RADHA MOHAN Vs. GIRDHARI SINGH

JUDGEMENT

(1.) THIS second appeal under Sec. 100 C.P.C. has been filed against the judgment and decree dt. 23.11.93 passed by Additional District Judge, Hindaun city in Appeal No. 109/1992 by which he partly accepted the appeal filed against the judgment and decree dt. 20.2.92 passed by Munsiff and Judicial Magistrate, I Class, Hindaun city in Civil Suit No. 35/1986. The short facts giving rise to this appeal are that plaintiff -respondent filed a suit for redemption of mortgage with the contention that suit property was mortgaged with the defendant -appellant for a sum of Rs. 2,500/ - on 1.4.78 and on the same day, suit premises were let out to the plaintiffs on Rs. 75/ - per month. In spite of notice property has not been redeemed, hence suit has been filed for redemption which was decreed by the Court below subject to payment of Rs. 12,100/ -. Appeal has been filed in which the decree has been modified to the extent that the appellant is only entitled for Rs. 6,400/ - as rate of interest is excessive, hence this appeal.

(2.) ON 20.4.2006, the appeal has been admitted on the following substantial questions of law:

(3.) QUESTIONS No. 1 and are inter -linked, hence are decided commonly. The contention of the appellant is that when rate of interest was agreed between the parties, it was not within the competence of the Court to reduce the rate of interest and in the facts and circumstances of the case, Rs. 75/ - per month cannot be said to be excessive. Ex. 1 is the mortgage deed which is silent on the point of interest. Per contra, a specific narration has been made in Ex. 1 that no rate of interest has been agreed between the parties and property has been rented to the mortgagor and rent deed Ex. A/1 has also been submitted in which rate of rent is Rs. 75/ - per month and first appellate Court has rightly held that Rs. 75/ - per month on the amount of Rs. 2,500/ - is excessive and in the name of rent, the excess interest has been claimed by the appellant. The findings of the Court below are based on sound reasoning and when interest has not been agreed between the parties, there was no question of saying that the Court was not having any right to reduce the rate of interest which is agreed between the parties but looking to the fact that in the garb of rent, interest is being charged excessive, it has been rightly reduced. No perversity could be pointed out in this regard. Hence questions No. 1 and 2 are answered against the appellant. As regards question No. 3, the contention of the appellant is that suit for ejectment and arrears of rent is also pending and present suit and suit for ejectment should have been decided simultaneously but to the utter surprise of this Court, no such plea has been taken by the appellant before the trial Court or even in appeal and during the course of arguments, the counsel for the appellant could not state the present status of the suit for ejectment. When no specific prayer has been made by the appellant for consolidation of the present suit with suit for ejectment, this plea cannot be raised first time in this second appeal and in view of the above, this question is also answered against the appellant.