L. Devi Dass vs Mt. Devki Devi

Passey, J.—This appeal by Mt. Devki Defendant has been brought against the preliminary decree passed in favour of the Plaintiff on 23-12-2005 by the Sub-Judge Ist class, Patiala,, in a redemption suit on payment of Rs. 8,000-0-0, Devi Dass Plaintiff has also filed an appeal No. 10 of 2006 claiming that the entire charge on the mortgaged property has been washed off by its income during the period of the mortgage. The Plaintiff''s father Ganesh Dass mortgaged on 1-5-1951 Bk. his four shops, three of which were situate in Katra Nauhrian and the fourth in Bazar Chowk Qilla Mubark Patiala for Rs. 8,000-0-0 to Syed Nazir Husaain son of Syed Imdad Ali of Samana. The property was then bringing to the owner Rs. 245 as rent every year. The interest on the mortgage money was fixed at Rs. 400 per annum to give a yield of 5 per cent per annum, and the other essential conditions of the mortgage were that (a) the mortgagor would not ask for redemption before four years after the expiry of which he would be entitled to get the property back on payment of the mortgage money, (b) the usufruct which was then assessed at Rs. 245 per annum, was to be appropriated towards discharging the liability for interest partially and the balance of Rs. 155 due to the mortgagee on account of interest would be paid separately by the mortgagor annually failing which the mortgagor would pay interest on Rs. 165 also at the rate of 5 per cent, (c) the mortgagee would, after notice to the mortgagor carry out necessary repairs and the amount so spent would also carry interest at the same rate, (d) the mortgagor would get the property redeemed on full payment of the mortgage money and interest etc. after four years but during the continuance of the mortgage the mortgagee would have the rights to change the-tenants and to let out the property on a higher or lower rental and in case of fall in income the mortgagor would make up the deficiency or loss, and if the yield went up his account would be credited with the enhanced amounts so received and (e) if the mortgagor would not pay Rs. 155 with interest during the stipulated period of four years, the property would be deemed to have been sold in lieu of the mortgage money and a sale-deed would be executed by the mortgagor and in that case the objection that the property was in mortgage only would not be heard. The exact words pertaining to this term are "agar mayad muqararme Rs. 155 mai muna fake ada na hoga to yeh kul jaidar zer-i-karya jawega. Phir waqat bai ke hujat rehin ki musmuh na hogi". On 24-3-1987 Zakir Husaain nephew and successor-in interest of Nazir Hussain original mortgagee, sold the mortgogee rights in one shop situate in Katra Nauhrian for Rs. 5,500 to Amin Chand who is represented in these proceedings by his adopted son Sham Lal Defendant 2. On 9-10-1988 Zakir Hussain further sold his mortgagee rights in the remaining three shops for Rs. 6,000 to Mt. Devki wife of Bashambar Dass alias Balu Ram Defendant 3 Mt. Devki on 26-6-1994 mortgaged her mortgagee rights in two shops in Katra Nauhrian for Rs. 5,000 with Nikku Mal Defendant 4. Devi Dass brought this suit for redemption on 4-1-2004 and claimed possession of the mortgaged property without payment of any principal or interest as he contended that the income of the property during the years of the mortgage had far exceeded its liability under the mortgage covenant. The Defendants opposed the suit chiefly on the ground that the Plaintiff had lost his right to redeem in view of the foreclosure clause in the deed of mortgage dated 1-5-1951 Bk. and stressed in the alternative that the Plaintiff could in no case ask for possession without payment of the mortgage money and interest that had accrued thereon. In this suit, representatives of the original mortgagee and the subsequent transferees have been impleaded as Defendants. The suit has been fought out chiefly on two issues, namely, the right of the Plaintiff to redeem the property and the amount due upon the mortgage. It may be mentioned here that Mt. Devki by her application dated 24-4-2004 had also initiated proceedings for foreclosure separately under the Hidayat of 1922 Bk. This application has been tried along with the suit of Devi Dass hut dismissed. In the redemption suit a preliminary decree has been passed in these words:

I therefore pass a preliminary decree in favour of the Plaintiff against the Defendants that If the Plaintiff pays into Court the amount of Rs. 8000 on or before 22nd of Jeth, 2006, and also pays into Court fees of the Commissioner as the Court has directed within a fortnight from the date of filing in Court the above report by the Commissioner, the Plaintiff shall be entitled to apply for the final decree and in case of default in the payment of the aforesaid amount the suit shall stand dismissed. In view of all the circumstances of the case, the parties ate left to bear their own costs.

