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2010 DIGILAW 3580 (MAD)

A. K. v. Nithyanandan VS R. Lucas

2010-08-18

R.SUBBIAH

body2010
JUDGMENT R. Subbiah, J. 1. This Second Appeal is preferred against the decree and judgment dated 30-4-2001 passed by the learned II Additional Subordinate Judge, Villupuram, in A. S. No. 18 of 2000, whereby the decree and judgment dated 30-9-1998 passed by the learned Principal District Munsif, Villupuram, in O. S. No. 289 of 1998 were modified. 2. The Appellant herein is the Plaintiff, who filed the suit in O. S. No. 289 of 1998 on the file of Principal District Munsif Court, Villupuram, against the Respondents herein, for recovery of a sum of Rs. 23,821/- with 12% interest. 3. The case of the Plaintiff, as per the plaint averments, is as follows: The Plaintiff is the absolute owner of the suit house and it was leased out to the Defendants and the tenancy was for an English Calendar month. The monthly rent of Rs. 650/- was payable on or before the 5th of every succeeding month and no amount had been paid as advance. Though the Defendants were also permitted to use the thatched shed on the western side of the suit property in order to run a tuition centre, they were irregular in payment of rent and they failed and neglected to pay the rent. Hence, the Plaintiff filed the suit for recovery of a sum of Rs. 23,821/- towards arrears of rent from February, 1998 for a period of 36 months. 4. The said suit was resisted by the Defendants by taking a defence that originally a rental agreement was entered into between the father of the Plaintiff, viz., A.S. Venkatkrishnan and these Defendants on 9-8-1990, under which a sum of Rs. 7,000/-was paid as advance to the Plaintiff's father, who died on 9-8-1993. Thereafter, the Defendants entered into an unregistered 'rental agreement receipt' with the Plaintiff for continuing as the tenants in the suit property. Originally the rent was agreed and paid was Rs. 400/- per month and since the Defendants took additional portion, the rent was fixed as Rs. 650/-per month under the second rent deed. But, subsequently, the additional portion was damaged by a fire accident that took place on 16-8-1994 and hence, it was locked by the Plaintiff Thereafter, the Defendants were paying the rent at Rs. 400/- per month and they denied the default in payment of rent. 5. 650/-per month under the second rent deed. But, subsequently, the additional portion was damaged by a fire accident that took place on 16-8-1994 and hence, it was locked by the Plaintiff Thereafter, the Defendants were paying the rent at Rs. 400/- per month and they denied the default in payment of rent. 5. On the basis of the above said pleadings, the trial Court framed three issues and the Plaintiff, in support of his case, examined himself as P.W. 1 and marked Exs. A-1 and A-2. On the side of the Defendants, two witnesses were examined as D. Ws. 1 and 2 and 7 documents were marked as Ex. B-1 to B-7. Pending suit, the Defendants had paid Rs. 8,200/- on 30-7-1998 under Ex. A-1. Since the Plaintiff had disputed the advanced amount of Rs. 7,000/- paid, the Defendants, to prove the same, marked the original rental agreement entered with the Plaintiff's father as Ex. B-1 and the subsequent rental receipt as Ex. B-2. But the Plaintiff had objected for marking the said documents inasmuch as they were unregistered and not duly stamped and hence, the trial Court had directed the Defendants to pay a sum of Rs. 5,544/- (Rs. 2,112/-+ Rs. 3,432/-) as penalty and the Defendants have done so. Thereafter, the trial Court, on a consideration of the entire evidence on record both oral and documentary, had directed the Defendants to pay a sum of Rs. 3,077/- with interest at 9%, after deducting the sum of Rs. 8,200/- being the amount received by the Plaintiff pending trial, the advance amount of Rs. 7,000/- and the penalty amount of Rs. 5,544/-. As against the judgment of the trial Court, the Plaintiff filed an appeal in A. S. No. 18 of the 2000 and the Defendants filed a cross appeal on the file of II Additional Sub Court, Villupuram, whereby the judgment of the trial Court was modified by directing the Defendants to pay a sum of Rs. 8,621/- after deducting the advance amount of Rs. 7,000/- and Rs. 8,200/-received by the Plaintiff during trial and at the same time, the appellate Court had directed the Plaintiff to pay the penalty amount of Rs. 5,544/- paid under Exs. B-1 and B-2 to the Defendants and dismissed the cross appeal. Aggrieved by the judgment of the appellate Court, the Plaintiff has filed this present second appeal. 6. 7,000/- and Rs. 8,200/-received by the Plaintiff during trial and at the same time, the appellate Court had directed the Plaintiff to pay the penalty amount of Rs. 5,544/- paid under Exs. B-1 and B-2 to the Defendants and dismissed the cross appeal. Aggrieved by the judgment of the appellate Court, the Plaintiff has filed this present second appeal. 6. At the time of admission of the second appeal, this Court framed the following substantial questions of law for consideration: (1) Whether, in law, the Courts below right in relying on Exs. A-1 and A-2 lease deeds for any purpose as they were inadmissible in evidence under Section 17 of the Registration Act and Section 25 of the Stamp Act and as held in (2001) 1 MLJ 1 (DB)? (2) Whether, in law, the Courts below were right in directing the Appellant to pay the Respondents the amount spent on stamp duty penalty when the Respondents (grantees) alone were liable to pay the amount under Section 29(c) of the Stamp Act? (3) Whether, in law, the Lower Appellate Court was right in granting a money decree in favour of the Respondents when they had not valued the relief and paid Court fee on it? (4) Whether, in law, the Courts below were right in deducting the advance alleged to have been paid when the Respondents were continuing in possession and had, in fact, continued to be in arrears even subsequent to suit? 7. Learned Counsel appearing for the Appellant/Plaintiff submitted that the present appeal is filed only aggrieved over a portion of the judgment of the appellate Court directing the Appellant/Plaintiff to pay a sum of Rs. 5,544/- to the Respondents/Defendants i.e. the penalty amount paid by the Respondents/Defendants on Exs. B-1 and B-2, which are the unregistered and not duly stamped documents. Under Section 17(d) of the Registration Act, they are not admissible in evidence and as per Section 29(c) of the Stamp Act, only a lessee is bound to pay the stamp duty on the document. But, in the instant case, the Respondents/Defendants, who were the lessees of the property, did not pay the stamp duty. Under such circumstances, the Courts below ought not to have relied upon Exs. B-1 and B-2. But the trial Court erroneously accepted Exs. But, in the instant case, the Respondents/Defendants, who were the lessees of the property, did not pay the stamp duty. Under such circumstances, the Courts below ought not to have relied upon Exs. B-1 and B-2. But the trial Court erroneously accepted Exs. B-1 and B-2 in evidence on payment of the penalty amount by the Respondents and thereafter, directed the Appellant/Plaintiff to pay the penalty amount, by relying upon Section 44 of the Stamp Act. Under Section 44 of the Samp Act, a person, who is paying the stamp duty, can recover the same from the other person. In this regard, the learned Counsel submitted that when as per Section 29(c) of the Stamp Act the lessee is liable to pay the stamp duty, the question of recovery under Section 44 of the Stamp Act does not arise in cases of this nature. But; by misinterpreting Section 44, the Courts below have directed the Plaintiff to pay the penalty amount. In this regard, the learned Counsel also relied, upon the judgments, reported in : ( AIR 1999 SC 37 ) : 1999 (1) CTC 87 (Rajendra Pratap Singh v. Rameshwar Prasad) and :( AIR 2001 SC 1321 ) : 2001 (2) CTC 47 (Chilakuri Gangulappa v. Revenue Divisional Officer, Madanpalle and Anr.). It was further submitted that under Section 17(d) of the Registration Act, a document is liable to be registered and when it is insufficiently stamped and unregistered, the same cannot be relied upon. Under such circumstances the Appellant cannot be made liable to pay the penalty amount paid on Exs. B-1 and B-2 by the Defendants. 8. Per contra, the learned Counsel for the Respondent/Plaintiff submitted that since the Appellant had denied the payment of advance of Rs. 7,000/- the Respondents/Defendants were compelled to mark Exs. B-1 and B-2 dated 9-8-1990 and 9-8-1993 respectively to prove their defence that a sum of Rs. 7,000/-had been paid as advance. Moreover, based on Exs. B-1 and B-2, no possession was sought for. Therefore, the objection raised by the Appellant was correctly negatived by the Courts below and the Appellant was directed to pay the penalty amount, which is legally sustainable. 9. Heard the learned Counsel for the parties and perused the materials on record. 10. 7,000/-had been paid as advance. Moreover, based on Exs. B-1 and B-2, no possession was sought for. Therefore, the objection raised by the Appellant was correctly negatived by the Courts below and the Appellant was directed to pay the penalty amount, which is legally sustainable. 9. Heard the learned Counsel for the parties and perused the materials on record. 10. Keeping the submissions made by the learned Counsel on either side and after going through the materials, I find that the Appellant had filed the suit for recovery of a sum of Rs. 23,821/- as arrears of rent from the Respondents. Pending suit, Rs. 8,200/- was paid by the Respondents to the Appellant under Ex. A-1. Further, it is the case of the Respondents that Rs. 7,000/- was paid as advance to the father of the Appellant under a rental agreement dated 9-8-1990 and after the death of the Appellant's father, the Appellant and the Respondents had entered into an unregistered rental agreement receipt dated 9-8-1993 under which, the Respondents were permitted to use the additional portion by paying a monthly rent of Rs. 650/-, but the same was denied by the Appellant. Hence, the Respondents were made to produce Exs. B-1 and B-2 before the Court below to prove their case. When the said documents were filed, an objection was raised by the Appellant stating that the said documents were not sufficiently stamped and registered and as such, the trial Court had directed the Respondents to pay a penalty of Rs. 5,544/- and on payment, the said documents were accepted in evidence and based on the same, the trial Court had come to the conclusion that the sum of Rs. 7,000/- was paid to the Appellant's father as advance and it was liable to be deducted from the arrears of rent. 11. It is the contention of the learned Counsel for the Appellant that under Section 29 of the Stamp Act, only the lessee is liable to pay the stamp duty and as such, the trial Court ought not to have accepted the said documents in evidence; but the trial Court had not only erroneously accepted the said documents in evidence but also directed the Appellant to return the amount of Rs. 5,544/- i.e. the penalty amount paid by the Respondents by wrongly misunderstanding Section 44 of the Stamp Act. 5,544/- i.e. the penalty amount paid by the Respondents by wrongly misunderstanding Section 44 of the Stamp Act. Since under Section 29(c) the lessee is liable to pay the amount, the question of paying the amount under Section 44 by the lesson, does not arise. But it is the contention of the learned Counsel for the Respondents that the said documents were taken into consideration as receipts to give a set off in respect of the advance amount paid to the Appellant's father. 12. On a careful reading of the judgment, I find that the Appellant had denied the receipt of the advance amount of Rs. 7,000/-and on account of the same, the Respondents were forced to mark Exs. B-1 and B-2 and at the time of marking the documents, an objection was raised by the Appellant that they were not registered and duly stamped and thereafter, the trial Court had directed the Respondents to pay the penalty amount and hence, the Respondents had paid a sum of Rs. 5,544/- (Rs. 2,112/- on Ex. B-1 and Rs. 3,342/- on Ex. B-2). Only thereafter, the said documents were received. The trial Court had come to the conclusion that, (Vernacular matter omitted.... Ed.) and deducted the said sum of Rs. 7,000/- from the arrears of rant. I am in agreement with the said finding given by the trial Court. In my considered opinion, as contended by the learned Counsel, for the Respondents, the said document was used only as a receipt to prove the advance amount paid to the Appellant's father. Hence, both the Courts below have come to the conclusion that since the Respondents were made to pay the penalty in view of the objection raised by the Appellant, the Appellant is liable to pay the penalty amount particularly in the circumstances when Ex. B-1 was proved. I am of the opinion that on the principle of equity, the said amount was directed to be paid by the Plaintiff and as such, I do not find any infirmity in the said observation made by the Courts below. 13. Further, I find that the modification made by the appellate Court by directing the Respondents to pay a sum of Rs. 8,621/- towards the rental arrears and the Appellant to pay a sum of Rs. 5,544/- to the Respondents is unwarranted. 13. Further, I find that the modification made by the appellate Court by directing the Respondents to pay a sum of Rs. 8,621/- towards the rental arrears and the Appellant to pay a sum of Rs. 5,544/- to the Respondents is unwarranted. Hence, that finding of the appellate Court is set aside; however, the decree and judgment of the trial Court are hereby confirmed holding that the Respondents/Defendants are liable to pay a sum of Rs. 3,077/- as arrears of rent to the Appellant. Both the Courts below have correctly appreciated the evidence and the documents adduced by the parties. I find no question of law is involved in this matter, warranting this Court to interfere with the same. For the reasons stated above, the second appeal fails and is dismissed. No costs. Consequently, connected C. M. R. is closed.