Karnataka High Court
B.S. Viswanath vs Smt. Chandika Ben J. Mehta And Others on 31 July, 1989
Equivalent citations: AIR1990KANT142, ILR1989KAR3245, 1989(2)KARLJ398, AIR 1990 KARNATAKA 142, 1989 (2) KANTLJ 398 ILR 1989 KANT 3245, ILR 1989 KANT 3245
JUDGMENT
1. This appeal is presented by the appellant/defendant against an order for partial decree made by the Xth Additional City Civil Judge, Bangalore in a suit filed by respondents 1 to 3.
2. The facts of the case are these. The house property which is the subject matter, for a decree for redemption belonged to one Nangamma. She had mortgaged the said property in favour of the appellant, by a Registered Mortgage deed dated 22/7/74. The period of mortgage was 10 years. The amount borrowed was Rs. 21,500/-. After the period of mortgage was over said Nanjamma filed O.S. No. 3189/87 seeking redemption of the mortgaged property. Thereafter, according to the respondents, she sold the property in their favour by registered sale deed dated 11-12-1987 and withdrew the suit. After purchasing the house property the respondents/plaintiffs filed the suit for redemption on 7/4/1988. On 1st August, 1988, and they also deposited the mortgage money of Rs. 21,500/-in the Court. Though the defendant/ appellant had been served with the notice in the suit, they did not appear before the Court. In the circumstances, the appellant/defendant was placed ex parte and on behalf of plaintiffs/respondents the third respondent was examined as P.W. 1 on 23-1-1989. Thereafter the appellant appeared and made an application to permit him to file the written statement and to contest the case and his prayer was granted. He then filed his written statement. In the written statement, the appellant admitted the mortgage transaction and also admitted that the mortgage was for a sum of Rs. 21,500/- and the period of mortgage was 10 years. The appellant, however, stated that he was entitled to receive some more amount, which is said to have been advanced by him to Nangamma and he also claimed to receive the money equal to tax paid to the Corporation and also the amount spent on improvement of the property. But the fact remains, the appellant/defendant did admit the mortgage transaction and according to the mortgage deed, the period of mortgage was 10 years and the amount of mortgage was Rs. 21,500/- and therefore, as the period of mortgage had come to an end, the mortgagor was entitled to seek redemption of the property on depositing a sum of Rs. 21,500/-which is the only amount due under the mortgage deed. But the appellant/defend ant took a specific plea in the written statement that the respondents have not purchased the property from Nanjamma and they had not become the owner of the property.
3. In the circumstances, on the basis of the plaint and the written statement, the following issues were framed by Court below :--
1. Do the plaintiffs prove their title to the suit schedule property?.
2. Do the plaintiffs prove that they have purchased the suit schedule property subject to the encumberance of mortgage by their vendor under the usufructuary mortgage deed dated 22-7-1974 for Rs. 21,500/- and entitled for redemption of the same?.
3. Do the plaintiffs prove that they are entitled for possession of suit schedule property?.
4. Do the plaintiffs prove that the defendant attempted to encumber or otherwise part with possession of their property?.
5. Whether the defendant proves that he paid Rs. 31,500/- to Nanjamma under the mortgage Deed dated 22-7-74?.
6. Whether the defendant proves that he has got the charge over the suit property for another Rs. 5,000/- to Nanjamma and another Rs. 5,000/- to Hemanna?.
7. Whether the defendant proves that he has spent Rs. 7,000/- for the preservation of the suit property and entitled for the said amount with 21% per annum interest?.
8. Whether the defendant proves the suit is bad for non-joinder of necessary parties?.
9. What reliefs & what order?."
4. Though large number of issues have been framed the real issues were only two, namely (i) whether the respondents had purchased the property from Nanjamma through a registered sale deed and had thereby acquired title and interest to the property and (ii) whether the mortgage deed was true and the appellant took possessipn of the property in question under the aforesaid usufructuary mortgage?.
5. At this stage, as the appellant had admitted the mortgage transaction the respondents filed an application under Order-12, Rule-6 of the Code of Civil Procedure praying for partial decree on the basis of the admission. The learned Judge allowed the said application taking the view that the mortgage transaction having been admitted by the appellant and as according to the mortgage deed, the period of mortgage of 10 years was over, and the amount due under the mortgage was only Rs. 21,500/- and as the said amount had been deposited by the respondents in Court, the partial decree should be passed under Order-12, Rule-6 C.P.C. and accordingly passed the decree. As regards the plea of the appellant/defendant that some more money was due from Nanjamma, the Court took the view that once the mortgage deed was admitted the appellant could not resist the prayer for redemption of the plea some more money not mentioned in the mortgage was due to the appellant. Aggrieved by the said order, the appellant has presented this appeal.
6. The precise question which arises for consideration in this case is :
Whether the lower court had the jurisdiction to pass a decree under Order 12, Rule 6 C.P.C. on the basis of the admission made by the appellant regarding the mortgage deed even though the appellant had denied the title of respondents to the suit property and in fact a specific issue to that effect had been framed?.