Against this decree, out of the Defendants, only Mt. Devki has appealed. Devi Dass has also filed a cross appeal praying that he should be allowed costs of the suit and absolved of the decretal amount and held entitled to obtain possession of the mortgaged property without paying anything to the Defendants. Mt. Devki has re-agitated her plea that by virtue of the foreclosure term of the contract, the Plaintiff has lost all rights, title and interest in the property and that on that account his suit should be thrown out. The prayer clause in the grounds of appeal is directed to seeking that relief alone, although in the earlier paragraphs the correctness of the fixation of Rs. 8000 as the amount due to her has also been disputed. After about eleven months of the decree under appeal and after about ten months of the tiling of her appeal by Mt. Devki, Sham Lal Defendant 2 made an application on 11-11-2006 for being transposed as an Appellant in the appeal preferred by Mt. Devki. The case had been partly heard by us on 10-11-2006 but no such application was submitted on that day. He had himself a right to appeal which he did not exercise and his object in figuring as an Appellant at that late stage appeared to us to be only to give strength if it was possible, to the appeal of Mt. Devkio. The application was consequently dismissed on 11-11-2006.

Mr. Nehra has drawn our attention to the judgment of the trial Court with a view to point out that it fails to conform to the requirements of Order 20 Rule 4, Code of Civil Procedure. The judgment in our view contains sufficient discussion of the points raised in the arguments and pleadings of the parties and they can easily know from the judgment and understand the grounds of the decision. Although the method of approach is not so lucid or elaborate, the various aspects of the case and questions involved have been properly appreciated and determined. At any rate, the learned Counsel has not been able to make out a case of his client having been prejudiced by the supposed defect caused by the alleged failure of the Court to adhere rigidly to the provisions of Rule 4 of Order 20, Code of Civil Procedure. There is thus no force in the objection of the learned Counsel and the same is overruled.

It has been contended on behalf of the Appellant that the preliminary decree is a nullity as it has been pissed by a Court which had no jurisdiction to try the suit. More precisely the argument of Mr. Nehra is that the Sub-Judge 1st Class could only try suits of the value of Rs. 10,000 or below and that the value of the subject-matter in this case was far in excess of the maximum of his pecuniary jurisdiction. The ground on which this argument is based is that jurisdictional value of the suit in a case of redemption according to the Suits Valuation Act, must be its market value. He also relies upon Rule 9 contained in Ch. 13 of the rules framed u/s 28, Patiala Civil Courts Act, 2001, according to which the amount of principal mortgage money and interest calculated on the terms of the mortgage at the date of the institution of the suit, is to be the value of the action for jurisdictional purposes. The learned Counsel maintains that calculated in terms of the said Rule 9, the value of the suit for fixing jurisdiction was much more than Rs. 10,000. The position regarding couch-fee does not present any difficulty as Section 7, Sub-clause (ix). Court-fees Act, makes it abundantly clear that it would be payable on thy principal money expressed to be secured by the instrument of mortgage, where the suit is for the recovery of the property mortgaged, or for foreclosure or for a declaration that the sale has become absolute where the mortgage was male by conditional sale. The rules prescribing modes of assessment of court fees are, however, of little help in determining the market value of the property which would govern the competency of the Court to take cognizance of a suit belonging to one of the categories above named. Barring cases where the Law of Suits Valuation prescribes that the value of a suit for purposes of jurisdiction and court-fees shall be the same, as in that case the Plaintiff is cot left with any option to place any value of choice and he cannot give different values for court-fees and jurisdiction, the method of calculating court-fees (which is prescribed for fiscal reasons) cannot be the proper way or guide to reach the value of the claim advanced in a suit for ear-marking jurisdiction. In a case of the nature which is outside the scope of Section 8, Suits Valuation Act, two different valuations for court-fee and jurisdiction have to be specified by the Plaintiff He must disclose in the plaint as to what is the value of the suit for purposes of jurisdiction as distinguished from the value for purposes of court-fee which is computed according to rules set out in the Court-fees Act.

