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Uttarakhand High Court · body

2016 DIGILAW 369 (UTT)

Amit Kumar Verma v. Shitij Shukla

2016-07-21

SERVESH KUMAR GUPTA

body2016
JUDGMENT : This revision is directed against the judgment and order directing eviction of the tenant /revisionist, herein, besides granting the arrears of rent as well as mesne profits @Rs.4950/- per mensem. 2. Shop no.84 is the tenanted premises situated in Karanpur falling within the municipal area of Dehradun city. 3. Admittedly, the tenancy commenced with effect from 1.1.2008 @Rs.4500/- per month. On 31.7.2009, the landlord issued the notice terminating the tenancy and asking for the vacant possession of the property within 30 days from the date of receiving the notice. The tenant, replying such notice on 6.8.2009, has accepted that the notice sent by the landlord was received by him on 4.8.2009 but pleaded that a rent deed was executed between the parties on 17.12.2007 and as per the terms and conditions of that deed, the tenanted premises was given for at least three years. There was a further stipulation that if the tenant wanted to terminate the tenancy, then he will have to pay two months’ rent prior to the vacation of shop, in question, and on the other hand, if the landlord wanted to get the shop vacated, then he will have to issue two months’ notice in advance before seeking such eviction, and such notice could be issued only after expiry of three years. There was an additional clause that if the landlord ever wanted to sell the shop, then the tenant will have a right of preemption on the same. 4. Admittedly, this rent deed was never brought before the Trial Judge, rather the same has been produced on record as Annexure No.3 with the supplementary affidavit filed in the revision, nonetheless, mention of such deed was there in the reply of notice as well as in the written statement. It has also been admitted that such rent deed was an unregistered document. So, it was argued that the tenancy could not have been terminated before expiration of three years’ period, as it was one of the terms depicted in such deed. 5. In my opinion, the argument advanced by learned counsel for the revisionist does not hold any water for the reason that Section 17(1)(d) of the Registration Act, 1908 makes a provision that the ‘leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, shall compulsorily be registered. 5. In my opinion, the argument advanced by learned counsel for the revisionist does not hold any water for the reason that Section 17(1)(d) of the Registration Act, 1908 makes a provision that the ‘leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, shall compulsorily be registered. That apart Section 107 of the Transfer of Property Act, 1882 also envisages the process of making the lease and in so many words, it has been contemplated that a lease of an immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered document. At the same time, Section 49 of the Registration Act ponders on the effect of non-registration, providing that ‘no document required by Section 17 [or by any provision of the Transfer of Property Act] to be registered, shall affect any immovable property comprised thereon, if it has not been registered. 6. Learned counsel for the revisionist has emphatically argued that even if the lease deed was unregistered, it could have been read for collateral purposes, as has been manifested in the proviso of Section 49 of the Registration Act. This argument too is misconceived because the term ‘collateral purposes’ has been defined a number of times in various precedents and the law on the subject is clear to the effect that such an expression would not entail the terms and conditions of lease. In this regard, the law has been laid down by the Allahabad High Court in the case of ‘Mohd. Akram Husain and another v. Baijnath & another’ 2007 (1) ADJ 100 ; paragraph no.9 of the judgment is reproduced hereinbelow: - “9. In my opinion, the said document cannot be considered even for collateral purpose. An unregistered document may be admissible for collateral purpose for proving the nature and character of possession, but the same cannot be admitted for showing the terms and conditions of the contract for collateral purpose within the meaning of proviso to Section 49 of the Registration Act. The collateral purpose as indicated in the proviso to Section 49 of the Act has a limited scope and meaning. The document cannot be used for the purpose that it created or declared or assigned or extinguished a right in an immovable property. The collateral purpose as indicated in the proviso to Section 49 of the Act has a limited scope and meaning. The document cannot be used for the purpose that it created or declared or assigned or extinguished a right in an immovable property. Since, the document creates a right, title or interest, the same cannot be received as evidence to show the declaration of a right, title or assignment.” 