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2012 DIGILAW 1857 (RAJ)

Ram Chandra v. Beniram

2012-08-29

VINEET KOTHARI

body2012
Hon'ble Dr. KOTHARI, J.—The present second appeal has been filed by the appellant-plaintiff (landlord), Ram Chandra S/o Motilal Nandwana against the defendant-tenant-respondent, Beniram S/o Keshuji Raiger, who is now represented by his legal representatives, and being aggrieved by the judgment and decree dated 26.08.2002 passed by learned lower appellate court of Additional District Judge No.2, Chittorgarh dismissing the first appeal of the plaintiff-landlord being Civil Appeal No.17/2001- Ram Chandra vs. Beniram and upholding the judgment and decree of learned trial court dated 05.10.2001 in Civil Suit No.51/93- Ram Chandra vs. Beniram, which suit was filed by the plaintiff-Ram Chandra seeking eviction on the grounds of arrears of rent and permanent injunction against the defendant in respect of suit premises, situated at Kapasan, District-Chittorgarh. The said suit premises initially was let-out to the defendant-tenant, Beniram for a period of six months on 15.09.1989 for monthly rent of Rs.380/- per month. 2. The plaintiff-landlord (appellant herein) came with a case that the defendant-tenant has paid rent only up to 15.04.1990 and as on 15.07.1991, the arrears of rent of Rs.5,700/- were due to be paid and thus there was a default of more than six months in payment of rent. The plaintiff-landlord also raised pleas regarding nuisance caused by the defendant-tenant-respondent. The defendant-tenant filed his written statement before the learned trial court, in which though he admitted that the premises was let-out to him on 15.09.1989 for a monthly rent of Rs.380/- but he stated that since in the month of October, 1990, the plaintiff-landlord had stopped his electricity power supply to the suit premises, therefore, the defendant-tenant stopped the payment of rent and defendant could secure his power connection through court's intervention on 22.01.1993 only; and he was doing business of tyre retreading in the said suit premises, which was let-out for commercial purposes only. In the special plea in the written statement, the defendant-tenant stated before the court below that on 9.11.1989, the plaintiffs. landlord had actually mortgaged the suit premises in favour of defendant-tenant and had executed a registered mortgage-deed and, therefore, the defendant was in possession of the suit premises as a mortgagee; and in lieu of interest payable by the landlord-mortgagor, rent payable by the tenant-mortgagee was adjusted and, therefore, there was no question of payment of any rent to the plaintiff-landlord and thus there was no default in payment of rent as claimed by the plaintiff-landlord. 3. The learned trial court below as per pleadings of the parties, framed as many as five issues with respect to the default in payment of rent and mortgage and after recording the evidence and taking the documentary evidence on record, partly decreed the suit on 05.10.2001 and while refusing the eviction decree, directed the defendant-tenant, Beniram not to block the entry of the plaintiff-landlord in the portion of the suit property through the entrance gate for having access to three rooms, latrine and bathroom in the said suit premises, which were in the possession of the plaintiff-landlord only. 4. Against the said judgment and decree of the learned trial court, the plaintiff-landlord preferred the first appeal before the learned Additional District Judge, No.2, Chittorgarh and that appeal was registered as Civil Appeal No.17/2001- Ram Chandra vs. Beniram, which appeal, however, came to be dismissed by the learned lower appellate court on 26.08.2002 and the decree of learned trial court dated 05.10.2001 was affirmed; and thus both the courts below held against the plaintiff-landlord that since suit premises was mortgaged by the plaintiff-landlord in favour of defendant-tenant on 03.11.1989 by registered mortgage-deed, the plaintiff was not entitled to the eviction decree as against the defendant-tenant on the ground of default in payment of rent as the plaintiff-landlord failed to redeem the said mortgage by re-payment of Rs.3,000/-, for which sum the said mortgage-deed (Ex.D/1) was executed by the plaintiff in favour of defendant-tenant. 