RAJBIR SINGH Vs. MEHAR SINGH

JUDGEMENT

(1.) Plaintiff/appellant-Rajbir Singh is in regular second appeal against the concurrent findings recorded by both the courts below whereby the application of the defendant Mehar Singh Under Order 7 Rule 11 CPC for rejection of the plaint was allowed and the plaint was rejected on the ground that no cause of action has arisen in favour of the plaintiff.

(2.) Facts in brief are that defendant Mehar Singh executed a registered mortgage deed dated 4.6.2002 in respect of 4 Kanal o land fully described in the plaint in favour of plaintiff Rajbir Singh for a consideration amount of Rs.1,25,000/-. It was agreed that after the mortgagor fails to get the land redeemed within one year on payment of the principle amount along with interest, then the mortgagee shall have to get the sale deed effected. Since the said agricultural land was not redeemed within one year, plaintiff Rajbir Singh gave a notice dated 1.7.2003 recalling the mortgagor to redeem the land. Since the required was not done by the mortgagor , the appellant/plaintiff filed the present suit for foreclosure wherein the defendant Mehar Singh filed an application Under Order 7 Rule 11 CPC for rejection of plaint on the ground that the plaintiff had not first invoked the statutory procedure laid down under Sections 7 & 8 of Provision of The Bengal Land(Redemption and Foreclosure)Regulations 1806(for short the Regulations) as admittedly applicable to Haryana.

(3.) The learned trial Court acknowledged the applicability of the mandatory provisions of the procedure laid down under Section 7 & 8 of the Regulations and held that the mortgagee was bound to file a petition before the learned District Judge, Gurgaon under Section 8 of the Regulations only after that he could file the present suit, in view of the present mortgagee being in the form of a mortgage by conditional sale. It was also noticed that in the plaint it was nowhere stated that the procedure as enshrined under Section 7 & 8 of the Regulations had been followed. Thus the learned trial Court rejected the plaint as no cause of action was held to have arisen.