ISUFALI Vs. MAJIDKHAN

JUDGEMENT

(1.) THE only question raised in this revision petition arising out of a small cause is as regards the competancy of the present suit for recovery of arrears of rent. The objection is based on the provision of Order 2 Rule 2 C.P.C.

(2.) THE facte, which are not in dispute, are that the Defendant Majidkhan mortgaged his house situatad in Sailanipura Ratlam with the Plaintiff Usufali Taiyabali Bohara for a consideration of Rs. 500 -. The mortgage -deed provided that the Plaintiff should have possession of the mortgaged property as security for his dues and that the mortgage money should not carry interest and no rent is liable to be paid by the Plaintiff for having the possession of the house. There was a lease back by the Plaintiff to the Defendant of the mortgaged house under a rent note at the rate of Rs. 17 -8 -0 per month and a reference to the fact of this lease back is made in the mortgage -deed itself although a separate rent -note is also executed on the same date. There was a term in the mortgage -deed that the mortgagor would redeem the house within the period of six months. The amount of the mortgage -money was agreed to be recoverable from the mortgagor's other property and personally from him besides out of the mortgaged property. The rent -note executed as a sequel to the mortgage transaction was operative for the period of six months only. The Plaintiff in the present suit claimed rent for 34 months at the rate of Rs. 17 -8 -0 p. m. i. e. Rs. 595/ -.

(3.) A contention of a preliminary character was raised on behalf of the Defendant that the suit is not maintainable since the Plaintiff had secured a decree on the basis of the mortgage and the claim for the amount in suit should have been included in that suit. This was treated by the learned Small Cause Judge as a preliminary point. He accepted the Defendant's objection which in substance was based on the provision of Order 2 Rule 2 C. P. C. The reasoning of the learned fudge for upholding the defence may be stated in his own words: