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Madhya Pradesh High Court · body

2012 DIGILAW 163 (MP)

Manish Anand v. Ramniwas Gupta

2012-02-04

SUJOY PAUL

body2012
ORDER 1. By filing this petition under Article 227 of the Constitution, challenge is made to the order dated 14.10.2011 whereby an application preferred by the defendant/petitioner under Section 151 CPC is rejected by the Court below. The singular contention advanced by Shri Katare, learned counsel for the petitioner is that Annexure C/1 filed by the respondent is a lease deed and Court below has erred in law in only impounding the document for the purpose of proper stamping but failed to see that the said lease deed is required to be registered. Shri Katare, learned counsel for the petitioner relied on 1986 JLJ 224 (Sitaram Vs. Shankarlal) and 1992 (2) WN 26 (Khemchand Vs. Laxman Prasad Shrimali) to submit that the said document cannot be looked into for the purpose of evidence by the Court below. 2. Per contra, Shri Shri Bhardawaj submits that bare perusal of Annexue C/1 would show that it is not a lease deed, at the best it is an agreement defining terms of tenancy and by no stretch of imagination it cannot be said to be a 'Lease'. By placing reliance on the judgment of Division Bench of this Court rendered in W.P No.2017/2008 (Smt. Kamla Devi Vs. Vishnudas) Shri Bhardawaj submits that this Court has dealt with the facet of 'Lease' and came to hold that the said agreement does not fall within the ambit of 'Lease'. He further submits that since that the document is not a lease deed and, therefore, question of registration of the document would not arise. He also relied on the recent judgment of Shalini Shyam Shetty and another vs. Rajendra Shankar Patil, reported in (2010) 8 SCC 329 to submits that this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution is not required to interfere in an order which does not suffer from any procedural impropriety, perversity or illegality. 4. I have heard learned counsel for the parties and perused the record. 5. A Division Bench in Smt. Kamla Devi (supra) held as under:- “For ascertaining the nature of document, the definition of 'lease' in Section 105 of the Act has to be looked into. 4. I have heard learned counsel for the parties and perused the record. 5. A Division Bench in Smt. Kamla Devi (supra) held as under:- “For ascertaining the nature of document, the definition of 'lease' in Section 105 of the Act has to be looked into. Section 105 of the Transfer of Property Act specifically provides that a lease of immovable property is transfer of a right to enjoy such property, made for certain time, express of implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops. Service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. The essential ingredient of lease are (i) that by the document immovable property should be transferred with a right to enjoy the property in lieu of rent. (ii) there must be lessor and lessee, (iii) the term or period of lease (iv) the consideration or rent in cash or in kind. So it is clear that the lease is not a mere contract, but is a transfer of an interest of immovable property in lieu of consideration may be cash or kind and ownership remains to lessor though right to enjoy property is transferred to the lessee. Until and unless the aforesaid essential ingredients are found place in a document, only then the document can be termed as lease”. Again, it is held as under:- “But from the perusal of Annexure P/3, we find that the property was already enjoyed by the petitioner as per terms of rent note Ex.P/2 and only after reducing the area of such premises, rent was resettled between the parties, except it other conditions remained as it were and the reduced area continued in tenancy. So for all the purposes, it was an agreement in respect of reduction of rate of rent and was not the agreement of lease or novation of earlier lease.” 6. The Division Bench in extenso laid down essential ingredients of the lease. Applying the said litmus test on Annexure C/1 it shows that Annexure C/1 is not a lease. On the contrary, it is only an agreement between the parties wherein certain terms of tenancy were defined and described. The Division Bench in extenso laid down essential ingredients of the lease. Applying the said litmus test on Annexure C/1 it shows that Annexure C/1 is not a lease. On the contrary, it is only an agreement between the parties wherein certain terms of tenancy were defined and described. In almost, similar situation the Division Bench opined that the documents in question is of agreement and not the agreement of the lease. In this view of the matter, I am unable to hold that Annexure C/1 is a lease and, therefore, the judgment cited by Shri Katare have no application. Apart from this, on the forehead of Annexure C/1, it is clearly mentioned that it is an agreement regarding rent. It is further mentioned in para-1 of this document that tenancy was as per oral arrangement. Thus as per Annexure C/1 also the tenancy was continuing prior to the agreement Annexure C/1 and it was on the basis of oral arrangement. In oral arrangement, needless to mention, that the aforesaid ingredients cannot be examined to show whether it was lease or not. Thus, I am unable to hold that Annexure C/1 is a lease. 7. In this view of the matter, the Court below has rightly applied the principle laid down in AIR 1980 MP 117 (Maharaj Singh and another Vs. Prem Narain and Others) in other words Annexure C/1 cannot be said to be a lease and therefore, the question of its registration does not arise. I find that the reason assigned by the Court below are plausible reason. In the case of Shalini Shyam Shetty and another vs. Rajendra Shankar Patil, reported in (2010) 8 SCC 329 the Supreme Court held as under:- 49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated: (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different. (b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. (b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. (c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority'. (f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar vs. Union of India , reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful. (j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above. (o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality.” 8. As per Shalini Shyam Shetty (supra) principle of culled out are that this Court under Article 227 of the Constitution is not obliged to act as an appellate Court and interference should be sparingly and not on a drop of hat. In absence of any procedural illegality or impropriety, perversity or jurisdictional error, no interference is warranted. Another view is possible, is not a ground for interference. 9. Applying the aforesaid principle in the peculiar facts and circumstances of this case, I find no reason to interfere in the present matter, interference is declined. Petition is dismissed.