and that petitioner No.6 was not represented by a properly appointed guardian ad‑litem. Admit. Notice. Execution of the decree is stayed meanwhile subject to notice." It is manifest from the above that the controversial point in the Court below was the extent of share of .the property sought to be redeemed but the revision petition was diverted to minority of Mst. Ghuncha Firdaus, and imporper appointment of guardian ad‑litem for Babar Kamal. However, at the hearing of the revision petition, Khan Mohammad Bajwa, Advocate, learned counsel for the petitioners expanded the area of controversy to the points neither referred to nor commented upon in the Courts below. Apart from the pleas of minority of Mst. Ghuncha Firdaus, and, alleged defect in the appointment of guardian ad‑litem for Babar Kamal, learned counsel argued that: (1) without a preliminary decree in terms of Order XXXIV, rule 7 of Civil Procedure Code, final decree for redemption of the mortgaged property and delivery of its possession could not be made. In support, he referred to Tikamdas and Pahlajra v. Abdul Wali and others P L D 1968 SC 241, Muhammad Shamshad v. Haji Allah Rakha‑‑1980 S C M R 397, Sultan Ali v. Khushi Muhammad P L D 1983 SC 243; (2) that the petitioners were entitled to the payment of present day money equivalent of mortgage money advanced by them to Ralla Singh before mortgage was redeemed. I shall first attend to the points taken in the revision petition relating to alleged minority of Mst. Ghuncha Firdaus at the time of institution of redemption suit and its possible consequent effects upon decision of the suit as also the alleged defect in the appointment of guardian ad‑litem for Babar Kamal and after having dealt with them, shall advert to the other points which were neither debated in the Courts below nor taken in the revision petition. As for the defect in procedure relating to appointment of guardian ad‑litem for Babar Kamal, I see no real substance in it. In the first instance, Babar Kamal was cited as major in the plaint. In the written statement filed by the defendants, his minority was disclosed in preliminary objection No.l. Thereupon, plaint was amended and he was shown as minor and his mother Mst. Balqees defendant No.2 was proposed as his guardian ad‑litem. List of near relatives of the minor defendant was annexed to the amended plaint. His relatives were his uncle, mother, brothers and sisters. None of them agreed to act as his guardian ad‑litem in the suit. Therefore, the trial Court was constrained to appoint its Reader as his guardian ad‑litem. Orders passed by the trial Court on 13‑7‑1971 and 13‑9‑1971 are in point. They gave sufficient justification for the appointment of the Reader as guardian ad -litem. Above two orders reads:‑‑ "Counsel for the plaintiff, counsel for defendants, 1 to 5, 7 and 8 present. The proposed guardian of the minor defendant No.6 refused to receive the notice and was served by affixture. She is defendant No.2. She is absent. Other defendants are also relatives of the minor defendant No.6. Their learned counsel says that none of them is willing to be appointed as guardian of minor defendant No.6. Therefore, counsel for the plaintiffs has said that Reader of the Court be appointed as guardian for the minor. Before the Reader is appointed as his guardian, notice to the minor be issued in lieu of process fee in that respect for 13‑8‑1971. Minor defendant No.6 was served through his brother. The Reader of the Court is appointed as his guardian. The plaintiff should pay Rs.30 as fee for the guardian. To come up for the written statement on 25‑10‑1971." There is no doubt that rule 3 in Order XXXII, Civil Procedure Code governs the appointment of the guardian ad‑litem for a minor defendant. In terms of its plain language, it casts a duty on the Court to make a proper order so that the case of a minor litigant does not suffer by default to representation. Provisions of the rule are imperative. However, in the instant case, all necessary steps were taken and formalities fulfilled for appointment of a guardian ad‑litem by the trial Court. There was no defect in the procedure adopted by the trial Court in this behalf. The trial Court took all the precautions to bring forth a proper person from the relations of the minor who could act for him in the suit. When all agreed to decline, the Court had no option but to appoint its Reader as guardian ad‑litem to protect the interests of minor defendant. Reader filed written statement on his behalf and pursued the matter diligently as far as he, could. Other defendants who were close relations of the minor and had "community of interests with him, despite time and opportunity chose not to give defence and allowed the trial of the suit to proceed upon the materials brought on file by the plaintiffs. To me, it appears that the order appointing Reader as guardian ad‑litem was in accordance with the procedural requirements of the Code. It did not suffer from any infirmity. No objection in regard to it was taken either before the trial Court or in appeal before the lower appellate Court. Babar Kamal had attained majority, when the matter came up in appeal but raised no objection with regard to his guardian ad‑litem or his conduct. No prejudice is shown to have been caused to him either. Even if there was some irregularity in the procedure adopted by the trial Court, it did not affect the merits of the decision. I shall now take up the case of Mst. Ghuncha Firdaus. Reference to original records would indicate that in the Courts below, such an objection was not raised by the petitioners. It surfaced for the first time in the revision petition filed in this Court. It shall be of advantage to note that Mst. Ghuncha Firdaus was described as major in the memorandum of appeal filed in the Court below on 11‑12‑1975, but no objection was taken on her behalf that at the time of institution of the suit in the trial Court, she suffered from a disability. She was impleaded alongwith her close relations including her mother. Who could be better judge of her age than these persons. Despite that, none pointed out to the plaintiffs or the Court that she was minor and could not be sued except with the aid of guardian ad‑litem. 