5. Being aggrieved by the said concurrent decrees, the appellant-plaintiff, Ram Chandra has preferred the present second appeal before this Court on 25.11.2002. On 12.09.2007, a coordinate bench of this Court framed the following substantial question of law for consideration by this Court: - “Whether the findings of the learned courts below on Issue No.2, about the nature of possession of the defendant to be not that of a tenant but as a mortgagee, is perverse and contrary to the material on record specially the admissions contained in his statement as D.W.1, the document Ex.A/1, and other documents including Ex.11 etc?” 6. Mr. Mr. B.R. Mehta, learned counsel for the appellantplaintiff (landlord- Ram Chandra) urged that there was no mortgage actually created by the plaintiff- Ram Chandra in favour of defendant-tenant, Beniram and though the registered mortgage-deed (Ex.D/1) was executed by the plaintiff, Ram Chandra, which was even though registered on 04.11.1989, since the defendant-mortgagee, Beniram, failed to pay the stipulated sum of Rs.3,000/- to the mortgagor as the loan amount in question, the original mortgage-deed as such was returned back to the plaintiff- Ram Chandra and making a cancellation note to this effect on the original mortgage-deed itself on 15.11.1989 that since the mortgagee Beniram has not given the stipulated sum of Rs.3,000/-, the original document of the mortgage-deed is treated as cancelled and tenancy in favour of said alleged mortgagee, Beniram, would continue and with this note duly signed by the plaintiff, Ram Chandra on 15.11.1989 itself, the original mortgage-deed itself came to be produced from the possession of the plaintiff-appellant, Ram Chandra by him only, before the learned trial court through his advocate Mr. B.L. Jhanwar on 12.09.1995. Mr. B.R. Mehta, learned counsel for the plaintiff-appellant, Ram Chandra therefore, submitted that since the mortgage-deed stood cancelled, there was no change or alteration in the status of the defendant-tenant, Beniram from that of the tenant to that of a mortgagee and, thus the non-payment of rent throughout by him, certainly amounted to default in payment of rent, which attracted the eviction under the provisions of Rent Control Act, 1950. 7. Mr. B.R. Mehta, therefore, submitted that the courts below have wrongly held while dismissing the suit of the plaintifflandlord that once a mortgage has been created by the plaintifflandlord under a registered mortgage-deed, the defendant-mortgagee was not liable to pay rent for the suit premises in question. He further submitted that the plaintiff- Ram Chandra had approached the Court of learned Civil Judge (Jr. Division), Kapasan by way of Misc. Case No.13/03- Ram Chandra vs. Beniram under Section 83 of the Transfer of Property Act, 1882, (for brevity, hereinafter referred to as 'Act of 1882') in the year 2003 to put an end to the dispute about redemption of the mortgage and by tendering and depositing the payment of Rs.3,000/-, he prayed to the trial court or redemption of the said mortgage by summoning proceedings under Section 83 of the Act of 1882, but the learned Civil Judge (Jr. Division), Kapasan dismissed the application of the plaintiff-appellant under Section 83 of the Act of 1882 on 03.08.2006 merely on the ground that after the dismissal of the eviction suit filed by the plaintiff-landlord which was dismissed on 05.10.2001 and by the first appellate court also on 26.08.2002, he could not tender this amount of Rs.3,000/- on the condition that such tender is subject to final decision of his second appeal (the present CSA No.34/2003 pending in this Court) and, therefore, such conditional tender of money could not be accepted under Section 83 of the Act of 1882 and consequently his application was liable to be dismissed. 8. Mr. B.R. Mehta, further urged that the plaintiff- Ram Chandra took the matter further to this Court by way of revision petition being SB Civil Revision No.527/2006- Ram Chandra vs. LR's of Beniram, which too came to be dismissed by a coordinate bench of this Court on 12.01.2007 and the learned Single Judge held that there was no illegality in the impugned order dated 03.08.2006 passed by the learned Civil Judge (Jr. Division), Kapasan, u/s 83 of the Act of 1882 and the plaintiff can resort to remedy of filing regular mortgage redemption suit in respect of suit property. The relevant extract of the order of the coordinate bench of this Court in the order dated 12.01.2007 is quoted below for ready reference: “It appears from Section 83 of the Transfer of Property Act that that provision only gives an opportunity to the mortgagor to deposit of due amount in Court and in case, the mortgagee accepts the amount, then the court may pass appropriate order without asking the parties to file regular suit for redemption in a case where there is no dispute about the mortgage amount and the mortgagee is not disputing the rights of the mortgagor. This enabling provision is not substitute for a regular suit for redemption of mortgaged property. Section 83 clearly provides that the Court can pass an order only when the mortgagee is ready to accept the amount offered by the mortgagor and not otherwise. This enabling provision is not substitute for a regular suit for redemption of mortgaged property. Section 83 clearly provides that the Court can pass an order only when the mortgagee is ready to accept the amount offered by the mortgagor and not otherwise. The plaintiff's right even after dismissal of the application under Section 83 of the Transfer of Property Act remained intact and, therefore, after dismissal of the application of the mortgagor, the remedy available is to file suit for redemption of property wherein the dispute can be sorted out about actual mortgage consideration. In view of the above, I do not find any illegality in the impugned order. No ground is made out for interference of this Court under Section 115 CPC in such matter. Accordingly, this revision petition, having no merits, is hereby dismissed.” 