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Judgment
Kh. Nobin Singh, J
[1] Heard Shri M. Rarry, Advocate for the petitioner and Shri Y. Lokendro, Advocate for the respondent.
[2] The instant Civil Revision Petition is directed against the order dated 19.05.2018 passed by the learned Civil Judge, Senior Division, Imphal West in Judl. Misc. Case No. 353 of 2017 which was filed in the suit being O.S No.54 of 2017 under Section 34 of the Specific Relief Act and the prayers made therein read as under:
"a. a decree declaring that the registered sale deed, dated being No. 1480 of the Sub-Registered (H.Q) Imphal, Manipur, dated 25.06.2012, is a deed of mortgage;
b. a decree for redemption of mortgage on repayment of the loan/mortgage amount by the plaintiff to the defendant in respect of the suit land;
c. a decree for perpetual injunction to retrain the defendant, his men and previes from entering into the suit land and also from claiming any right and title to the suit land on the basis of said sale deed (by nomenclature) by the defendant in any manner;
d. any other order (s) as the Hon'ble Court deems fit and proper, for ends of justice and equity;"
[3] The sum and substance of the averments made in the plaint filed by the respondent as recorded in the impugned order dated 19-05-2018, are that the respondent borrowed a sum of Rs.15,00,000/- (Rupees fifteen lakhs) only from the petitioner on agreement to execute a simple mortgage. On 25-06-2012 when the respondent went to the office of the Sub-Registrar (HQ), Imphal for the purpose of execution and registration of a deed of mortgage, the petitioner and his advocate were present with the stamp papers already prepared by them. The respondent put his signature and finger prints on the said stamp papers as per their directions without knowing the contents thereof. On 30-05-2017 when the respondent went to the petitioner for repayment of the borrowed amount with accrued interest thereon, he refused to accept the same stating that he had already purchased the suit land from the respondent through a sale deed. On the same day, he made enquiries from the revenue authorities and found that the suit land was mutated in the name of the petitioner on the strength of the alleged sale deed dated 25-06-2012. The respondent never intended to execute the alleged sale deed and after the refusal of receiving the borrowed amount, the petitioner started disturbing the peaceful possession of the suit land by the respondent. Hence, the suit was filed by the respondent praying for the aforesaid reliefs.
[4] As stated in the instant civil revision petition, the petitioner filed a written statement raising preliminary objections that the plaint is liable to be rejected at the threshold on the inter-alia grounds that the suit is barred by time; that it is liable to be dismissed for being under-valued as the appropriate ad-valorem Court fees have not been paid in respect of the registered sale deed; that the plaint has failed to disclose any cause of action.
[5] Thereafter, in the said suit, the petitioner filed an application being Judl. Misc. Case No.354 of 2017 dated 11.09.2017 under the provisions of Order 7 Rule 11 read with Section 151 of CPC praying for rejection of the plaint on the grounds mentioned in his written statement. The respondent filed his written objection to the said application on 19.09.2017.
[6] The learned Civil Judge, Senior Division, Imphal West, after considering mainly three points as aforesaid, dismissed the application vide its order dated 19.05.2018 impugned herein. Before dealing with the said three points, the learned Civil Judge, Senior Division observed that for the purpose of considering the application for rejection of plaint, the written statement and the documents filed along with it, were not necessary to be looked into, may be, for the reason that the application was to be considered and disposed of on technical grounds. The first point pertains to the cause of action for the reliefs claimed by the respondent against the petitioner. The learned Civil Judge, Senior Division was of the view that the factual allegations as highlighted in the plaint constitute a chain of circumstances which discloses cause of action. As regards the second point which relates to the question of limitation, the learned Civil Judge, Senior Division has opined that as the main relief sought for in the plaint is to declare the alleged sale deed to be a deed of mortgage, the suit would come within the scope of Article 58 of the schedule appended to the Limitation Act, 1963 which prescribes a period of three years for obtaining such a declaration from the day the right to sue first accrues. According to the learned Civil Judge, Senior Division, the right to sue first accrues on 30-05-2017 when the respondent found that the alleged sale deed was found to have been executed between him and the petitioner and in other words, it accrues when the respondent came to know about the existence of the alleged sale deed. The third point arose out of a bone of contention between the petitioner and the respondent as regards the valuation of the suit. The contention of the petitioner is that since the alleged sale deed has a consideration amount of Rs.1 lakh, the suit is to be valued accordingly. His contention finds no favour from the learned Civil Judge, Senior Division who has expressed its opinion that the suit is not for a cancellation of the alleged sale deed but it is for its declaration to be a deed of mortgage with consequential reliefs and that the suit has been appropriately valued by the respondent as per Section 7(iv)(c) of the Court Fee Act.
