Smt. Rampiari and Others vs Collector, Sub Division and Others

V.K. Bali, J.—This order will dispose of Civil Writ Petition Nos. 9251 of 1992 and 9252 of 1992 as common question of law and fact are involved therein. The facts have, however, been extracted from C.W.P. No. 9251 of 1992, Smt. Ram Piari v. Collector etc. As to whether a just, rightful and meritorious cause can be defeated on mere technicalities which have nothing to do with the merit of the case, is the question that has been posed in the present writ. The facts of the case need to be noticed first.

Petitioners mortgaged their land in favour of Dalip Kaur in the year 1967 for a consideration of Rs. 30,000/-. Dalip Kaur further mortgaged her mortgagee rights in favour of Darshan Singh and Sardool Singh, who further mortgaged their rights in favour of respondent Nos. 2 to 10, who were in possession of the land at the relevant time when application u/s 4 of the Redemption of Mortgage Act, 1913 was filed before the Collector. The application aforesaid was filed on February 28, 1988 well within stipulated period demanding redemption as the statutory period of 30 years for closure of the redemption by aflux of time had since not expired. The fact that the mortgage money was deposited in the Court and that too by an order of the Court vide challan receipt, has not been disputed. However, the case was adjourned from time to time and both the parties led their evidence to prove their contentions. When the case was ripe for arguments in the month of September, 1991. respondent No. 7 Sudesh Kumar filed an application before the Collector, Abohar for dismissal of the redemption application for non-compliance of mandatory provisions of Section 4 of the Redemption of Mortgage Act, 1913, (here-in-after referred to as the Act of 1913). It is pleaded that the Collector-without going into the merits of the case, passed order Annexure P-4 rejecting the application on the sole ground that it did not contain proper verification as envisaged under the provisions of Section 4 of the Act of 1913. It is this order which has been challenged in the present writ filed on behalf of Ram Piari and others.

The matter has been contested and in the written statement filed on behalf of respondent No. 7 it has been pleaded that the provisions of Section 4 of the Act of 1913 are mandatory, non compliance whereof had necessarily to result in rejection of the application filed u/s 4 of the Act.

After hearing the learned counsel for the parties and going through the records of the case, I am of the considered view that cause of petitioners has been scuttled on wholly illegal grounds. The procedural law, as has been held by the apex Court as also by this Court, is a hand made of justice and should not come in the way of doing justice. Keeping that principle in view it has to be examined as to whether the verification of the plaint either under the provisions of Order 6 Rule 14 and 15 of the CPC or u/s 4 of the Act of 1913 could lead to such drastic results as the petitioners have been met with in this case. Insofar as the application for redemption is concerned, it is complete in all respects. As to on what original amount the land was initially mortgaged as also on what amount the mortgagees sold their rights, has been specifically mentioned in the application. The amount to be paid to the mortgagees can, thus be clearly calculated from the contents of the application and in pursuance of this application alone, the Collector ordered to pay the amount which has admittedly been paid and still lying deposited in the Court of the Collector. It is true that all the pleadings in petition/plaint/written statement etc. have to be verified in accordance with Order 6 Rules 14 and 15 of the CPC and when the matter is under the Redemption of Mortgage Act, the same have to be verified u/s 4 of the Act but the question, as referred to above, is as to whether the plaint/application should be rejected if the same is not properly verified or the plaintiff concerned has to be given a chance to correct the verification so that his rightful claim is not defeated on technical grounds. Mr. Chopra, learned counsel for petitioners places reliance upon a judgment of Supreme Court in M/s Malhotra Steel Syndicate v. M/s. Punjab Chemi Plants Ltd. (1992) 102 P.L.R. 545 as also a judgment of Himachal Pradesh High Court delivered by the then Hon''ble Chief Justice Mr. R.S. Pathak in Karam Singh Vs. Ram Rachhpal Singh and Others, to contend that even if there is a slight defect or irregularity in the filing of a petition or application, as the case may be, qua its verification, a party has to be given an opportunity to rectify the same.

Mr. Khunger, learned counsel for the respondents relies upon a Single Bench judgment of this Court in New India Assurance Co. v. Vijay Kumar and Ors. (1989) 96 P.L.R. 671 . The Supreme Court in Mis Malhotra Steel Syndicate''s case (supra) has held, "We have looked at the form and verification of the affidavit filed before the High Court in support of the application for winding-up. We are satisfied that the verification, on a proper and liberal construction, does contain an averment to the effect that the statements made in the affidavit are true and correct to the knowledge of the'' appellant. We do not think that the affidavit can be described as defective in any respect. But that apart, we are of the opinion that even if there is some slight defect or irregularity in the filing of the affidavit, the appellant should have been given an opportunity to rectify the same." In Karam Singh Vs. Ram Rachhpal Singh and Others, it was held, "The requirement in Rules 14 and 15 that a plaint should be signed and verified by a-party is purely procedural and the party can make good the deficiency at a later stage and, therefore, rejection of the plaint on the ground that it was not signed and verified by the plaintiff or his Mukhtiar but was signed by the plaintiffs pleader would not be valid and the proper course for the Court would be to give an opportunity to the plaintiff or his Mukhtiar to sign and verify the plaint."

Insofar as the judgment of this Court, reliance on which has been placed by learned counsel for respondent No. 7, is concerned, suffice it to say that the same was not approved by the Supreme Court.

For the reasons mentioned above, these petitions are allowed. Order Annexure P-4 is quashed and a direction is issued to the Collector to proceed with the matter by permitting the petitioners to amend the verification given in the application and dispose of this matter expeditiously and latest within three months from the date he receives this order. The petitions deserve to be allowed with costs quantified at Rs. 1000/- in each case.