The Plaintiff in the case under examination fixed Rs. 8000 as the value of his claim for purposes of jurisdiction. This was incidentally the same value as was required to be fixed by Section 7, Sub-clause (IX), Court fees Act. Without evidence that the market value of the mortgaged property was in excess of Rs. 8000, it would not be reasonable or fair to presume that Rs. 8000 did not correctly represent the market value. There has thus been no deviation from or infringement of the rules of the Suits Valuation Act relating to fixation of value of the suit for purposes of jurisdiction. Coming to Rule 9 framed u/s 28, Patiala Civil Courts Act, which has now been repealed by Section 119, Ordinance No X [10] of 2005 it has to be observed that it requires that the value of a redemption suit for jurisdictional purposes should be the aggregate of the principal and interest due on the date of the suit for redemption. The interest has to be calculated according to the terms of the mortgage and if none is found due on the date of the suit the principal alone would form the value for jurisdiction. In view of the peculiar terms of the contract of mortgage made on 1-5-1951 Bk. and the fact that the accounts must have been with the mortgagee and they were not produced, it was not possible for the Plaintiff to ascertain if any money was at all duo as interest to the mortgagee on the date of the suit and now on investigation of the issue regarding the amount due to the mortgagee, it has been found that he is not entitled to any. No objection regarding jurisdiction was raised in the trial Court till 29-10-2005 when the case had come up for arguments and in her application submitted on that day Rule 15, High Court Rules, which has absolutely no bearing on the question of jurisdiction was depended upon to support her objection. Even in this Court in ground No. 12 of the appeal, it has been stated.

the Plaintiffs suit being for possession the Court-fee was payable u/s 7(v) according to the market value and jurisdiction determined accordingly. The suit was thus beyond the pecuniary jurisdiction of the trial Court.

It would appear that the Appellant has not been taking a correct or constant stand. In her own appeal the value for purposes of jurisdiction has been given by Mt. Devki to be Rs. 8,000. Moreover, para. 29, Patiala Civil Courts Act, 2001, itself lays down that an objection that by reason of the under-valuation of a suit the Court of first instance which had no jurisdiction with respect to the suit exercised jurisdiction with respect to it, shall not be entertained by the appellate Court unless the objection was taken in the Court of first instance at or before the hearing at which the issues were first framed and recorded. As mentioned above, the objection in this case was takan up not in the written statement or before the framing of the issues but at the time of arguments. We have further no reason to suppose and no such reason has been pointed cut by the counsel of the Appellant, that the under-valuation of the suit has prejudicially affected its disposal on its merits. In Vedaji Baskara v. Subramania AIR 1920 Mad. 843 : 52 I.C. 992 following Govinda Menon v. Karuna Kara Menon 24 Mad. 43, it was held that in cases of under-valuation, the appellate Court should not interfere with the decision given by the lower Court on the merits unless the disposal of the suit has been prejudicially affected, and in Jaswant Ram v. Moti Ram AIR 1926 Lah. 376 : 7 Lah. 570 FB it was held that in a suit for the redemption of immovable property the value for purposes of jurisdiction is the amount found by the Court to be the value of the mortgagee''s charge on the property to be due to the mortgagee. For the reasons given above the objection of Mr. Nehra regarding jurisdiction must fail.