7. In the similar way, the Division Bench of the Allahabad High Court has further laid down the law on the subject in the case of ‘Zarif Ahmed v. Satish Kumar’ [1982] 0 AWC 907. For the sake of convenience, paragraph no.18 is quoted below: - “18. For what we have said above, it follows that an unregistered lease deed cannot be admitted to prove the terms and conditions of the lease. Accordingly, it cannot be seen either for the purposes of the period of lease or the rate of rent at which the premises had been let out. A collateral purpose is any purpose other than of creating, assigning, extinguishing a right to immovable property.” 8. It has not been disputed that the rent of the tenanted premises was more than rupees two thousand, so the shop was not protected under the provisions of the U.P. Rent Control Act and in such eventuality, the law has been propounded by the Hon’ble Apex Court in the case of ‘M/s Payal Vision Ltd. v. Radhika Choudhary’ [2012] 9 JT 217. Paragraph no.6 of the judgment reads as under: - “6. In a suit for recovery of possession from a tenant whose tenancy is not protected under the provisions of the Rent Control Act, all that is required to be established by the plaintiff-landlord is the existence of the jural relationship of landlord and tenant between the parties and the termination of the tenancy either by lapse of time or by notice served by the landlord under Section 106 of the Transfer of Property Act. So long as these two aspects are not in dispute the Court can pass a decree in terms of Order XII Rule 6 of the CPC, which reads as under: “Judgment on admissions-(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. (2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn upon in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.” 9. So, in view of what has been aforementioned, I find that this rent deed cannot be taken into consideration for reading the terms and conditions stated therein. 10. Further, even for a moment, if the contention of learned counsel for the revisionist is considered for a moment that this suit was premature and could not have been initiated before the expiry of the term of lease and certainly not before the expiry of two months’ period since the date of issuance of notice, then also, I find such argument to be wholly unsubstantial for the reason that this objection (if any) had been come over because of the long protraction of litigation on account of the conduct of the tenant resisting such suit, and in this regard also, the law has been interpreted by the Hon’ble Apex Court in the case of ‘Vithalbhai Pvt. Ltd. v. Union Bank of India’ (2005) 4 SCC 315 , where, in paragraphs nos.9, 22 and 23, it was held that: - “9. In our opinion, a suit based on a plaint which discloses a cause of action is not necessarily to be dismissed on trial solely because it was premature on the date of its institution if by the time the written statement came to be filed or by the time the Court is called upon to pass a decree, the plaintiff is found entitled to the relief prayed for in the plaint. Though there is no direct decision available on the point but a few cases showing the trend of judicial opinion may be noticed. 22. Though there is no direct decision available on the point but a few cases showing the trend of judicial opinion may be noticed. 22. A suit of a civil nature disclosing a cause of action even if filed before the date on which the plaintiff became actually entitled to sue and claim the relief founded on such cause of action is not to be necessarily dismissed for such reason. The question of suit being premature does not go to the root of jurisdiction of the Court; the Court entertaining such a suit and passing decree therein is not acting without jurisdiction but it is in the judicial discretion of the Court to grant decree or not. The Court would examine whether any irreparable prejudice was caused to the defendant on account of the suit having been filed a little before the date on which the plaintiff's entitlement to relief became due and whether by granting the relief in such suit a manifest injustice would be caused to the defendant. Taking into consideration the explanation offered by the plaintiff for filing the suit before the date of maturity of cause of action, the Court may deny the plaintiff his costs or may make such other order adjusting equities and satisfying the ends of justice as it may deem fit in its discretion. The conduct of the parties and unmerited advantage to plaintiff or disadvantage amounting to prejudice to the defendant, if any, would be relevant factors. A plea as to non-maintainability of the suit on the ground of its being premature should be promptly raised by the defendant and pressed for decision. It will equally be the responsibility of the Court to examine and promptly dispose of such a plea. The plea may not be permitted to be raised at a belated stage of the suit. A plea as to non-maintainability of the suit on the ground of its being premature should be promptly raised by the defendant and pressed for decision. It will equally be the