9. Mr. B.R. Mehta, learned counsel for the plaintiffappellant, therefore, urged that even though there was no actual mortgage created by the plaintiff-landlord in favour of defendant-tenant, since the loan money in question of Rs.3,000/- was never paid by the defendant to the plaintiff-landlord and that is why the original mortgage-deed even though registered on 4.11.1989, was returned back as it is by him and in this respect a cancellation note was duly recorded by the plaintiff, Ram Chandra on the said mortgage-deed. The said original document was produced by the plaintiff-appellant himself before the learned trial court, still, unfortunately, the courts below ignoring the significant fact have dismissed the suit for eviction going on the premise that the said mortgage-deed, which mortgage actually never came into force created a mortgage in favour of defendant-tenant and he was not in default of payment of rent. 10. Mr. B.R. Mehta, also submitted that the dismissal of the application under Section 83 of the Act of 1882 by the learned Civil Judge (Jr. Division) Kapasan was also wrong because the defendant-tenant, Beniram took a false stand before the learned trial court that the sum due under the mortgage-deed was not Rs.3,000/-but was Rs.30,000/-; and since the money tendered and deposited by the appellant-plaintiff was not accepted by the defendant-mortgagee, Beniram, there was no question of redemption of the said mortgage by summary proceedings under Section 83 of the Act of 1882. He further submitted that the said stand taken by the defendant-tenant, Beniram that sum due under the mortgage-deed was Rs.30,000/- is not only contrary to the registered document on 04.11.1989 itself but ex-facie is false stand taken by the defendant, Beniram. The said stand was without any foundation since no corroborative evidence was produced by him before the learned trial court that sum actually advanced by him and due from Ram Chandra under the mortgage-deed was Rs.30,000/- and not Rs.3,000/- only. He, therefore, submitted that the plaintiff, Ram Chandra not only lost his eviction suit before the two courts below on the premises that said mortgage-deed, which really never existed in law, but its redemption upon his tender of amount of Rs.3,000/- under the said registered mortgage-deed, without prejudice to his rights to contest the eviction suit in the present second appeal before this Court, the application under Section 83 of the Act of 1882 wrongly came to be dismissed by the learned trial court. 11. Drawing attention of the Court towards para 12 of special pleas in the written statement filed by the defendant, Beniram, before the learned trial court, in the present eviction suit, Mr. B.R. Mehta, learned counsel for the plaintiff-appellant, Ram Chandra, submitted that the defendant, Beniram himself had clearly stated that the plaintiff had taken Rs.3,000/- (in words Rupees Three Thousand only) and executed the registered mortgage-deed in favour of defendant in respect of “Varanda” of the suit premises and, therefore, mentioning contrary pleas in his written statement before the learned trial court in the eviction suit and in proceedings under Section 83 of the Act of 1882 speaks volumes about his conduct. He also drew the attention of the Court towards statements of DW.1-Beniram dated 24.08.1999, in which he admitted the factum of execution of registered mortgage-deed for Rs.3,000/-, however, later on he also stated on an afterthought that the plaintiff actually took Rs.30,000/- from him. In his cross-examination, the DW.1 Beniram has averred that he actually gave Rs.30,000/-, however, the said fact was not disclosed by him earlier in the written statement. 12. In his cross-examination, the DW.1 Beniram has averred that he actually gave Rs.30,000/-, however, the said fact was not disclosed by him earlier in the written statement. 