RSA No. 46 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.46 of 1986 (O&M) Date of Decision: 03.12. 2008 Harbans Lal ...... Appellant Versus Mangat Ram ...... Respondent Coram: Hon'ble Mr. Justice Ajay Tewari 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.R.S.Bains, Advocate for the appellant. Mr. Avnish Mittal, Advocate for the respondent. **** Ajay Tewari, J. This appeal has been filed against the concurrent judgments of the Courts below dismissing the suit of the plaintiff for possession holding that the plaintiff-appellant has lost the right of redemption. Interestingly this finding has been given not on the pleadings of the mortgagee but at the behest of appellant who had been inducted as tenant by the mortgagee. It is also to be noticed that the mortgagee appeared as a witness and admitted the redemption on payment. Learned counsel for the appellant has relied on three singular facts. The first is that an identical proceeding had been launched in respect of an adjacent shop wherein the mortgagor and RSA No. 46 of 1986 2 mortgagee were the same though the tenant was different. Those proceedings culminated in RSA No. 1308 of 1977 which was decided on 28.10.1977 in the following terms:- “Mr.Sarin states that the mortgagor had given the authority to the mortgagee to lease out the premises and in view of that authority, the premises were leased out to the appellant. In the circumstances, Mr.Sarin vehemently argues that the tenancy does not come to an end after the redemption of the property. In support of his contention, he has referred to a Full Bench decision of this Court in Jagan Nath Piare Lal v. Mittar Sain and others, AIR 1970 Punjab and Haryana 104. On the other hand, Mr.Puri, learned counsel for the respondent has argued that the proposition laid down in Jagan Nath Piare Lal's case (supra) is not applicable to the facts of the present case. He further argued that in case the mortgagor does not specifically state that the mortgagee had the right to give the property on lease beyond the term of mortgage, the appellant could not avail of the ratio of the Full Bench decision. In support of his contention, he has further referred to Sachalmal Parasram v. Ratanbai and others, AIR 1972 S.C.637; All India Film Corp. v. Raja Gyan Nath, 1970 P.L.R. 578 (SC) and Sham Dass and others v. Hari Ram and others, 1976 All India Rent Control Journal 11. I have heard the learned counsel for the parties at considerable length and find force in the contention of Mr.Puri. The matter is now well settled by the Full Bench in Jagan Nath Piare Lal 's case (supra) and Supreme Court in the above mentioned cases. In the circumstances, I do not find any substance in the contention of Mr.Sarin, learned counsel for the appellant. The appeal is consequently dismissed. Mr.Puri has given an assurance that the appellant shall not be ejected from the property in dispute for a period of one month. The assurance will not, however, tentamount to any fresh contract between the parties.” RSA No. 46 of 1986 3 He has further urged that the respondent-tenant filed an application for amendment of written statement to take the plea that the appellant had lost the right to redeem but this Court rejected the said plea in Civil Revision No. 283 of 1978 holding as follows:- “Since the defendant-respondent admitted himself to be a tenant under the mortgagee, the trial Court will decide as to whether he has any right to remain in possession as a tenant of the mortgagor. The tenant legally could not raise the issue that the redemption of the mortgage was bogus and collusive.” He has also urged that in view of these facts the Courts below could not have gone into the question of the right of the appellant to redeem the property or into the question regarding the validity of the admitted redemption. Learned counsel has sought to argue that on point of law the mortgage was for a period of two years and admittedly on the date of redemption a period of more than 30 years had lapsed since the right to redeem arose. In the circumstances it is his assertion that in law the findings of the Courts below that the appellant had lost the right of redemption could not be faulted. In my opinion this appeal must succeed. Once this Court had disentitled the respondent from raising the plea regarding the validity of the redemption any finding thereon would be clearly ultra vires and vitiated. It cannot be lost sight of that the suit was filed in 1975 and now for the past 33 years the respondent has continued to be in possession of the property without paying any rent, at least from the date of the decree of the Courts below. As mentioned above landlord-mortgagee has abandoned any interest in the property by accepting the redemption money. Consequently this appeal is allowed. The judgments and decrees of RSA No. 46 of 1986 4 the Courts below are set aside and the suit of the plaintiff for possession is decreed. However,I feel that a period of six months should be granted to the respondent to wind up the running business at the spot subject to his furnishing an undertaking within 15 days that he would vacate the premises on or before 31.5.2009. (AJAY TEWARI) JUDGE December 03, 2008 sunita RSA No. 46 of 1986 5