7. The provisions of Order 12, Rule6 including the State Amendment reads :--
"(6)(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
State Amendment 6(2) :
The Court may also of its own motion make such order or give such judgment as it may consider just, haying regard to the admissions made by the parties."
8. As can be seen from the above provision, the Court in its discretion has the jurisdiction to pass partial decree on the basis of the facts admitted, whether such admission is in the pleadings or otherwise. The clear scope of the above provision is, the admission must be Such which is complete and sufficient to pass a partial decree, which the Court proposes to pass on the basis of admission.
Therefore in the present case if the title of the respondent was not disputed, in that, the appellant had either admitted that the respondent had purchased the property from Nanjamma or had not denied the specific claim made in the plaint that they had purchased the property under a registered sale deed dated 11-12-1987, the Court would have been within its jurisdiction to pass a decree under Order 12 Rule 6 as the mortgage transaction was admitted and it would have been sufficient to pass partial decree with the Court below has passed in the-present case.
9. The learned Counsel for the appellant submitted that the admission of the mortgage transaction was not sufficient to pass the partial decree under Order 12, Rule 6 C.P.C. as the title of the respondent to the property was disputed and therefore, it was necessary for the Court below to record a finding on the said issue after recording evidence adduced by both the parties. In support the contention, the learned Counsel for the appellant relies on the judgment of this Court in ILR(1989) Kant 1895, (Janardhan Jog v. Srikrishna). In the said judgment, Shivashankar Bhat, J., interpreting the provisions of Order 12, Rule 6, held that admission for giving jurisdiction to pass a partial decree under the provision should be an absolute admission and it must be such as would be sufficient by itself to pass the decree and that if the admitted facts cannot stand independently so as to constitute a basis for passing a decree, no partial decree under Order 12 Rule 6 Civil Procedure Code would be passed. We respectfully agree with the said view.
10. Learned Counsel for the respondents/plaintiffs however, contended that the mortgagee could not impeach the title of the mortgagor and therefore answering that issue was unnecessary and therefore, the Court was within its jurisdiction to pass partial decree under Order 12 Rule 6 of the Code of Civil Procedure. In support of this contention he relied on the judgment of this Court in C. Krishnamurthy Setty v. Abdul Khadar, AIR 1956 Mysore 14. In the said case this Court held that it was not permissible to a mortgagee or a transferee of his rights, to impeach the title of the mortgagor to the mortgaged property and in the case of usufructuary mortgage when possession of the properties had been obtained from the mortgagor, the mortgagee is estopped from contesting the title of the mortgagor. The ratio of the said decision is, a mortgagee could not impeach the title of his. mortgagor to the property mortgaged, even if the tatter had no right or title to the property for, having secured the mortgage deed in his favour from the mortgagor and having taken possession of the mortgaged property from him, he cannot turn round and say that the mortgagor had no title to the mortgaged property. This position holds good even to the purchaser of the property from the mortgagor, but the purchase has to be proved, if disputed. In the present case, if the purchase of the mortgaged property by the respondents had been admitted either in the written statement or in the reply to the suit notice or in any other way, the Court would have been within its jurisdiction to pass partial decree under Order-12, Rule-6 Civil Procedure Code. But there was no such admission and far from that there was specific plea to the effect that respondents had not become the owners of property by purchasing it from Nanjamma. Therefore, in our opinion the Court could not have passed the partial decree under Order-12, Rule-6 of the Code of Civil Procedure, only on the basis of the admission by the appellant of the mortgage transanction in the absence of any admission as to the acquisition of title by the respondents to the suit property.
11. Learned Counsel for the respondents submitted that the appellant, who has no right to remain in possession of the property as the mortgage period had come to an end, was taking a technical plea for dragging the proceedings and it would be unjust to allow him to continue in the property even after the deposit of the entire mortgage amount by the respondents. It appears to be true that the appellant has taken a plea in the written statement that- the respondents had not acquired the title only with the object of delaying the passing of decree against him, so that lie might continue in possession of the mortgaged house as long as possible, but such conduct of his gives no jurisdiction to the Court to pass a decree under Order-12, Rule-6 C.P.C., for the reasons stated earlier. The only course open to the Court was to expedite the recording of evidence regarding the acquisition of ownership of the property by the respondent and if the finding were to be that the appellant had purchased the property from Nanjamma, to proceed to pass the decree in favour of the respondents.
12. In the result, we make the following order :--
ORDER
i) The appeal is allowed.
ii) The order passed by the Court below under Order-12, Rule-6 of C.P.C., is set aside.
iii) The Court below is directed to dispose of the case most expeditiously, particularly, having regard to the fact that the respondents have deposited the mortgage money long back and the only material issue to be decided is as to whether the respondents have purchased the suit property.
iv) Prepare a carbon copy of this order and despatch it to the Court below forth with.
13. Appeal allowed.