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Rajasthan High Court · body

2000 DIGILAW 1201 (RAJ)

Kanta Devi v. Sampati Devi

2000-09-22

J.C.VERMA

body2000
Honble VERMA, J.–These three revision petitions have been preferred relating to the same parties and in regard to same dispute. (2). In revision petition No. 1393/99, the order dated 7.8.1999 passed by the Additional District Judge No.1, Jaipur City, Jaipur in case No. 65/97 has been challenged whereby the application moved under Order 6 Rule 17 CPC filed by the plaintiff respondent for amendment of plaint has been partly allowed. (3). In revision petition No. 371/2000, the order challenged is 16.3.2000 passed by the Additional District Judge No.1, Jaipur City, wherein the application under Order 6 Rule 16 and 17 CPC on the application dated 5.1.2000 moved in suit No. 65/97 has been partly allowed. (4). Revision petition No. 1234/99 has been directed against the order dated 15.7.1999 passed by the Additional District Judge No.1, Jaipur City, Jaipur whereby an application under Order 7 Rule 11 CPC filed by the defendant petitioner has been partly dismissed. (5). All the three revision petitions have been filed by the petitioner who is the defendant in the proceedings. (6). Revision petition No. 1393/99 was necessiated because of the subsequent facts alleging that the defendant, now the petitioner, had obtained an exparte decree dated 30.9.1996 and the tenant Prabhu Dayal who is said to have been inducted as the plaintiff have been dispossessed on 15.7.1998 and, therefore, amendment was moved to the effect that she is entitled to take back the possession. It was also pleaded that the property in question was under mortgage by Radhey Shyam defendant which mortgage money was to be paid by the defendant No.1 Kanta Devi, but the money stands paid now by the plaintiff on 31.7.1998 as per receipt No.1131 dated 31.7.1998. (7). The trial court had allowed the said amendment in the suit filed by the plaintiff because of the reason that it was the subsequent event occurred during the pendency of the civil suit. (8). Sampati Devi had filed a suit against Durga Devi and Radhey Shyam, respondent Nos. 2 and 3 for declaration and permanent injunction and in alternative redemption of mortgage dated 17.10.1984 alleging that she had purchased a shop bearing Municipal No. 304 (New No. 176) situated at Chowkari Purani Basti, Jaipur for a total consideration of Rs. 2,70,000/-vide registered sale deed dated 16.11.1995 from the defendant No.2 Durga Devi and had also obtained actual possession. 2 and 3 for declaration and permanent injunction and in alternative redemption of mortgage dated 17.10.1984 alleging that she had purchased a shop bearing Municipal No. 304 (New No. 176) situated at Chowkari Purani Basti, Jaipur for a total consideration of Rs. 2,70,000/-vide registered sale deed dated 16.11.1995 from the defendant No.2 Durga Devi and had also obtained actual possession. After such purchase and obtaining possession, the shop was given on lease to the tenant Prabhu Dayal. Case of Sampati Devi plaintiff was that she was bonafide purchaser for valuable consideration. It was further the case of the plaintiff that the defendant petitioner had malafidely got mortgage deed executed in her favour by Radhey Shyam and Radhey Shyam also executed rent note dated 1.10.1984 in favour of defendant petitioner Smt. Kanta Devi Agrawal. Said Kanta Devi Agrawal had filed a suit for eviction as well as arrears of rent against Radhey Shyam. Radhey Shyam did not contest the suit for eviction and exparte decree was passed on 30.9.1996 which was executed and Kanta Devi has taken the possession. It was alleged that the mortgaged amount was payable by Durga Devi, the earlier owner of the property and Radhey Shyam. The plaintiff who had purchased the property was entitled to safe-guard her interest and, therefore, a suit for permanent injunction and declaration was filed to the effect that they cannot be evicted in pursuance of the decree dated 30.9.1996. Relief for redemption was also prayed by the plaintiff. (9). During the pendency of the suit, an application under Order 6 Rule 17 CPC was filed for amendment of the plaint to the effect that the suit filed by the defendant petitioner for fore closure had been withdrawn by the defendant petitioner. The plaintiff had deposited the mortgage amount in the court and that Smt. Sampati Devi, the plaintiff, had been dispossessed on 15.7.1998 as per Courts order and after the order had been passed by the Court, Smt. Sampati Devi had also deposited the amount on her risk and even the so called arrears of rent which were being claimed by Radhey Shyam had also been deposited by the plaintiff. This amendment was opposed on the ground that it alters the cause of action and, therefore, application was not maintainable. (10). This amendment was opposed on the ground that it alters the cause of action and, therefore, application was not maintainable. (10). In revision petition No. 371/2000, the dispute in question related to the shop No. 304 situated at Chowkari Purani Basti, Jaipur City, Jaipur. Radhey