JADAVJI PURSHOTTAM Vs. DHAMI NAVNITBHAI AMARATLAL

JUDGEMENT

(1.) This appeal by certificate under Article 133 of the Constitution is directed against a judgment of the High Court of Gujarat in an appeal arising from the execution proceedings. The appellant is a tenant inducted to the ground floor of a building in Bhavnagar by a mortgagee in possession and the question for consideration is whether the mortgagors are entitled to dispossess him by reason of the redemption of the mortgage debt.

(2.) For a full and effective understanding of the issues involved in the case a maze of details have to be gone through and we will, therefore, advert ourselves to that task. In July 1947 Dhami Navnitbhai Amaratlal, the first respondent, acting for himself and his minor son mortgaged a house property with possession to a business firm known as Bhagwan Das Chagan Lal to secure repayment of a loan of Rs. 21,000/- The ground floor of the house was, however, already in the occupation of a tenant, Nandlal Hansji and hence the mortgagors endorsed the rent deed executed by Nandlal Hansji to the mortgagee for the remaining period of the lease. They also authorised by the moregagee to give on rent the house property to anyone. Under clause 10 of the mortgage deed it was provided that the mortgage could be redeemed whenever the mortgagors paid the mortgage amount and on redemption the mortgagee should return the title deeds and deliver possession of the mortgage property to the mortgagors. Notwithstanding the mortgage purporting to be a possessory mortgage, the mortgage deed provided for payment of interest and for the mortgagee to demand repayment of the mortgage amount at any time it deemed fit and if the demand was not met, to file a suit and bring the mortgage property for sale and also to proceed against the person and other items of properties of the mortgagors for recovery of the balance amount, if any, By a further mortgage deed dated 21-3-1950 the mortgagors obtained another loan of Rs. 16,000/- from the mortgagee on the same security.

(3.) The existing tenant Nandlal Hansji vacated the portion occupied by him on 12-11-1956. Thereafter the mortgagee inducted the appellant as a tenant of the ground floor for a period of one year from 3-12-56 to 2-12-57 on a monthly rent of Rs. 125/-. The lease deed, however, came to be executed only after one year, i.e., on 9-12-1957. On 13-7-1958 the mortgagee issued a notice to the appellant terminating the tenancy and calling upon him to surrender possession on the ground he had failed to pay the rent. The appellant did not surrender possession and instead filed Civil Misc. Application No. 40 of 1958 for fixation of standard rent. It is relevant to mention here that the Saurashtra Rent Control Act, 1951 governed the leases of buildings in Saurashtra region including Bhavnagar. The mortgagee filed Civil Suit No. 46 of 1958 against the appellant for recovering the arrears of rent and possession of the leased premises. On 13-4-60 the trial Court allowed the tenant's petition for fixation of standard rent and dismissed the mortgagee's suit for arrears of rent and possession. The trial Court fixed the standard rent at Rs. 52.10 as against the contractual rent of Rs. 125/-. The mortgagee filed successive appeals before the District Judge and the High Court against the judgments of the trial Court in the Standard Rent Petition and the suit for ejectment but failed in both the appeals before both the Appellate Courts.