1t raises a clear inference that this belated objection was intended for further prolongation of the possession of the mortgaged property. Minority of Mst. Ghuncha Firdaus was sought to be established by an extract from the birth register and a photo copy of secondary school 'certificate examination through additional evidence which I do not feel inclined to admit. Extract from the birth register shows that she was born on 22‑11‑1953 whereas, the photo copy of secondary school certificate examination indicated her date of birth on 9‑4‑1955. Parties fought out the litigation at arms length fully knowing what they had to meet with full opportunity to substantiate their respective versions. It may be stated even at the risk of repetition that at no stage of proceedings in the trial Court, objection relating to minority of Mst. Ghuncha Firdaus was taken by the defendants who were assisted by an Advocate. In this B view, the objection appears to be wholly inconsequential and nothing turned on it to benefit the petitioners. Decision in Saadullah Khan and others v. Kaki Jan and others P L D 1962 (W.P.) Peshawar 171 supports me. ' After having disposed of points taken in revision petition, I shall revert to the other contentions of the learned counsel for the petitioners relating to payment of present day equivalent of mortgage money and the question whether straightaway final decree could have been made without first passing a preliminary decree as required by Order XXXIV, rule 7, Civil Procedure Code. As these pleas were not agitated in the Courts below, there are no findings recorded on them. Also, in the Court below, controversial point was confined to the share of the house sought to be redeemed by the plaintiffs and nothing more. Therefore, it shall neither be just nor legal to allow the petitioners to enlarge the scope of controversy in revision for taking up additional points. The question for the payment of present equivalent money value of the mortgage amount involved a detailed factual inquiry into variety of factors and necessary date for a proper conclusion on it is not available on file. Also, entitlement of the petitioners to lay such a claim is open to serious question. Be that as it may, in absence of proper material and legal assistance, I do not propose to comment on it any further and feel content to observe that as this point was not agitated in the Courts of fact, B petitioners could not be permitted to canvass it in revision. As to the other point relating to a preliminary decree before passing a final decree, suffice it to observe that it is not necessary that in every mortgage suit, there should be a preliminary decree before a final decree is passed by the Court. It depends upon the facts and F circumstances of each case, whether a preliminary decree is required to be made before a final decree is passed in the mortgage suit. Looking at the facts of the case, in the first instance, plaintiffs claimed rendition of accounts for ascertaining the income from the mortgaged property received by the defendants for determining the amount payable by them for redeeming the mortgage and recovering possession of the redeemed property and in case the benefits realised by the mortgagees were found in excess of the mortgage money, a decree for its payment to them, but at the trial, relief for rendition of accounts and recovery of F the additional amount if any was abandoned and was no more kept alive for debate and decision. Mortgage amount payable for redeeming the mortgage has already been worked out by the trial Court. Plaintiffs are agreed to pay it to the '' mortgagees for recovering possession of the mortgaged property. Therefore, there was no need for an inquiry contemplated in Clause (a) of rule 7 of Order XXXIV, Civil Procedure Code. As held in Roshan Lal v. Bhuri Singh and others A I R 1922 All. 479, even if a preliminary decree were passed and followed by a final decree, the result would be only a prolongation of the proceedings without any good being done to either party, except that by this delay what the mortgagees really want is a longer period of possession over the property. In Manicka Chetty v. Kuppusami Asari and others A I R 1926 Mad. 644, the Court took the view that it was not absolutely necessary that in every mortgage suit, there should be a preliminary decree before a final decree is passed. In Marimuthu Muthiriar v. Ayyathurai A I R 1978 Mad. 246, similar views were expressed on this point and upon analysis of relevant rules of Order XXXIV bearing on the point, it was said:‑ "

8. The provisions contained in Rr. 7, 8 and 9 of 0.34, C.P.C. contemplating the passing of preliminary decree first and final decree at a later stage are for the purpose of giving an opportunity to the mortgagor to deposit the mortgage amount due to the mortgagee. But in a case where there was no dispute regarding the amount due to the mortgagee and the mortgagor has in fact posited the mortgage amount even at the time of filing of the suit, it is not as if the Court has no jurisdiction to straightaway pass a decree for redemption without passing a preliminary decree and waiting for an application for a final decree to be filed.