12. In the statement of PW.1 Ram Chandra (plaintiff) himself recorded by the learned trial court on 26.05.1998, the plaintiff has reiterated the averments made in the plaint of giving suit premises on rent on 15.09.1989 and the defendant-tenant has only paid rent for seven months only and thereafter committed default in payment of rent of more than six months. The plaintiff-landlord also produced Rent Note (Ex.1) and photocopy of the same as Ex.1-A, Ex.2 is the notice given by him to the defendant-tenant, Ex.3 is the AD receipt bearing signatures of Beniram from 'A' to 'B', Ex.4 is the reply to the notice and Ex.5 is the second notice and reply thereof is Ex.6. In the cross-examination, the said PW.1 Ram Chandra, the plaintiff himself also stated that the original mortgage-deed, which was registered on 04.11.1989 is with him because the defendant-tenant, Beniram failed to pay the loan money of Rs.3,000/-, which was supposed to be paid as the loan to the plaintiff, Ram Chandra, for which the said mortgage-deed was executed by him and upon such non-payment, the registered mortgage-deed itself was cancelled and a written note was appended thereon as aforesaid that the tenancy would continue in place of mortgage, and the said original document was filed by the plaintiff himself before the learned trial court. 13. Thus, Mr. B.R. Mehta, urged that the learned courts below have erred in dismissing the eviction suit filed by the appellant-plaintiff a landlord under the Rent Control Act, 1950, on the continuous defaults in payment of rent on a wholly unsustainable wrong premise and on the other hand, the learned court of Civil Judge (Jr. Division), Kapasan, also erred in rejecting the application of the plaintiff filed under Section 83 of the Act of 1882 reserving his rights to contest the present eviction suit by way of present second appeal before this Court, which could not be said to be a conditional deposit under Section 83 of the Transfer of Property Act, 1882. 14. On the other hand, Mr. 14. On the other hand, Mr. S.L. Jain, learned counsel appearing for respondent-defendant, Beniram, represented by his legal representatives now, urged that there was no question of payment of rent by the defendant-tenant in the present case, since a registered mortgage-deed was executed by the plaintiff himself on 03.11.1989 and this being a registered document, a presumption was rightly drawn by the learned courts below about such mortgage being in existence and, therefore, in the absence of any redemption of the mortgage by the plaintiff, Ram Chandra, or any regular suit filed by him for redemption of mortgage, as per liberty given to the plaintiff by this Court while dismissing his revision petition on 12.01.2007, the learned courts below have rightly refused the eviction treating the defendant, Beniram as a tenant in the suit premises under the Rent Control Act, 1950. As far as rejection of the application filed by the plaintiff-appellant, Ram Chandra, under Section 83 of the T.P. Act is concerned, Mr. S.L. Jain, learned counsel for the respondents-defendants urged that the said matter has attained finality with the dismissal of the revision petition filed by the plaintiff- Ram Chandra by this Court and, therefore, except taking recourse to the regular redemption of the mortgage suit, the plaintiff cannot say that rejection of application under Section 83 of the Act of 1882 was incorrect. He, therefore, submitted that the present second appeal deserves to be dismissed and the substantial question of law framed above,deserves to be answered against the appellant-plaintiff Ram Chandra and in favour of respondent-defendant, Beniram. 15. I have heard the learned counsel for the parties at length and perused the record, judgment of the learned trial court as well as of learned lower appellate court. 16. A piquant situation appears to have been created by the parties in the present case and the appellant-plaintiff (landlord) appears to be entangled in his own cobweb. A simple rent note creating a tenancy in favour of Beniram (defendant-tenant) on 15.09.1989 for the monthly rent of Rs.380/- for a period of six months on the ground of default in payment was not believed and eviction of tenant, Beniram was refused by the learned courts below on the ground of mortgage-deed executed by the plaintiff on 03.11.1989 and registered on 04.11.1989 in favour of defendant, Beniram, which is Ex.D/1 on record. The fact that the said original document was produced by the plaintiff-landlord, Ram Chandra through his counsel Mr. B.L. Jhanwar, Advocate before the learned trial court in the present eviction suit No.51/93- Ram Chandra vs. Beniram along-with Rent-Note (Ex.1) dated 15.09.1989 is not in dispute. 17. In the normal circumstances, if the suit property or portion thereof was actually mortgaged by the plaintiff-landlord, Ram Chandra in favour of defendant-tenant, Beniram, the original mortgage-deed executed in favour of defendant, Beniram, and duly registered, ought to have been in the possession of the mortgagee (defendant), Beniram, and only upon a redemption of such mortgage by repayment by mortgagor, Ram Chandra, the said document ought to have been returned back to the mortgagor-plaintiff, Ram Chandra herein. But, instead of such normal course of action, the original document with cancellation note and with a further stipulation that the tenancy continues in the absence of payment of advance or loan amount having been paid by the defendant Beniram (mortgagee) to the plaintiff, Ram Chandra (mortgagor), the said document is treated as cancelled and the tenancy of Beniram is to continue with the said endorsement signed by the plaintiff, Ram Chandra on 15.11.1989, the said original document has been admittedly produced by the plaintiff-appellant, Ram Chandra himself in the trial court on 12.9.1995. 