Smt. Chhindo vs Manjit Kaur and others

Rajesh Bindal, J.—Challenge in the present petition is to the order dated 14.6.2010, passed by the learned lower appellate court, whereby the application filed by the petitioner for condonation of delay in filing the appeal, was dismissed and consequently the appeal was also dismissed. Briefly, the facts of the case are that husband of the petitioner, namely, deceased-Dula Singh mortgaged land measuring 33 kanals and 18 marlas in favour of Jagjit Singh son of Gurbax Singh, predecessor-in-interest of the respondents, for a consideration of Rs. 9,000/- for a period of eight years vide registered mortgaged deed dated 9.7.1979. The period of mortgage was to end on 9.7.1987. Husband of the petitioner expired in 1981. It is claimed that after his death, the petitioner continuously requested the predecessor-in-interest of the respondents to redeem the mortgage but they refused. An application was filed by the petitioner u/s 4 of the Redemption of Mortgages (Punjab) Act, 1913 (for short, "the Act") before Assistant Collector, 1st Grade, Ajnala. The amount of Rs. 9,000/- was deposited on 14.3.2003. The application filed by the petitioner was accepted by Assistant Collector, 1st Grade vide order dated 23.12.2003. It was challenged by the respondents by filing a suit u/s 12 of the Act. The same was decreed on 30.11.2007 and the order passed by Assistant Collector, 1st Grade dated 23.12.2003 was set aside. The aforesaid order was challenged by the petitioner before the learned lower appellate court. As there was delay in filing the appeal, an application seeking condonation of delay thereof was also filed. It is the said order passed by the learned lower appellate court dismissing the application for condonation of delay of about 7-1/2 months in filing the appeal, which has been impugned before this court.

Learned counsel for the petitioner submitted that the suit filed by the respondents was decreed by the trial court while setting aside the order dated 23.12.2003 passed by Assistant Collector, 1st Grade on the ground that all the legal heirs of deceased-Jagjit Singh, the mortgagee, were not impleaded in the proceedings before Assistant Collector, 1st Grade. While decreeing the suit, opportunity was granted to the petitioner to file fresh petition by impleading all the legal heirs. He submitted that all the legal heirs of deceased-Jagjit Singh are living together. Even if any one of them had not been impleaded as party, he did not have any individual right. The right to all the legal heirs was flowing from their deceased predecessor-in-interest. No objection thereto was raised when the matter was pending before Assistant Collector, 1st Grade. In fact, the whole object of the respondents is to delay the process as they are in possession of the property since 1979. The mortgage amount had also been deposited by the petitioner before Assistant Collector, 1st Grade on 14.3.2003 which is still lying there. The petitioner being illiterate widow was not well-guided to enable her to avail of appropriate remedies at appropriate time. This is the only property left by her late husband. The prayer is for condonation of delay in filing the appeal.

On the other hand, learned counsel for the respondents submitted that in the application filed by the petitioner seeking condonation of delay in filing the appeal before the learned lower appellate court, no ground was mentioned which could enable the learned court below to condone the huge delay of 7-1/2 months in filing the appeal. In view of that fact, no illegality has been committed by the learned court below in dismissing the appeal.

Heard learned counsel for the parties and perused the paper book.

As far as liberty given by the learned trial court to the petitioner to file a fresh petition before Assistant Collector, 1st Grade, Ajnala by impleading all the legal heirs of deceased-Jagjit Singh is concerned, Section 13 of the Act clearly debars any further petition under the Act by the same petitioner or his representative in respect of the same mortgage, in case the earlier one had been dismissed. In the present case, once the suit filed by the respondents challenged the order passed by the Assistant Collector, 1st Grade was decreed, the petition was ultimately dismissed, hence to state that a fresh petition could be filed is not correct.

As is evident from the facts of the present case, though the petition filed by the petitioner for redemption of mortgage was allowed by Assistant Collector, 1st Grade on 23.12.2003 after the petitioner had already deposited the mortgage amount of Rs. 9,000/- on 14.3.2003, however, the order was challenged by the respondents by filing a suit which was decreed only on the technical ground that all the legal heirs had not been impleaded. Though the petitioner filed appeal but the same was belated. The ground taken by the petitioner is that she being illiterate widow was not guided to avail of appropriate remedy at appropriate time. The petitioner is a rustic villager, widow and illiterate. Considering the totality of circumstances, in my opinion, the prayer made by the petitioner deserves to be granted, but still the fact remains that the technical objection sought to be raised by the respondents will have to be removed and ultimately the Assistant Collector, 1st Grade is to determine the issue after the petitioner removes the objection regarding non-impleadment of alt the legal heirs in the proceedings before Assistant Collector, 1st Grade.

Accordingly, while setting aside the order dated 14.6.2010 passed by the learned lower appellate court and order dated 30.11.2007, passed by the learned trial court, the matter is remitted back to the Assistant Collector, 1st Grade, Ajnala for fresh consideration after affording opportunity to the petitioner to implead all the legal heirs of deceased-Jagjit Singh in the petition for redemption of mortgage filed by her. The parties through their counsels are directed to appear before Assistant Collector, 1st Grade, Ajnala on 16.4.2012. The petition stands disposed of.