This brings us to the question of the destruction of the Plaintiff''s right to redeem in view of the existence of the foreclosure clause in the deed of mortgage dated 1-5-1951 Bk. The factum and conditions of the mortgage are admitted by the Defendants but the Plaintiff''s right to redeem is denied and so also is his (sic) to gat possession of the property without paying anything to the mortgagee. The Hidayat sanctioned by the Ijlas-i-Khas and issued by the Saddar Adalat Diwani, Patiala in 1922, a copy of which has been placed on the record is referred to for maintaining that the plainiff''s title in the property in dispute was extinguished at the end of the four years prescribed for redemption. The original Hidayat is confronted in Register No. 16 of Hidayat Bandobast for the years 1918-1934 Bk. maintained in the record office of the Saddar Mal Patiala. These Hidyats as the opening words show "Hidayat mutalqa bandobast guzashta jismen hidayaten panchai wa intqal shamil hain," relate to the year 1918-1934 and govern only. lands and panchai. Houses and shop property are outside their purview. The counsel of the Appellant has cited 1 Patiala 504 in which a shop was the subject of dispute and the applicability of the Hidayat of 1922 was urged. In that case the objection that the ambit of the Hidayt was not wide enough to include houses and shops was not advanced or decided and that case cannot, therefore, have any persuasive value as the learned Counsel wishes to put on it. Even if the said Hidayat be taken to be still in force which is doubtful on account of its being superseded by the CPC adopted mutatis mutandis in the Union, Clause 2 of it provides that the mortgagee will hold the mortgaged property if after the expiry of the period within which redemption can be claimed by the mortgagor he (mortgages) makes an application asking the Court to terminate the mortgage This clause further contemplates that on receiving such an application the Court must send a notice of it to the mortgagor and if the mortgagee''s claim is not denied, the Court would make as order declaring him to be a ''Qabiz Mustaqll''. If the mortgagor denies the right of the mortgagee, Clause 3 of the Hidayat would come in and the mortgagee would be directed to bring a regular suit. In the present case, the mortgagor came into Court for redemption before the mortgagee claimed foreclosure. It is admitted by the Appellant that no application under the Hidayat was made by the mortgagee or his transferees prior to 24-1-2001, which makes it evident that the original mortgagee did not at all exercise his right to foreclose although such a right had already accrued to him on 1-5 1950. Zakir Hussain succes or of Nazir Hussain even did not make any application for foreclosure foe 37 years till he sold his mortgagee rights to Mt Devki. In the deed of transfer dated 8-10-1988 it was specifically mentioned by him that he held the shop in mortgage from Ganesh Dass and he thereby obviously admitted that the mortgage still subsisted and was redeemable on that date. In the dead of sale of the mortgagee rights executed by Zakir Hussain on 8-10-1988 the following pertinent lines are found mentioned.

Ab mera koi taluq kukanat murhoona se nahi reha, agar asal malik waguzar karna chahe to bad adaigi mutala munkil lah kara sakla hai.

They significantly recognise and acknowledge the right of the mertgagor to redeem the property. Mt. Devki who stepped into the shoes of Zakir Hussain cannot now deny the mortgagor''s right of redemption. The Hidayat itself prescribes that in case the mortgagor resists the mortgagee''s right to become a ''kabiz mustaqil'', the Court has no other alternative but to direct the mortgagee to file a regular suit. The remedy of the mortgagee in that case is not by an appeal or revision but by a suit, which has not been done. If Zakir Hussain had become the owner of the shops by operation of the foreclosure clause he would have sold the shops to Mt. Devki outright and not his mortgagee rights only. There is Anr. aspect of the matter in the light of which also the application for foreclosure must fail. In her application dated 24-4-2004, Mt. Devki had arrayed Devi Dass only as Defendant and had not impleaded Sham Lal or Nikku Mal either as applicants or Defendants. Sham Lal who is the transferee of Zakir Hussain with respect to the fourth shop did not come forward with any prayer for foreclosure. It is, therefore, manifest that Devki claimed foreclosure only regarding the shops concerning which Zakir Hussain had transferred his mortgagee rights to her. The application was thus for a part of the mortgaged property which the law does not countenance, The principle is now well recognised, that in the absence of any contract to that effect the mortgage cannot be split up and so cannot the right to foreclose. Mr. Nehra has failed to cite any authority where a mortgagee in whose favour a foreclosure clause has been incorporated in the deed of mortgage has been held; entitled to ask for piecemeal or partial foreclosure. A person who is one of the mortgagees and is interested in a part only of the mortgage money cannot claim foreclosure relating to corresponding part of the mortgaged property unless all the mortgagees had separated their interests in the mortgaged property with the consent of the mortgagor. As the mortgage itself was indivisible, the right to enforce it must also be regarded to bear that character....