18. The courts below have erred in not appreciating the importance of this significant fact. This disproves the theory of mortgage, taken as a defence by the defendant-tenant, Beniram in the present eviction suit. If the factum of mortgage is taken away from the narration of the defence of the defendant-tenant, Beniram in the present eviction suit, his entire case falls on the ground and in view of admitted default in payment of rent all through during the pendency of the suit, the eviction decree certainly could be passed against him. Taking the stand of the defendant, Beniram about the execution of the said mortgage-deed, this Court is of the opinion that the stand taken by the defendant-tenant, Beniram is unsustainable. Taking the stand of the defendant, Beniram about the execution of the said mortgage-deed, this Court is of the opinion that the stand taken by the defendant-tenant, Beniram is unsustainable. While he admits in his written statement that a mortgage-deed was executed and registered in his favour for Rs.3,000/-, the amount written in words also both in the mortgage deed as well as in the written statement, curiously, the said defendant, Beniram before the learned trial court in Section 83 of the T.P. Act takes a “U” turn and say that the sum due to him under the said mortgage-deed was not Rs.3,000/- but was Rs.30,000/- without producing any evidence to corroborate the said figure of Rs.30,000/- being the loan advanced by him to plaintiff, Ram Chandra, before the court below. 19. It appears that such a false stand was taken by the defendant, Beniram simply to frustrate the summary redemption proceedings under Section 83 of the Act of 1882, which permits summary redemption of the mortgage upon deposit of money mentioned in the mortgage-deed and acceptance thereof by the mortgagee, and upon such acceptance and handing-over the possession of the mortgaged property, the Court can pass appropriate orders for such redemption. The proceedings filed by the plaintiff-appellant, Ram Chandra under Section 83 of the Act of 1882 before the Court of Civil Judge (Jr. Division), Kapasan in the year 2003, only shows that even though actually there was no mortgage created in favour of defendant after dismissal of his eviction suit by the learned trial court on 05.10.2001 being Civil Suit No.51/93 and further dismissal of the first appeal by the first appellate court below on 26.08.2002, the plaintiff, Ram Chandra felt advised to square up that defence of tenant-Beniram by filing application under Section 83 of Transfer of Property Act, 1882, and redeeming the alleged mortgage, though none actually existed in law, to contest the present second appeal in eviction suit but the learned Civil Judge (Jr. Division), Kapasan dismissed the same after three years on 03.08.2006 and that order was upheld by a coordinate bench of this Court in revisional jurisdiction on 12.01.2007. Even though accepting the arguments of the learned counsel for the respondents-defendant, Mr. Division), Kapasan dismissed the same after three years on 03.08.2006 and that order was upheld by a coordinate bench of this Court in revisional jurisdiction on 12.01.2007. Even though accepting the arguments of the learned counsel for the respondents-defendant, Mr. S.L. Jain, for the sake of arguments that Section 83 proceedings having not been terminated in favour of the plaintiff-appellant, Ram Chandra for summary redemption, nonetheless, it does not prove in favour of defendant, Beniram that there was any mortgage actually created in favour of defendant, Beniram. 20. The return of the original registered mortgage-deed and later on produced by the plaintiff-appellant, Ram Chandra, before the learned trial court in the present eviction suit, coupled with the circumstances in which Section 83 proceedings were initiated by the plaintiff in the year 2003 after dismissal of his eviction suit by the two courts below, against which the present second appeal has been filed by him, on the other hand, deserves to be considered in favour of appellant-plaintiff-landlord that there was actually no such mortgage created in favour of defendant, Beniram and filing of proceedings under Section 83 of the Act of 1882 mentioning therein that he reserves his right to contest the eviction suit before this Court in the present second appeal, which was his legal right, does not make it a conditional deposit of mortgage money of Rs.3,000/- as stipulated in the registered mortgage-deed so as to attract the rejection of his application under Section 83 of the Act of 1882, but on the other hand, the defendant's stand to frustrate these proceedings that the money due to him was not Rs.3,000/- but was Rs.30,000/- was apparently contrary to the registered document itself and his own admission in para 12 of his written statement before the learned trial court clearly shows that the defence taken by the defendant-tenant, Beniram in the present eviction suit is absolutely false in this regard. 