Shyam had agreed to sell the property infavour of Smt. Durga Devi on 29.4.1980. Smt. Durga Devi had filed a suit for specific performance against Radhey Shyam. The civil court had decreed the suit exparte on 20.8.1987 and the sale-deed was got registered through the court on 5.12.1988 by Durga Devi. Said Durga Devi had sold the shop to Smt. Sampati Devi on 16.11.1995. (11). Smt. Kanta Devi, the petitioner, had filed a suit for eviction against Radhey Shyam stating therein that Radhey Shyam had conditionally mortgaged the shop as security for money lent to him by the petitioner. The suit was decreed on 30.9.1996. The defendant petitioner obtained the possession from the tenant Prabhu Dayal who was inducted by Sampati Devi as tenant in the shop. In the execution proceedings, the plaintiff had stated that she was the bonafide purchaser of the shop. Application for amendment was made in the suit filed by Sampati Devi under Order 6 Rule 16 and 17 CPC to incorporate certain facts which had come into being during the pendency of the suit. The application was partly allowed. In the application for amendment the plaintiff wanted to ommit certain parts of plaint and limit the plaint. The paras Nos. 12, 18, 19, 20, 21 and para Ka and Kha of the prayer was allowed to be deleted. (12). In revision petition No. 1234/99 on the facts as mentioned in the above-said revision petitions, the present petitioner defendant filed an application under Order 7 Rule 11 CPC stating therein that the plaintiff respondent had filed an objection petition in the execution alleging therein almost the same facts that the plaintiff respondent is a bonafide purchaser as she had purchased the disputed property after paying consideration and is entitled for possession of the disputed shop. Kanta Devi had taken possession of the disputed shop in the execution proceedings and, therefore, an application was moved that in view of Section 47 as well under Order 21 Rule 97, 99 and 101 CPC, the suit was not maintainable. The application had been dismissed and, therefore, the present revision petition has been filed. (13). Kanta Devi had taken possession of the disputed shop in the execution proceedings and, therefore, an application was moved that in view of Section 47 as well under Order 21 Rule 97, 99 and 101 CPC, the suit was not maintainable. The application had been dismissed and, therefore, the present revision petition has been filed. (13). While Kanta Devi was getting her decree executed against Radhey Shyam on which property Prabhu Dayal was inducted as tenant by Sampati Devi and having come to know of such execution application, Sampati had objected to the delivery of the possession in favour of Kanta Devi. It was stated by Smt. Sampati Devi that Radhey Shyam had sold this property to one Durga Devi and Durga Devi had lateron filed a suit for specific performance and had got a decree against Radhey Shyam and the sale-deed was executed through court in favour of Durga Devi. Lateron, such Durga Devi had sold this property to Sampati Devi. Even though the objections were filed opposing the delivery of possession, it was observed by the trial court that Smt. Sampati Devi had filed a separate suit for declaration and injunction. The court had observed that even though the matter could have been settled under Order 21 Rule 97, 99 and 101 CPC, but for the reason that Sampati Devi had also sought redemption of the mortgage and she had also deposited the amount, that matter of redemption could not have been decided in Execution proceedings and therefore, application under Order 7 Rule 11 was dismissed. (14). Vehemance of the argument of the learned counsel for the petitioner had been on the application under Order 7 Rule 11 CPC. The revision petitions are being opposed by the defendant Sampati Devi. From the facts mentioned above, the following events are high lighted. (15). Radhey Shyam, the original owner had agreed to sell the property in question to Durga Devi in the year 1982. (16). Radhey Shyam had borrowed some money from Kanta Devi in October, 1984 and mortgaged his shop to her and simultaneously executed a rent note in her favour. Radhey Shyam became mortgager tenant and Kanta Devi remained mortgagee landlord. (17). In 1987 Durga Devi filed a suit for specific performance of agreement dated 29.4.1980 against Radhey Shyam which was decreed. (18). Sale was registered on 5.12.1988 and thus Durga Devi had became the owner. (19). Radhey Shyam became mortgager tenant and Kanta Devi remained mortgagee landlord. (17). In 1987 Durga Devi filed a suit for specific performance of agreement dated 29.4.1980 against Radhey Shyam which was decreed. (18). Sale was registered on 5.12.1988 and thus Durga Devi had became the owner. (19). Durga Devi sold this property to Sampati Devi in November 1995 and said Sampati Devi had become the owner. (20). Sampati Devi had inducted a tenant in the shop in December 1995. (21). A parallel proceeding was also continuing by Kanta Devi. (22). Kanta Devi had brought a suit on 16.10.1985 for eviction on the ground of default in payment of arrears of rent. (23). Suit was not contested