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2020 DIGILAW 505 (ALL)

Jaiveer Sharma v. Saba Ara

2020-02-14

PIYUSH AGRAWAL

body2020
JUDGMENT : 1. Heard Shri Rahul Sahai, learned counsel for the revisionist – defendant and Mohd. Arif, learned counsel for respondent – plaintiff. 2. The present SCC revision is directed against the judgement & order dated 30.10.2019 passed by the Additional District Judge, Court No. 13/SCC Judge, Agra in SCC Case No. 01 of 2018; whereby, the SCC suit filed by the respondent – plaintiff – landlord for recovery of arrears of rent and eviction of the petitioner – defendant – tenant from the property in dispute has been allowed. 3. It has been averred that the respondent – plaintiff – landlord instituted an SCC Suit for payment of arrears of rent, ejectment and mesne profit. The respondent – plaintiff was running a hotel in the name of “Mumtaz Bila”. On account of her going to Kuwait, she let out the hotel in question to the revisionists – defendant on 01.03.2016 determining the rate of rent for the first year at Rs. 5 lacs per annum; whereafter, the same was to be paid at the rate of Rs. 50,000/-per month. It is further averred that Rs. 1 lac was paid, in cash, for the first year and remaining Rs. 4 lacs was paid through two separate cheques, of which the said cheques were bounced on 28.10.2016, which was declined to be honoured by the revisionist – tenant. 4. Accordingly, a notice dated 15.11.2017 was sent by the respondent – landlord terminating the tenancy of the revisionist – defendant. In spite of the service of notice, the revisionist – defendant – tenant failed to file any written statement. Accordingly, the matter was directed to be proceeded ex parte against the revisionist – defendant vide order dated 09.05.2018. The ex parte order dated 09.05.2018, was recalled on 02.04.2019. Vide order dated 21.05.2019, the revisionist – defendant was non-suited under Order VIII, Rule 10 CPC, as he failed to submit the written statement. After perusal of the records, the learned Additional District Judge, vide judgement & decree dated 30.10.2019, directed ejectement of the revisionist – defendant from the property in dispute, against which, the present revision has been filed by the defendant – revisionist. 5. After perusal of the records, the learned Additional District Judge, vide judgement & decree dated 30.10.2019, directed ejectement of the revisionist – defendant from the property in dispute, against which, the present revision has been filed by the defendant – revisionist. 5. Learned counsel for the revisionist – defendant submits that since the agreement, on the strength of which the tenancy is claimed by the respondent – plaintiff – landlord, is for a period of 10 years, but the same is an unregistered agreement under the Indian Stamp Act, 1899 and hence, the same cannot be read in evidence. It is further submitted that as per section 35 of the Indian Stamp Act, the agreement in question is not admissible in evidence. He further submitted that there was no occasion for the court below to non-suit the revisionist – defendant by adopting a procedure under Order VIII, Rule 10 of CPC against the revisionist – defendant. 6. Learned counsel for the respondent – plaintiff – landlord has defended the impugned order by contending that the order impugned has been passed in accordance with law and after following due process of law. He further submits that the revisionist – defendant has not denied, anywhere, that he has not taken the property in question to use the same as tenant on the basis of monthly rent to be paid by him, but in spite of the said fact, no payment of rent has been paid by the revisionist – defendant. Even the cheques, which were being given to the respondent, were bounced. Therefore, the revisionist – defendant was in default in making payment of rent of the property in dispute. It is further submitted that in spite of the notice having been served upon the revisionist – defendant, no payment of outstanding rent has been made and the revisionist has failed to brought on record any material to show that he had paid the rent from 01.03.2016. 7. The Court has perused the record. 8. It is admitted to the parties that the property in dispute was being used by the revisionist – defendant. Learned counsel for the revisionist has tried to bring to the notice of this Court that the agreement was for a period of 10 years, but the same was unregistered agreement, which is inadmissible in evidence under the provisions of the Indian Stamp Act. Learned counsel for the revisionist has tried to bring to the notice of this Court that the agreement was for a period of 10 years, but the same was unregistered agreement, which is inadmissible in evidence under the provisions of the Indian Stamp Act. But the said agreement can still be read for colateral purpose for providing the nature and character of the possession of the person occupying the premises thereunder. The person, who holds over the premises in question under the unregistered agreement, has to pay monthly rent holding over as a tenant from month-to-month. 9. In the instant case, the agreement was for a period exceeding one year and therefore, the agreement, being unregistered, is inadmissible in evidence, but the revisionist – defendant – tenant has not disputed that he is occupying the premises in question. A person, who holds over under an unregistered agreement and continues in possession, has to pay monthly rent holding over as a “tenant” from month-to-month. 10. The revisionist – defendant has utterly failed to bring on record the documents showing the payment of month-to-month rent of the premises in question. Only a bald averment has been made with regard to payment of rent in cash. It has come on record that the revisionist – defendant is in occupation of the premises in question without paying rent and the same is still outstanding. 11. In view of the aforesaid facts and circumstances of the case, the impugned judgement & decree does not suffer from any illegality and hence, no interference is called for by this Court. 12. The SCC revision is, accordingly, dismissed.