YAMIN, J. - (1.) THIS revision has been directed against the order of learned Additional District Judge, Gangapurcity dated 22. 12. 1999 by which he maintained the order of learned Civil Judge (Jr. Division), Gangapurcity dated 7. 5. 1999.
(2.) I have heard learned counsel for both the parties and have perused the material on record. First of all, application under Order 41 Rule 27 C. P. C. is to be decided which was presented on 28. 7. 2000 by the petitioner. The petitioner wants to bring certain documents on record. It has not been opposed by the learned counsel for the opposite parties. Since the suit is pending and the documents could have been submitted before the trial court, therefore, the documents could be submitted here even without such an application. They relate to the period prior to the execution of mortgage deed. This court in a catena of judgments held that such documents can be submitted without application under Order 41 Rule 27 C. P. C. There is no need to pass a formal order. The documents are taken on record. Before the controversy is resolved, it will be necessary to mention relevant facts. A civil suit was filed by the plaintiff/petitioner that he was a tenant for the last three or four years in a shop situated in Gangapurcity. Earlier the rent was Rs. 400/- per month, but, it was increased to Rs. 500/- per month w. e. f. 10. 11. 1997. The petitioner was carrying on his business in the shop under the name and style as B. S. Electrical. The defendants/respondents always desired to increase the rent and threatened for eviction in case the rent was not increased. Even on 5. 2. 1999, he was asked to vacate the shop. Then the petitioner was threatened to evict with the help of hooligans and further threatened that the electricity connection would be cut. Suit for injunction was filed. Along with it, an application for temporary injunction was submitted in which it was prayed that the defendants/respondents be bound down and not to evict the plaintiff petitioner without due process of law. The case of the defendant was that the plaintiff/petitioner was never his tenant and that on 10. 11. 1997, the shop was mortgaged with possession. A document was executed but on 18. 12. 1998, respondent No. 1 paid back the money and got the shop redeemed. The mortgage deed was returned, and thus, the shop was redeemed. The plaintiff had promised that he would hand over possession within 20 days. Plaintiffs' possession remained as licencee for 20 days which stood revoked after the period of 20 days expired. On 5. 3. 1999 and 14. 2. 1999 the plaintiff was asked to hand over vacant possession but he did not do so. Thus, he had not come to the Court with clean hands. A rejoinder was filed in which it was admitted that on 10. 11. 1997 the shop was mortgaged for Rs. 68,000/- and mortgage deed was executed. It was further averred that the plaintiff was in possession of the shop earlier even before the mortgage deed was executed and to that effect the documents submitted in this court have been shown to me. It was denied that the shop was in possession of the defendant as a licencee. The learned trial Court after hearing the parties held that the condition in the mortgage deed amounted to clog on redemption. It dismissed the petition under Order 39 Rule 1 CPC holding that the plaintiff had no prima facie to be a tenant. Appeal was filed in which the order of the learned Civil Judge dated 7. 5. 1999 was confirmed. Learned counsel for the petitioner/plaintiff submitted that after the shop was redeemed from mortgage, the possession of the defendant can be said to be a licencee and the licence stood revoked with effect of the date agreed. Therefore, he was entitled for possession of the shop. He also submitted that the trial Court as well as the appellate court committed error in holding that the condition in the rent note was a clog on redemption. Even if it was so, at this stage there was a prima facie case to be decided whether the condition amounted to clog on redemption or not. Therefore, when the trial court and the appellate court have held that the condition was a clog on redemption, it means that the plaintiff has been non-suited. It was submitted by the learned counsel for the respondent that Sec. 60 of the Transfer of Property Act provides rights and liabilities of a mortgagor and provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender at a proper time and place of the mortgage- money, to require the mortgagee (a) to deliver to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor, either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execue and where the mortgage has been effected by a registered instrument to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished. Provided that the right conferred by this section has not been extinguished by act of the parties or by decree of a Court. The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption. My attention was also drawn to Order XXXIV C. P. C. Rule 7 which provides for a preliminary decree in redemption suit and Rule 8 provides for final decree. Counsel for petitioner urged that the defendant instead of following the procedure given in Rule 8 wanted the possession of the property without due process of law.
(3.) IN this case the primary question was whether there existed relationship of a landlord and tenant between the parties. The document relied by the plaintiff was the same mortgage deed which mentions that even after redemption shop will remain in possession of the plaintiff and the rent of Rs. 500/- will be paid apart from the electricity charges. The trial court held that this was a clog on redemption and hence illegal and that no tenancy was created. This was rightly confirmed by the appellate Court. The case of the plaintiff was clearly stated even in the counter reply that suit was vague and that there existed no relationship of landlord and tenant and no rent receipt was given. It was further mentioned that another deed was executed on 18. 12. 1998 in the hand of Harish Vijayvargiya which was signed by respondent No. 1 Ramcharan and on 16. 1. 1999 the total amount was paid. It was promised that possession would be handed over within 20 days but the same was not given. Learned counsel for the petitioner Mr. Maloo relied on the decision in case of Pomal Kanji Govindji and others etc. vs. Vrajlal Karsandas Purohit and Others (1), and submitted that whether or not in a particular transaction there is a clog on the equity of redemption, depends primarily upon the period of redemption on so many circumstances enumerated in the citation. He further submitted that in view of decision in Prithi Nath Singh and Others vs. Suraj Ahir and Others (2), the mortgagor can enforce his right to get back the mortgage document, the possession of the mortgaged property and the reconveyance of that property though court and not without following the due process of law. he also submitted that the courts below should not have expressed opinion about the document in view of the decision in case of Colgate Palmolive (India) Ltd. vs. Hindustan Lever Ltd. He also relied on the decision in case of Peer Gulam Naseer vs. Peer Gulam Jalanee (4), in which Rajasthan High Court expressed the view that the court should not decide finally the controversy raised in pleading by parties at the stage of deciding application for temporary injunction and when a serious question is raised in the case can be finally decided only after parties may have led the evidence. Shri Maloo submitted that in view of this decision the learned appellate court acted without jurisdiction in confirming the order of the learned Civil Judge, In case of Deepak Kaushal vs. Mohal Lal Sukhadia University, Udaipur and another (5), similar view was taken, Shri Maloo also relied on a decision in the case of Krishna Ram Mahele (dead) by his LRs. vs. Mrs. Shobha Venkat Rao (6), in which it was held that even if there is somebody holding the property as a licencee, he cannot be dispossessed in an unlawful manner before expiry of licence period. On the other hand, Shri S. K. Gupta learned counsel for the respondent relied on the decision in case of Gobind Ram and another vs. Rajphul Singh and others (7), and submitted that if a covenant is clearly a clog on redemption, the circumstance that mortgagor was or was not in an embrassing position is immaterial. Any fetter that after redemption the mortgagee should continue in possession as a tenant is a clog. The right of redemption is an inherent right and an condition that after redemption the mortgagee should continue in possession as a permanent tenant has been held to be valid in India. ;