and exparte decree was passed in her favour in 1996. (24). Another suit for fore-closure the mortgage was filed on 11.1.1988 against Radhey Shyam impleading Durga Devi and Sampati Devi as defendant. (25). Kanta Devi withdrew her suit for fore-chosure. (26). Kanta Devi filed an application for execution in 1996 for executing a decree passed in her favour in the year 1996 against Radhey Shyam. (27) On acquiring knowledge of such execution Sampati Devi filed objections under Order 21 Rule 97 CPC for conducting an enquiry of the right to possess the property. The possession was delivered on 15.7.1998 to Kanta Devi. (28). Kanta Devi had deposited the decreetal amount i.e. arrears of rent in the executing court by the permission of the court itself, but still the possession was delivered. (29). It is the contention of the learned counsel for the respondent Samapti Devi that the scope of Order 7 Rule 11 CPC is very limited. It is the further contention of the learned counsel for the respondent that in no case the mortgagee can claim the right of eviction in the capacity of a landlord. (30). Counsel for the respondents rely on the decision in the case of Mahabir Prasad Singh vs. Jacks Aviation Pvt. Ltd. (1) on the proposition that the High Court should not interfere in the revision unless failure of justice or irreparable injury is apprehended. (31). In Sher Singh vs. Joint Director of Consolidation and others (2), it was held that erroneous decision on a question of fact or of law having no relation to question of jurisdiction of Subordinate Officer cannot be corrected in revision. (32). (31). In Sher Singh vs. Joint Director of Consolidation and others (2), it was held that erroneous decision on a question of fact or of law having no relation to question of jurisdiction of Subordinate Officer cannot be corrected in revision. (32). This court in the case of Mohan Lal Sukhadia University, Udaipur vs. Miss Priya Soloman (3), had held that the disputed question as to whether the suit is barred by limitation or not cannot be decided at the time of considering the application under Order 7 Rule 11 CPC. (33). In Shivdev Singh and another vs. Sucha Singh and another (4), it was held that the right of redemption is a statutory and legal right under S. 60 and cannot be extinguished by any agreement entered into at the time of the execution of the mortgage as part of the mortgage transaction. Any term included in mortgage deed having the effect of preventing or hampering redemption would be void and so was held in the case of Jayasingh Dnyanu Mhoprekar and another vs. Krishna Babaji Patil and another (5), wherein it was held that the right of redemption under a mortgage deed can come to an end only in a manner known to law. A mortgagee who has entered into possession of the mortgaged property under a mortgage will have to give up possession of the property when a suit for redemption is filed unless he is able to show that the right of redemption has come to an end. If a mortgagee by availing himself of his position as a mortgagee gains an advantage which would be in derogation of the right of a mortgagor, he has to hold the advantage so derived by him for the benefit of the mortgagor. (34). After hearing learned counsel for the parties and in view of the facts mentioned above, the matter is to be decided in the suit for redemption. Under Order 7 Rule 11 CPC, the suit can be rejected only on the grounds mentioned therein and in my opinion the order of the trial court in rejecting the application under Order 7 Rule 11 CPC cannot be held to be illegal. No jurisdictional error has been committed by the trial court. (35). Under Order 7 Rule 11 CPC, the suit can be rejected only on the grounds mentioned therein and in my opinion the order of the trial court in rejecting the application under Order 7 Rule 11 CPC cannot be held to be illegal. No jurisdictional error has been committed by the trial court. (35). Similarly, in other revision petitions in view of the changed circumstances, if an amendment has been allowed by incorporating the recovery and possession which cases of action was not available at the time of filing of the suit and by deleting certain paras at the instance of the plaintiff in the plaint, it cannot be said that any jurisdictional error has been committed by the trial court. (36). At the hearing of the case, counsel for the respondent had pointed out that this very petitioner had already filed as many as six revision petitions which were dismissed i.e. S.B. Civil Revision Petition No. 1672/98, S.B. Civil Revision Petition No. 1694/98, S.B. Civil Revision Petition No. 1688/98, and S.B. Civil Revision Petition No. 1678/98, all decided on 21.1.1999 and S.B. Civil Revision Petition No. 183/99 decided on 8.3.1999 and S.B. Civil Revision Petition No. 975/99 decided on 28.10.1998. (37). For the reasons mentioned above, I do not find any jurisdictional error committed by the trial court in any of the orders passed and challenged in the above said revision petitions. All the three revision petitions are dismissed with cost of Rs. 1000/-each in every revision petition.