MULKH RAJ Vs. BALWANT SINGH

JUDGEMENT

(1.) This is an appeal by he Plaintiffs against the decree of the Sub-Judge 1st class, Kapurthala dated 28-9-2005, dismissing their suit for the recovery of Rs. 5400 due on the basis of a simple mortgage in respect of two shops in Phagwara and one house in Kapurthala effected by the Defendant on 23-12-1990. The counsel for the Respondent relying upon Section 35, Sub-clause (2) of the Kapurthala State Statute Book has raised a preliminary objection that the appeal in this case does not lie to this Court but to the District Judge. Section 35 Sub-clause (2) provides that:

(2.) Coming to the merits, we are of the view that the order of the Sub-Judge dismissing the Plaintiffs' suit without recording evidence cannot be upheld. On 10-8-2005 when the record was received by the Sub. Judge from the Court of the District Judge, the parties were present and the Defendant had to be examined as a witness of the Plaintiff. As the presiding officer was engaged in disposing of other work, the case was adjourned to 4-9-2005 and the Defendant directed to appear on that date to give evidence. On 4-9-2005 the counsel of the Plaintiffs expressed that in addition to the Defendant he intended to put in more witnesses. The case was again adjourned on his request on payment of Rs. 5 as costs to enable him to bring his witnesses on 28-9-2005. On 28-9-2005, he stated that the Mukhtar of the Plaintiffs who was conducting the suit on their behalf had died and that he should be allowed time to communicate with them but this request was declined and the suit dismissed.

(3.) On going through the various preceding orders present on the record, we are constrained to remark that the learned Sub Judge passed the orders on 10-8-2005, 4-9-2005 and 28-9-2005 without adverting to the different stages which the suit had already seen. Seven issues that arose from the pleadings were framed on 29-12-2001 and the onus of proving all of them was cast upon the Defendant. Thereafter, the suit went on rocking between the District Judge and the High Court till an ex parte decree in favour of the Plaintiff was passed on 7-1-2005. On an application by the Defendant, the ex parte decree was set aside on 22-6-2005 subject to the payment of Rs. 50 as costs. The costs were paid on 1-8-2005 when a formal order of revival of the proceedings was made. After setting aside the ex parte decree on 1-8-2005 the District Judge transferred the case to the file of the Sub-Judge 1st class Kapurthala and directed the parties to appear in his Court on 10-8-2005. The previous orders were not looked into on 10-8-2005 and the Sub-Judge proceeded on the assumption that the Plaintiff was to lead evidence although the burden of proving the issues was upon the Defendant. The orders that followed on 4-9-2005 and 28-9-2005 were also made under that misconception. The ex parte decree having been set aside the Defendant was to lead evidence to discharge the onus of the issues 1 to 7. In view of what has been observed above the judgment of the learned Sub-Judge must be reversed. We, therefore, accept the appeal with costs and send the case back to the Sub-Judge 1st class Kapurthala for proceeding with it in accordance with law. As it is an old suit, it should be decided early. Parties through their counsel have been directed to appear before the Sub-Judge on 18th of Chait, 2006. Chopra, J.