RAMESH KUMAR Vs. YASHPAL BATRA

JUDGEMENT

(1.) Appellants herein have filed CS (OS) No.2006 of 2003 on the Original Side of this Court whereby suit for declaration, the consequential relief of possession, recovery of damages, mesne profit and permanent injuction were prayed for. To tell in brief, the case of the appellant was that one Mr. Ram Dhan Batra owned property bearing No.399-400 (Old No.204) Khari Baoli, Delhi and on his death this property was inherited by his widow and son Yashpal Batra (defendant No.1 in the suit). They i.e. widow of Shri Ram Dhan Batra and defendant No.1 created Mortgage Deed of the property in favour of Shri Amar Dass (Predecessor in interest of the appellant herein) on taking a loan of Rs.7,500/- . This was a registered Mortgage Deed dated 20th August, 1969. It was averred that since money was not paid back and mortgage was not redeemed the appellant had become owner of the property in question. When the Mortgage Deed was created, a large portion of the property was under the tenancy of the defendant No.2 and therefore the defendant No.2 was also impleaded in the said Suit.

(2.) The Defendant No.1 filed the written statement and contested the Suit. he also filed application under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the Plaint on the ground that if he did not disclose any cause of action on the basis of which reliefs as claimed were prayed for. This application has been allowed by the learned Single Judge as a result of which the Plaint of the appellants herein is rejected accepting the plea that it does not disclose any cause of action.

(3.) The admitted facts as averred by the learned Single Judge in the impugned order and on which there was no dispute was that the Mortgage Deed dated 20th August, 1969 was a registered document and it describes the nature of instruments as "Mortgage Temporary without Possession". In the very first para of the said Mortgage Deed it is also written that " The possession will remain ours". It also mentioned that if the total principal amount is not paid as promised or the interest amount remains unpaid for three months then the Mortgagee shall have right to retrieve his total principal amount alongwith interest due through a Court case or issue of a decree till the total payment @ 62 Paise per month per 100/-, in lump sum, from the mortgaged property and other properties of either types belonging to the mortgagor. Keeping in view the aforesaid disposition and characteristics of the Deed, the learned Single Judge concluded that this document created Simple Mortgage without possession. Learned counsel for the appellant challenged this conclusion of the learned Single Judge on the ground that in the Plaint the appellants had categorically stated that there was a clear agreement and understanding between the parties that for all purposes and intentions the possession of the defendant No.2 in the suit property shall be treated and accepted as possession of Late Shri Amar Dass in his capacity as mortgagee in respect of the suit property. His submission was that when there was a categorical averment in the Plaint that when the Mortgage Deed was executed there was a clear agreement and understanding between the parties that for all purposes and intentions the possession of the defendant No.2 shall be treated and accepted as possession of Late Shri Amar Dass in his capacity as Mortgagee, at the time of hearing of the application Under Order 7 Rule 11 CPC the averment in the Plaint only could have been seen and not the case of the defendant. He relied upon the judgment of Hon'ble the Supreme Court in the case of "Sopan Sukhdeo Sable Vs. Assistant Charity Commissioner, 2004 (3) SCC 137" in support of this proposition and argued that in a case like this, before arriving at a particular conclusion it was incumbent upon the learned Single Judge to allow the parties to lead evidence and could not have rejected the Plaint at this stage.