Now comes the question as to what is due to the mortgagee in the light of the terms on which the mortgagee was effected. It is common ground that there has been no accounting between the parties since 1-5-1951 Bk. Mt. Devki had not produced any accounts till 30-6-2005 when for the first time, an attempt was made to introduce a Chaupata alleged to contain some entries showing receipt of rents through her son Johri Lal who was produced as a witness, but as it had been produced at a very late stage, the Court refused to admit it in evidence. We have seen that Chaupata which embodies about twenty irregular entries on a couple of opening pages, the rest being blank. The name of the scribe of the entries is not given on it and there is no other material with which the truth or correctness of these entries can be scrutinised. This Chaupata throws no light regarding the receipts and expenditure for the period 1951-1993 Bk. After nine months the appeal in this Court had been filed, the Appellant put in an application under Order 41, Rule 27, Code of Civil Procedure, seeking permission to produce and prove a loose sheet alleged to contain a statement of account and some deeds relating to rent of two shops in Katra Nauhrian from 1883 to 1993 and from 1998 to 2004 in respect of the third shop near Qila Mubark. An affidavit to explain the delay in producing these documents was also furnished and it was alleged in it that they were with the Appellant''s son Gora Lal who had met with an accidental death on Namani, 2004, by a bomb explosion. This affidavit appears to us to be false as Johari Lal the other son of the Appellant who is older than Gora Lal has stated that he had been keeping accounts for his mother and that before him Daulat Ram an employee of their father used to keep them. The accounts that Johari Lal intended to produce before the Court were those that were according to him given in the Chaupata, the genuineness of which is extremely doubtful. The loose Khaki piece of paper is neither dated nor signed by anybody, nor is it supported by receipts or vouchers. It does not disclose as to from which book the entries were carried. The rent deeds can by no means be a complete account of the expenditure and income. For the reasons that these private documents were not produced at the proper stage and their authenticity is not above suspicion and they do not form a full statement of the account, we see no justification to admit them in evidence now. Moreover, they could be available to the Appellant earlier if diligence had been exercised. It is difficult to believe that for over two years after the death of Gora Lal who was living with her Mt. Devki could not find out these documents if actually they were entrusted to him or the accounts were maintained by him. One of the imperative liabilities of the mortgagee in possession as enunciated in Sub-clause (g) of Section 76, T.P. Act, is to keep clear, full and accurate accounts of all sums received and spent by him as mortgagee, and, at any time during the continuance of the mortgage, give the mortgagor, at his request and cost, true copies of such accounts and of the vouchers by which they are supported. It is undisputed that the possession of the mortgaged property which consisted of several tenements was with the mortgagee and this was in pursuance of the agreement permitting him to enjoy the usufruct till redemption or till the mortgage debt was not wiped off. The applicant has not produced any accounts and those that were offered to be produced so late were not clear or full. The reason for imposing the responsibility to keep accounts upon the mortgagee is obvious. If the mortgage is in the usufructuary form, he holds the property as a security for his debt and is in the position of a trustee receiving its income to be appropriated by him according to the terms of the mortgagee and he is liable and bound to keep accounts of the income and expenditure and to explain and to deliver them to the mortgagor when he redeems the security. During the continuance of the mortgage he receives rents and profits on behalf of the mortgagor by virtue of an express or implied agreement in that behalf, and he spends the money so received whenever necessary or agreed, on behalf of the mortgagor. From these rights and obligations of the mortgagee, it necessarily follows that be must keep accounts and furnish details of income and expenditure to the mortgagor whenever he requires them provided he is ready to pay the costs of supplying copies of the accounts to him. This duty of the mortgagee is based on principles of equity and good conscience, for if it did not exist, it would be impossible for the mortgagor to assess or determine as to what would be due by him to the mortgagee at the time of redemption for which 60 years are prescribed by the Limitation Act. If the mortgagee had no objection to keep accounts he would in oases like the present be in a position of very great undue and dishonest advantage over the mortgagor for whom it would be more often than not, impossible to find out the amount spent or appropriated by the mortgagee during his possession of the property given to him as security. Except therefore where the rents and profits of the mortgaged property are to set off the principal or interest or such part of the principal or interest as has been stipulated to be reduced periodically, it is incumbent upon the mortgagee, to keep accounts and any delinquency on his part should expose him to the risk of every presumption being made against him including that the rents and profits received by him were not less than the interest that he claimed. In AIR 1928 223 (Nagpur) and Said Ahmad v. Partab Narain Singh AIR 1932 Oudh 255 : 8 Luck 40 it was held that where the mortgagee was guilty of gross or wilful neglect in keeping clear, full and accurate accounts it would be permissible to presume that both interest and the principal were satisfied from the usufruct. The Appellant as observed above has not produced any accounts worth the name what to say of their being clear, full or accurate and no reasons have been assigned for her failure to do so, particularly when she had two educated sons who could be entrusted with the work, We asked Mr. Nehra to specify the amount that he claimed in excess of the principal mortgage money, and he says that although he is entitled to mono under the contract of mortgage but he would ask only for Rs. 8000 more by way of interest, as he is cognizant that Section 30, Patiala Relief of Indebtedness Act (V [5] of 1999) forbids him from claiming more than twice the amount actually advanced. The wilful failure of the mortgagee legitimately gives rise to the inference that the income of the property had exceeded the stipulated interest. No decree for interest in these circumstances can be passed in favour of the Appellant. The onus of proving that the amount claimed by her was actually due from the Plaintiff was upon her which she has hopelessly failed to discharge. We, therefore, see no force in Mt. Devki''s appeal and dismiss it with costs.