21. 21. The Hon'ble Supreme Court in the case of Nirmal Chandra vs. Vimal Chand reported in (2001) 5 SCC 51 , while deciding an appeal of the landlord, who executed a registered mortgage-deed in favour of tenant, held that there is no automatic merger of two rights where mortgage is executed in favour of tenant and on redemption of the mortgage, the tenancy rights kept in abeyance during the period of mortgage, would revive and entitle the tenant to continue in possession even after redemption of the mortgage, subject to eviction decree passed under Rent Control law viz. MP Accommodation Control Act. It is found useful to extract the relevant Head-Note from SCC reports here under for ready reference: - “The appellant landlord executed a registered mortgage deed in respect of a shop in favour of the tenant of the shop. The mortgage was for a sum of Rs.10,000 and was for 10 years. According to the terms and conditions of the mortgage the appellant was entitled to get the mortgage redeemed on expiry of ten years. Condition 1 of the mortgage deed lays down that the interest of the mortgage money and the rent of the shop would be equal. Condition 4 was as follows: “After the expiry of the period of ten years when I get the shop redeemed, I would use it for my own purpose for at least three years. After getting it redeemed, I would neither give it on rent nor keep any partner with me. In case it is given to someone on rent, the mortgagee shall have right to take back possession of the shop in his capacity as a tenant.” On completion of ten years the appellant requested the respondent to receive the mortgage money and redeem the mortgage and a notice is said to have been served on 6.12.1983 but it brought no results. Hence, he moved a petition under Section 83 of the Transfer of Property Act in the Court of a Civil Judge by depositing a sum of Rs.10,000 in the court. Though the respondent did not deny execution of the mortgage deed but he pleaded that he had been tenant of the shop since a long time and according to the conditions of the mortgage agreement, rent and the interest were agreed to be equal. Though the respondent did not deny execution of the mortgage deed but he pleaded that he had been tenant of the shop since a long time and according to the conditions of the mortgage agreement, rent and the interest were agreed to be equal. The delivery of possession on mortgage was only symbolic in nature and the respondent tenant, namely, the mortgagee continued to be in possession. The Court came to the conclusion that on redemption of a mortgage, the mortgagor is be handed over the possession of the property. The respondent then preferred a revision. Allowing the revision the High Court set aside the order of the trial court for handing over physical possession of the shop to the appellant. Dismissing the appeal, the Supreme Court Held: There is no automatic merger of two rights where mortgage is executed in favour of a tenant and on redemption of mortgage, the tenancy rights kept in abeyance would revive and entitle the tenant to continue in possession even after the redemption of the mortgage. On execution of mortgage, tenancy rights would terminate only if it is clear expressly or impliedly by conduct or other related circumstances that the parties had intended so which would be a question of fact. Thus as a normal rule except in intention being to the contrary, mortgage and lease operate independent of each other and on mortgage coming to an end by redemption, tenancy would revive. From Condition 1 it is clear that element of tenancy and payment of rent operated throughout the period of mortgage. It was not denied that during all this period, the tenant remained in actual possession. His status as a tenant never ceased as the amount of interest which he was entitled to on Rs.10,000 advanced to the mortgagor was adjusted towards rent payable by him as a tenant of the accommodation to the landlord. Where rent is kept alive, it runs contrary to the intention or conduct of the parties leading to any inference of surrender of lease. This fact alone is enough to hold that there was no merger of two rights nor could surrender of tenancy be inferred on the facts and circumstances or on the basis of terms and conditions of the mortgage. This condition nowhere speaks of surrender of tenancy by the lessee. This fact alone is enough to hold that there was no merger of two rights nor could surrender of tenancy be inferred on the facts and circumstances or on the basis of terms and conditions of the mortgage. This condition nowhere speaks of surrender of tenancy by the lessee. It only provides