responsibility of the Court to examine and promptly dispose of such a plea. The plea may not be permitted to be raised at a belated stage of the suit. However, the Court shall not exercise its discretion in favour of decreeing a premature suit in the following cases: (i) When there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event; (ii) when the institution of the suit before the lapse of a particular time or occurrence of a particular event would have the effect of defeating a public policy or public purpose; (iii) if such premature institution renders the presentation itself patently void and the invalidity is incurable such as when it goes to the root of the Court's jurisdiction, and (iv) where the lis is not confined to parties alone and affects and involves persons other than those arrayed as parties, such as in an election petition which affects and involves the entire constituency. (See: Samar Singh v. Kedar Nath and Ors. 1987 Supp. SCC 663). One more category of suits which may be added to - where leave of the Court or some authority is mandatorily required to be obtained before the institution and was not so obtained. 23. In the case at hand, the act of the plaintiff filing the suit before 25.6.1984 cannot be said to be malicious or intended to overreach the Court. The defendant's reply dated 8.11.1983 prompted the plaintiff in filing the suit inasmuch as the plaintiff reasonably thought that a cloud was already cast on his entitlement to recover the property and he should promptly approach the Court. True, the defendant could have changed his mind and thought of delivering the possession of the property to the plaintiff on or after 25.6.1984, the date whereafter only the suit could ordinarily have been filed and in that case there would have been no occasion at all for filing the suit. The defendant filed its written statement much after that date. The objection as to maintainability of the suit was taken in the written statement. The defendant filed its written statement much after that date. The objection as to maintainability of the suit was taken in the written statement. If only it would have been pressed for decision and the Court would have formed that opinion at the preliminary stage then the plaintiff could have withdrawn the suit or the Court could have dismissed the suit as premature. In either case, the plaintiff would have filed a fresh suit based on the same cause of action soon after 25.6.1984. By the time the suit came to be decided on 12.2.1992, the dismissal of the suit on the ground of its being premature would have been a travesty of justice when the plaintiff was found entitled to a decree otherwise. The learned Single Judge rightly overruled the defendant's objection and directed the suit to be decreed. The Division Bench ought not to have interfered with the judgment and decree passed by the learned Single Judge.” 11. That apart, the conduct of the revisionist/ tenant has been highlighted by learned Trial Judge in the impugned judgment itself. The suit was presented on 29.9.2009 and after resisting the same by way of filing the written statement on expiry of four months, when the case was fixed for final hearing, the defendant did not turn up. So, the Court was constrained to proceed with the suit ex parte on 11.5.2011. Defendant woke up from slumber and requested for setting aside such ex parte hearing. On 9.2.2012, the Court acceded to his request and accordingly, set aside the order dated 11.5.2011. The opportunity was made available to the defendant to contest the matter but thereafter, he again became absent, so the Trial Judge was impelled to proceed with the matter for ex parte hearing on 13.8.2013. Revisionist again came in the Court after three months and requested for hearing the case on merits and this time too, the Court was lenient enough to recall the order dated 13.8.2013, but even thereafter, the defendant did not turn up ever even for cross-examining the plaintiff much less producing himself in the witness box. Therefore, the Court below had no option but to strike off his defence on 27.5.2014. Such order was never challenged and hence, the suit was decreed vide the impugned judgment and order dated 19.9.2014. Therefore, the Court below had no option but to strike off his defence on 27.5.2014. Such order was never challenged and hence, the suit was decreed vide the impugned judgment and order dated 19.9.2014. This conduct of the tenant, by itself, is sufficient to show that he was not interested to contest the suit on merits and all his intention was just to protract the litigation before the Trial Judge. In such a situation, if he now raises the contention of filing the suit prematurely, then it is wholly untenable and not acceptable to this Court. 12. Therefore, in view of what has been stated above, I do not find any force in this revision. The revision is, accordingly, dismissed. 13. Interim order dated 22.4.2015 stands vacated. 14. Let a copy of this judgment along with the LCR be sent back to the court below.