- (1.) Rattan Singh, father of Harbans Singh plaintiff petitioner had mortgaged the shop in dispute with possession to Harnam Dass. After the death of Rattan Singh, Harbans Singh got the shop redeemed from the mortgage. During mortgage, Harnam Dass had given the shop on rent of Mangat Rai defendant-resident. Harbans Singh then filed a suit for possession against Mangat Rai on the ground that the mortgage having come to an end by redemption, he (Mangat Rai) had no right to remain in possession of the shop in dispute. Mangat Rai contested the suit and pleaded that the mortgage had taken place more than 30 years ago and the plaintiff-petitioner had no right to redeem the same.
(2.) The suit was filed on 1.5.1975 and the plaintiff-petitioner closed his evidence on 23.9.1976. The defendant-respondent did not produce any evidence and the case was adjourned for many a time. On 5.8.1977, the defendant-respondent filed an application for the amendment of his written statement. He wanted to add the following words in his written statement :- "The plaintiff had no subsisting title at the time of redemption as the mortgage took more than 30 years ago at the date of alleged redemption. The redemption is bogus and collusive on the part of this mortgagor and mortgagee only to evict the tenant i.e. defendant." The trial Sub-Judge allowed the amendment on payment of Rs. 75 as costs. Harbans Singh has filed this revision petition against the said order.
(3.) The learned counsel for the petitioner vehemently contended that the defendant-respondent admitted himself to be a tenant under the mortgagee and as such he had no right to challenge the factum of mortgage much less the transaction being bogus and collusive on the part the mortgagor or the mortgagee.;