AHMED BIN SALAH Vs. ATMANAND JEE

JUDGEMENT

(1.) The revision petitioner is a mortgagee with possession. He leased back the hypotheca to the mortgagor, who is the respondent herein. The petitioner sought eviction of the respondent on the ground that he was a wilful defaulter. The Rent Controller, to whom the application for eviction was made, threws out the case in limine for want of jurisdiction. The learned Chief Judge, Small Causes Court upheld the order of the Rent Controller by his order d/16-10-1956. It is against this order the present revision is directed.

(2.) The learned Chief Judge concedes that the definition of 'landlord' is wide enough to cover a mortgagee, who has leased back the hypotheca to the mortgagor, but he thought that the scope of the definition would seem to stand curtailed by the language of Section 15 of the Hyderabad Houses (Rent, Eviction and Lease Control) Act, to be hereinafter referred to as the Act. In this view, the relationship between the parties was that of a creditor and debtor and their rights and liabilities are to be determined under the general law and not under the Act.

(3.) In adopting this line of reasoning the learned Chief Judge has ignored the characteristics of a mortgage. A perusal of Section 58(a) of the Transfer of property Act would show that a mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability. In the present case, there is no dispute hat possession of the hypotheca had been transferred to the mortgagee. He can, therefore, enjoy the property personally or lease it out to a third person or the mortgagor himself. If it is leased out to a third person the learned Chief Judge on the authority of Bapu Rau v. Nagnath, ILR 1956 Hyd. 471 , held that the mortgage; would be a "Landlord" within the definition of that expression as given in Section 2 (c) of the Act, but, when it comes to a lease back to the mortgagor the position according to the learned Judge would change and the contest would be between the owner of the property and the creditor.