that for at least three years the shop will be in personal use of the landlord failing which there would be revivalof the mortgagee's capacity as a tenant. Such a condition cannot be said to be a clear intention of surrendering the lease rights in the property. Whatever little effect Condition 4 if at all may have, is negated by Condition 1 which kept the rent alive and the element of tenancy pervading throughout the period of mortgage. Moreover, in view of Section 12 of the M.P. Accommodation Control Act it was not possible to grant relief of possession of the tenanted premises to the landlord lessor. The said Act is a special enactment dealing with the subject of eviction of the tenants and as provided under Section 12 of the Act, notwithstanding any rule to the contrary contained in any other law or contract, no suit shall be filed in any civil court against a tenant for his eviction on the grounds enumerated therein. In this light of the matter if the tenant consented to hand over the possession and acts upon such consent, it would entirely be a different matter and whichever provision of the Act may then be applicable shall become operative but in case the possession is not handed ove there is no other way except to file a suit under Section 12 to bring about determination of the tenancy by a decree of the court on the grounds permissible under the provisions.” 22. This judgment is helpful to the plaintiff-landlord in the present case to the extent that the landlord here has sought eviction decree on the ground that there was no actual mortgage and the registered mortgage-deed was returned back by the tenantmortgagee himself as he failed to advance the loan amount of Rs.3,000/- as per the said mortgage-deed; and therefore, the status of tenant continued throughout as a “tenant” and not as a “mortgagee”. As such, in view of the admitted and continuous defaults in payment of rent tot he landlord, it would invite eviction under the Rajasthan Rent Control Act, 1950. But, since the courts below have wrongly refused the eviction decree to the landlord treating the mortgage as alive, albeit wrongly, the present appeal of the appellant-plaintiff-landlord deserves to be allowed by this Court on the strength of ratio of the Hon'ble Supreme Court decision in the aforesaid case of Nirmal Chand vs. Vimal Chand (supra). 23. The courts below, therefore, have apparently fallen into an error in dismissing the eviction suit on this wholly flimsy and untenable ground and the eviction decree deserved to be passed against the defendant-tenant in view of admitted and constant default in the payment of monthly rent of Rs.380/- throughout, the long period since 1990 till date. 24. Consequently, the present second appeal filed by the appellant-plaintiff-landlord is allowed. The substantial question of law framed above is answered in favour of appellant-plaintiff, Ram Chandra and the defendant, Beniram is accordingly directed to handover the possession of the suit premises to the plaintiff-appellantlandlord within six months from today, and he shall clear the arrears of mesne profit/rent @ Rs.380/- per month from May, 1990 till August, 2012 and shall pay mesne profit @ Rs.1000/- per month commencing from September, 2012 till handing over the vacant and peaceful possession of the suit premises to the plaintiff. The arrears of mesne profit shall be cleared within three months from today and the defendant-tenant will further continue to pay the mesne profits each month by 15th day of the next succeeding month or in advance to the appellant-plaintiff till the vacant possession is handed over to the appellant-plaintiff and in case there is any default in payment of mesne profit, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The defendants-tenant shall also clear all the arrears of the rent or mesne profit within three months from today, otherwise the amount shall bear interest @ 9% p.a. and the executing Court may quantify such amount and recover the same as a money decree from him or his estate. The defendants-tenant shall also clear all the arrears of the rent or mesne profit within three months from today, otherwise the amount shall bear interest @ 9% p.a. and the executing Court may quantify such amount and recover the same as a money decree from him or his estate. The defendants-tenant shall also not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same would be treated as void. The respondents-defendants-tenant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over or rent or mesne profits are not paid to the appellant-plaintiff/ landlord within a period of six months from today, besides expeditious execution of the decree in normal course, the appellant-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. Costs to be paid by defendant-respondent to the plaintiff, which is quantified at Rs.10,000/- Copy of this judgment be sent to both the courts below and both the parties concerned forthwith.