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Rajasthan High Court · body

1999 DIGILAW 653 (RAJ)

Dwarka Lal v. Sri Gopal

1999-05-11

R.R.YADAV

body1999
Honble YADAV, J.–The present revision petition has been filed against the order dated 13.1.98 passed by the learned Additional District Judge No.3 Jodhpur in Civil Appeal No. 16/97 whereby the order dated 16.1.97 passed by the learned Civil Judge (Junior Division) Jodhpur City, Jodhpur in Civil Original Suit No. 257 of 1997 has been confirmed. (2). Brief facts which are necessary for just decision of the present revision petition are as follows:- (3). It is averred in the plaint filed by respondent No. 1 against the revisionists and other respondents No.2 to 9 for redemption of the mortgage and in the alternative for arrears of rent and ejectment. The defendants filed written statement denying execution of rent note by late Shri Hijulal Ji. The relationship of landlord and tenant has also been denied. The revisionists also denied execution of mortgage. As a matter of fact, the revisionists along with other respondents pleaded ownership of the disputed house and submitted documents of title. (4). The learned trial court after hearing the learned counsel for the plaintiffs and defendants provisionally determined the rent as envisaged under sub-sec.(3) of Sec. 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short `Act No.17 of 1950) on 16.1.97. (5). Aggrieved against the order passed by the learned trial court dated 16.1.97 provisionally determining the rent, the revisionists preferred an appeal before the learned District Judge, Jodhpur which was subsequently transferred to the court of learned Additional District Judge, No.3, Jodhpur. The learned Additional District Judge, No.3, Jodhpur dismissed the appeal and affirmed the order passed by the learned trial court as stated in the preceding paragraph of this order. (6). It is urged by learned counsel for the revisionists, Shri G.R. Singhvi that before determining the provisional rent within the meaning of sub-section (3) of Section 13 of Act No.17 of 1950 it is to be established that there is relationship of landlord and tenant. It is urged by Shri Singhvi that in view of the averments made in the plaint itself earlier a rent-note was executed between he plaintiff and defendant whereby a relationship of landlord and tenant came into existence. But, later on, on the same rent-note there is endorsement relating to the relationship of mortgagor and mortgagee. The revisionist has paid Rs. It is urged by Shri Singhvi that in view of the averments made in the plaint itself earlier a rent-note was executed between he plaintiff and defendant whereby a relationship of landlord and tenant came into existence. But, later on, on the same rent-note there is endorsement relating to the relationship of mortgagor and mortgagee. The revisionist has paid Rs. 125/- as consideration for the mortgage and he was in possession in lieu of the interest of that amount, therefore, he was not required to pay rent of the premises. In support of his contention he placed reliance on a decision rendered by the Supreme Court in Shah Mathura Das Magan Lal & Co. vs. Nagappa Shankarappa, reported in (1), wherein it was ruled that after mortgage was redeemed then, thereafter, no question of revival of tenancy right accrues. The plea of the tenant in the case of Shah Mathura Das (supra) to the effect that even after redemption, the tenant was entitled to retain possession because his previous tenancy right subsisted, although was acc- epted by the trial Court but it was refused by the learned District Judge in the first appeal and by the High Court in second appeal. When the aforesaid question of revival of tenancy was raised before the Supreme Court in case of Shah Mathura Das then, the then Honble Chief Justice A.N. Ray affirmed the view taken by the High Court and as such confirmed the decree passed by the High Court. (7). The aforesaid argument raised by learned counsel for the revisionist is refuted by Mr. M.R. Thanvi on the ground that from the averments of the plaint it is evident that the claim of redemption put forth by the plaintiff-landlord-non-petitioner is an alternative plea. The suit for eviction has been filed mainly on the basis of rent-note emanating the relationship of landlord and tenant between the revisio- nists and non-petitioner No.1. It is urged by Shri Thanvi that the landlord plaintiff is entitled to take inconsistent plea in his plaint. (8). I have given by thoughtful and anxious consideration to the rival contentions raised at the Bar. In my considered opinion, for determination of provisional rent within the meaning of sub- section (3) of Section 13 of Act No. 17 of 1950, prima facie, the relationship of landlord and tenant is required to exist. (8). I have given by thoughtful and anxious consideration to the rival contentions raised at the Bar. In my considered opinion, for determination of provisional rent within the meaning of sub- section (3) of Section 13 of Act No. 17 of 1950, prima facie, the relationship of landlord and tenant is required to exist. In view of the decision rendered by the Apex Court in the case of Shah Mathura Das (supra) it is to be held that the possession of the revisionists after execution of mortgage was only as a possessory-mortgagee and not as a tenant. It is held that in case the plaintiff succeeds to establish mortgage then after redemption of mortgage the plaintiff would be entitled to recover possession of the property forthwith. But, in case he fails to establish the relationship of mortgagor and mortgagee then of course, the learned trial Court is required to enquire into the relationship of land- lord and tenant. (9). Looking into the facts and circumstances of the present case in totality, in the light of the decision rendered by the Supreme Court in Shah Mathura Das (supra), after execution of the mortgage as alleged in the plaint the learned trial Court has committed jurisdictional error in passing the impugned order determin- ing the provisional rent within the meaning of sub-section (3) of Section 13 of the Act No. 17 of 1950 ignoring the averments made in the plaint relating to the relationship of mortgagor and mortgagee. The learned appellate Court has also committed manifest error of law in confirming the order of provisional determination of rent passed by the learned trial court. (10). Before concluding the discussion on the relationship of landlord and tenant and about applicability of the decision rendered by the Supreme Court in case of Shah Mathura Das (supra) it is to be noticed that in that case the relationship of mortgagor and mortgagee was admitted between the parties whereas in the present case it is being disputed between the parties. Hence the ratio of the deci- sion rendered by the Supreme Court in Shah Mathura Das (supra) is not squarely applicable to the facts and circumstances of the present case. As a matter of fact, its applicability can be extended if the plaintiff succeeds to establish the relationship of mortgagor and mortgagee. Hence the ratio of the deci- sion rendered by the Supreme Court in Shah Mathura Das (supra) is not squarely applicable to the facts and circumstances of the present case. As a matter of fact, its applicability can be extended if the plaintiff succeeds to establish the relationship of mortgagor and mortgagee. However, if the plaintiff fails to establish the relationship of mortgagor and mortgagee then the learned trial Court is required to examine the relationship of landlord and tenant as alleged in the plaint in the light of the averments made by the defendant in his written-statement in accordance with law. (11). The aforesaid exercise is possible in the present case without determining the provisional rent under Sub-sec. (3) of Sec. 13 of Act No. 17 of 1950. By adop- ting the aforesaid procedure equity and good conscience can be adjusted between the parties without causing any prejudice to any one of them. (12). As a result of the aforementioned discussion, the order passed by the learned trial Court dated 16.01.97 provisionally determining the rent under Sub-sec. (3) of Sec. 13 of Act No. 17 of 1950 and the order passed by the appellate Court on 13.01.1998 affirming the same are hereby set aside. The instant revision is allowed with the direction to the learned trial Court to decide the suit between the parties in accordance with law on merit expeditiously in the light of the observations made in the body of the order.