[7] Being aggrieved by it, the instant civil revision petition was filed on the inter-alia grounds that the learned Civil Judge, Senior Division committed an error when it failed to consider and appreciate the well settled principle of law that the oral stipulations as pleaded by the respondent in the plaint when pitched against the written contract i.e. the registered sale deed, would have to give way to terms and conditions of the written contract, which alone binds the party and nothing further, in terms of Section 91 and 92 of the Indian Evidence Act, 1872; that the learned Civil Judge, Senior Division failed to appreciate that consequent upon the execution of the sale deed, the name of the petitioner had been mutated as owner/ recorded pattadar in the revenue records of the State Government in terms of Section 46(2) of the Manipur land Revenue and Land Reforms Act, 1960; that the learned Civil Judge, Senior Division erred in fact and law in failing to correctly appreciate that when the respondent had admitted to execution and registration of the sale seed, he could not be permitted to contradict, vary, add or subtract it from the terms and conditions of the registered sale deed; that learned Civil Judge, Senior Division erred in law to appreciate that the relief prayed for by the respondent in the plaint for declaring the registered sale deed to be a mortgage deed, could not be allowed until the sale deed was cancelled; that while passing the order, learned Civil Judge, Senior Division ignored the provisions of law and in particular, Order VII Rule 11 of CPC; that the respondent being an educated person ought to be presumed to have read and understood the contents of the sale deed before endorsing his signature thereon as a token of his acceptance of the terms and conditions of the said deed and that the learned Civil Judge, Senior Division failed to appreciate that the respondent concealed the material facts about the mutation case.
[8] From the materials on record, the respondent appears to have not filed an affidavit in opposition in the matter, despite a number of opportunities being given to him by this Court.
[9] Reiterating the grounds taken in the instant civil revision petition as mentioned hereinabove and in order to substantiate his contention, Shri M. Rarry, Advocate has relied upon the decisions of the Hon'ble Supreme rendered in Roop Kumar Vs. Mohan Thedani, (2003) 6 SCC 595; S. Saktivel (Dead) by LRs Vs. M. Venugopal Pillai & ors., (2000) 7 SCC 104; Ramaswamy (Dead) by LRs Vs. M. Lobo (Dead) by LRs, (2001) 10 SCC 176 and Krishi Utpadan Mandi Samity, Sahaswan Vs. Bipin Kumar & anr, (2004) 2 SCC 283. On the other hand, Shri Y. Lokendro, Advocate, learned counsel appearing for the respondent has relied upon the same decision namely Roop Kumar Vs. Mohan Thedani, (2003) 6 SCC 595 and two more decisions of the High Courts-one, rendered by the Allahabad High Court in Yadav Ram Vs. Laxman Singh Bisht, (1978) AIR (Allahabad) 123 and two, by the Madras High Court in Arumoorthy Chettiar Vs. Secondary Education Committee of Vallala Sangam of Vadugupatti, (1962) AIR (Madras) 360.
[10] At the outset and before considering the applicability of the said decisions relied upon by the counsel appearing for the parties to the facts of the present case, it may be noted that the grounds taken by the petitioner in this civil revision petition have either not been taken before the learned Civil Judge, Senior Division or have been taken but not considered by the learned Civil Judge, Senior Division while deciding the application. If they have been taken but not considered by the learned Civil Judge, Senior Division, the right way or the remedy available with the petitioner is to approach the learned Civil Judge, Senior Division to consider them. In case they have not been taken at all before the Civil Judge, Senior Division, the same cannot be permitted to be taken before this Court. Since the order dated 19-05-2018 of the learned Civil Judge, Senior Division is being impugned herein, it is the bounden duty of the petitioner or for that matter, his counsel to point out the error committed by the learned Civil Judge, Senior Diviison in its order. On perusal of the impugned order dated 19-05-2018 passed by the learned Civil Judge, Senior Division, it is seen that only three main points raised by the petitioner, have been considered by it while disposing of the application. Not a single ground has been taken in this civil revision petition pointing out any error in the findings arrived at by the learned Civil Judge, Senior Division after the said three points being considered by it and therefore, this court has no option but to presume that the petitioner has no any grievance against the impugned order and consequently, the impugned order is upheld.
[11] The grounds taken in this civil revision petition as enumerated hereinabove, have something to do with the merit of the suit pending before the learned Civil Judge, Senior Division for trial. One of the grounds which the petitioner has emphasized before this court, is that the learned Civil Judge, Senior Division has failed to consider and appreciate the well settled principle of law as regards the interpretation of the provisions of Section 91 and 92 of the Indian Evidence Act, 1872. But there is not even a whisper in the order passed by the learned Civil Judge, Senior Division about it. Had this point been raised by the petitioner, it could have been considered by the learned Civil Judge, Senior Division. But it did not happen at all. As this Court is concerned only with the legality and correctness of the order dated 19-05-2018 passed by the learned Civil Judge, Senior Division, no observation can be made on the merits of the suit. The decisions relied upon by the learned counsel appearing for the parties are mainly on the issues relating to the interpretation of the provisions of Section 91 and 92 of the Indian Evidence Act, 1872 and therefore, there is no need of going into the question of applicability thereof to the facts and circumstances of the present case.
[12] In view of the above and for the reasons stated hereinabove, the civil revision petition is devoid of any merit and is accordingly dismissed. However, it is made clear that it is open to the parties to take the grounds on merit before the Civil Judge, Senior Division in accordance with law.