JOGINDER SINGH HARNAM SINGH Vs. HARDIAL SINGH

JUDGEMENT

(1.) THE facts giving rise to the present revision, as disclosed in the orders of the courts below, may briefly be stated. Land measuring 21 kanals and 6 marlas belonging to Lal Singh respondent was mortgaged in favour of Joginder Singh petitioner, son of Harnam Singh, in this Court for a sum of Rs. 1,400/- and the necessary mutation was duly sanctioned on 10-8-1957. On 16-12-1957, mortgagor Lal Singh executed a bond in favour of the mortgagee for Rs. 1,500, in which it was mentioned that he would pay the amount of this bond and redeem the land in suit. Lal Singh later sold the land to Hardial Singh and Joginder Singh, sons of Sher singh, who applied to the Revenue authorities for redemption of the land. The revenue Officer made an order for redemption on payment of Rs. 1,400/ -. In pursuance of this order, the vendees wanted to take possession of the land after depositing the amount determined in the order. Joginder Singh instituted the suit out of which the present revision arises for permanent injunction restraining the vendees from taking possession of the land on the allegation that the mortgage amount was Rs. 2,900/- and not Rs. 1,400/ -. In the alternative prayer for recovery of the remaining amount of Rs. 1,500/-was also made. From the order of the trial Court, it appears that before the Revenue Officer also, it was asserted by the mortgagee that the land had been mortgaged for Rs. 2,900, but this plea was not accepted. An application was made in the Court of first instance for a temporary injunction and that Court took the view that in case it was proved that the land had been mortgaged for Rs. 2,900/ -. then it would lead to further litigation regarding mesne profits and the purpose of the suit would also be lost in case the defendants were directed to take possession of the suit land. In his discretion, the learned subordinate Judge made an order restraining the defendants from taking possession of the suit land from the plaintiff till the disposal of the case.

(2.) THE defendant-vendees feeling dissatisfied took the matter to the learned district Judge, Shri Pritam Singh Pattar, who apparently felt that the discretion had not been exercised by the Court of first instance in a judicial manner. The learned District Judge pointed out that to entitle the plaintiff to a temporary injunction, the Court should be satisfied that there is a serious question to be tried on the hearing, and that on the facts before it, there is a probability that the plaintiff is entitled to relief. In other words, as he himself puts it, it is to be seen that the plaintiff has got a prima facie case that the balance of convenience is in his favour and that he would incur an irreparable loss. In the case in hand, the mortgage amount was Rs. 1,400/- and an order had been made by the Revenue Court for redemption of the land on payment of that amount. After noticing the allegation of the execution of bond for Rs. 1,500/-, in which it was stated that the mortgagor would pay the amount of this bond as well on redeeming the land in suit the lower Appellate Court posed the question for determining whether or not this condition in the bond, which was not a registered document, created a valid charge on the land. After noticing the relevant contentions, the Court proceeded to form an opinion that prima facie the appellants were entitled to get possession of the land, but at the same time observing that he would not be taken to have expressed an opinion on the merits of the case, the order of me trial Court granting a temporary injunction was quashed and set aside.

(3.) ON revision before me, it has been very strongly argued on behalf of the mortgagee that the learned District Judge has completely ignored the consequence of his order. Although he has intended to leave the decision on me merits of the controversy open to the Court of first instance, by quashing the order of temporary injunction, he has virtually created or given rise to a situation in which the defendants would be armed with a further weapon to defeat the plaintiff's claim on the merits. The grievance cannot be brushed aside with a shrug of the shoulder and the plaintiff-petitioner can legitimately complain that the discretion has not been judiciously exercised by the learned District Judge. The plaintiff's case, as has been sought to be put by his counsel in this Court, is, that even though the transaction of a loan of Rs. 1,500/- has been evidenced by an unregistered bond, nevertheless under Section 53-A, Transfer of Property Act, and the principle underlying this section, the debtor cannot redeem this property without paying the amount loaned to him under the said bond which creates a further charge. The contention advanced is that the mortgagee continued in possession of the mortgaged property in part performance of the subsequent agreement as well, and he has also done some act in furtherance of such subsequent contract. Of course, it is also asserted that the plaintiff-petitioner has performed and is also willing to perform his part of the contract. On the facts and circumstances of the present case, the petitioner has argued with a certain amount of justification that weighing the consequences of either course, namely, of allowing or disallowing temporary ad interim injunction, the dictates of justice must to a reasonable judicial mind lead to an order in favour of the plaintiff and not against him. To decline an ad interim injunction would arm the defendants with an additional argument, whereas acceding to the plaintiff's prayer would merely mean an injury which can be remedied by putting the plaintiff on terms.