This brings us to the appeal of Devi Dass Plaintiff. His counsel, Mr. Atma Ram, contends that the rents received by the mortgagee had been much more than the interest due to him and relying upon Angnu Ram v. Bhikhi AIR 1941 Oudh 84 : 191 I.C. 716 he urges that the presumption made permissible by the omission of the mortgagee to keep accounts should be pushed to the extent that even the principal mortgage money had been wiped off. To show that the income of the property for a number of years at least had exceeded its liability for interest, he has drawn our attention to the statements of Amar Nath P.W. 1, Atam Abhey Singh P.W. 2, Sant Ram P.W. 3 and Mim Chand D.W. 3. On 3-10-2005 Amar Nath stated that he was a tenant of one of the shops on Rs. 20 per month for the last three years. The statement of Sant Ram P.W. 3 which was recorded on 7-10-2005 proves that he is holding one shop at Rs. 12 per month since 1992-93 and that the chaubara of this shop is occupied by one Giani on Rs. 5 or Rs. 6 per month. Atam Abbey Singh P.W. 2 has proved that he is a tenant of the shop in chowk Qila Mubark since 2001 and that he has been paying Rs. 40 per month as rent. In 2001 he had paid Rs. 30 per month and in 2005 in addition to the monthly rent of Rs. 40 he had paid to Mt. Devki black money at the rate of Rs. 20 per mensum. Mim Chand D.W. 3''s statement shows that from 1st phagan, 2003 he is paying rent of his shops in katra Naubrian at the rate of Rs. 250 per annum. The evidence of these witnesses three of whom are tenants of Mt. Devki and the fourth of Sham Lal proves that income from the mortgaged property from the month of Phagan, 2003 has been Rs. 1174 per annum exclusive of the black market money received by Mt. Devki from Atam Abhey Singh. Mr. Atma Ram continuing his arguments has stressed that his income of Rs. 1174 per year should be taken to be the average income per year for the years preceding 2003 also. We are unable to accept this contention as in the absence of evidence, no penalising presumption can be pushed backwards. In Manmatha Nath Haldar and Another Vs. Girish Chandra Roy, it was hold by a Division Bench consisting of Mittar and McNair JJ. that the rule of evidence is in favour of presuming the continuity of things shown to exist at a prior date. There is no rule of evidence by which one can presume backwards. This view was followed in Hemendra Nath Roy Choudhury Vs. Jnanendra Prasanna Bhaduri and Others, In Lal Bahadur v. Murli Dhar AIR 1924 Oudh 92 : 27 O.C. 250 it was laid down by Wazir Hussain and Simpson JJ. that the default of the mortgagee in keeping or producing the necessary account does not, necessarily raise the presumption that the whole of the mortgage money has been wiped off by the receipts of rents and profits of the mortgaged property and that presumptions even in ''odium spoliatoris'' have known reasonable limits. In the case under examination the evidence examined by the Plaintiff proves that the mortgagee has been receiving Rs. 1174 as rent from 1st Phagan, 2003. The Appellant has not led any evidence to rebut the statement of her own tenants. The rent deeds executed by them are in her possession. The income from the property has been thus Rs. 774 per annum more than the amount of interest that was agreed to be paid to the mortgagee and to this difference the Plaintiff is evidently entitled. We, therefore, accept Devi Das''s appeal without coats to this extent that out of the principal mortgage money of Rs. 8000 he would be entitled to deduct Rs. 774 per year from 1st Phagan 2003 till the Defendants deliver possession of the mortgaged property to him. So far as his appeal for costs of the suit is concerned, we are not inclined to think that the discretion of the trial Court in not burdening the Defendants with costs was arbitrarily exercised. Let the case be sent back to the Sub-Judge, 1st Class, Patiala, without unnecessary delay for proceeding with it from the stage the record was called up from his Court.

Campbelpuri, J.

I entirely agree.