9. In the Allahabad case referred above, it has been held that where there is a valid mortgage and a deposit is made in the Court by the mortgagor to redeem it, the Court is not bound to first pass a preliminary decree and then a final decree which means the prolongation of the proceedings, if no injustice will be done to either party by the passing of the final decree at once. Learned counsel for the defendant tried to distinguish this decision. But there is no real distinction on facts between the case and this one. Manicka Chetti v. Kuppuswami Asari, A I R 1926 Mad 644, is a case where a decree was passed for redemption on compromise between the parties. It has been pointed out that it is not absolutely necessary that in every mortgage suit there should be a preliminary decree before a final decree is passed." Present case was a clear instance of a simple suit for redemption. Case set up at the trial did not contemplate an inquiry visualized in rule 7 (a) of Order XXXIV, Civil Procedure Code. In this view, absence of a preliminary decree did F not cause any injustice to the petitioners. Eversince 1911, possession of the mortgaged house was with the mortgagees. Firstly, it was with Ralla Singh and I upon sale of mortgagee rights by him in 1933, possession came to vest with the present defendants. Meanwhile, mortgagor or his successors were excluded from receiving any benefit from the mortgaged property. In my opinion, further prolongation of the proceedings shall be to nobody's interests except the mortgagees who may be interested to hold on the possession of the house so long as it was possible for them by keeping the proceedings alive. So far as merits of the case go, petitioners have none. Agreed findings of the Courts below correctly necessitated a decree for redemption in favour of the plaintiffs‑respondents and the Court below rightly passed such a decree upon payment of the amount determined by them. With the conclusions of the Courts below which seem to be perfectly just and legal, I could discover no fault. As for the judgments of the Supreme Court pressed hard on me, they proceeded upon distinguishable facts and lay down a different ratio which is inapplicable to the facts of the present case. But before concluding, I must observe that there is one aspect about the form of the decree which though was not attended to at the hearing by the learned counsel for the parties, yet it must not go unnoticed. The trial Court decreed redemption upon payment of Rs. 537 and delivery of possession of the property in dispute to the plaintiffs. It did not take notice of essential requirements of Clause (c) of rule 7, in Order XXXIV, Civil Procedure Code, which inter alia provided for delivery of the documents relating to the mortgaged property, its re‑conveyance to the mortgagors and also transfer of possession to H them. Prima facie, the form of the decree passed by the trial Court is violative of Order XXXIV rule 7, Civil Procedure Code and may require rectification either by this Court or by the trial Court. For elucidation of the point about form of the decree to be passed civil revision shall be relisted on 20‑6‑1990. Parties and their learned counsel be intimated to come prepared to address the Court on this point. A separate order in the order sheet has also been made to that effect. Having reheard the matter about the form of the decree to be passed which prima facie looked to be violative of Order XXXIV, rule 7 (c), Civil P.C., as found by the Supreme Court in 1980 S C M R 397, Muhammad Shamshad v. Haji Allah Rakha, error in the form of decree requires rectification. Accordingly, to this extent only, civil revision is allowed, and the case is remitted to the trial I Court to "rectify the error in terms of Order XXXIV, rule 7 (c), Civil P.C." Costs in the Civil revision shall follow the event. Records be returned. Parties shall appear in the Court below on 14‑7‑1990. M.BA./M‑2175/L Order accordingly.