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2024 DIGILAW 1642 (MAD)

M. Ali v. Dibyendu Choudhur

2024-07-19

S.SOUNTHAR

body2024
JUDGMENT : S. SOUNTHAR, J. 1. These Review Applications are filed seeking to review the order passed in C.R.P.(NPD)Nos.4224 and 4225 of 2018. 2. The main Civil Revision Petitions are arising out of Rent Control proceedings. The review applicant/ landlady filed petitions for eviction on the ground of wilful default and also for fixation of fair rent. Both the petitions filed by the review applicant were dismissed by the Rent Controller on the ground that there was no jural relationship of landlord and tenant. Aggrieved by the same, the review applicant preferred two Rent Control Appeals and the same were partly allowed by setting aside the findings of the Rent Controller with regard to the jural relationship. However, the appellate authority confirmed the dismissal of the eviction petition. The appeal filed against the dismissal of fair rent petition was allowed by fixing fair rent at the rate of Rs.61,850/- per month. Aggrieved by the same, the main revision petitions were filed by the respondent. 3. This Court, by the order sought to be reviewed, held that there was no jural relationship between the parties and consequently, allowed the Civil Revision Petitions. 4. The learned counsel appearing for the review applicant in support of his prayer for review raised the following points: i) The learned counsel by taking this Court to the order passed by the Hon’ble Apex Court in S.L.P.(C)No.16073 of 2022 submitted that while dismissing the Special Leave Petition, challenging the decree for specific performance, the Hon’ble Apex Court permitted the SLP petitioner to work out his remedies in regard to the alleged arrears of rent due from the respondent herein in accordance with law. Therefore, it is the submission of the learned counsel that the Hon’ble Apex Court upheld the jural relationship of landlord and tenant and only as a consequence liberty was granted to the SLP petitioner to work out his remedies with regard to the alleged arrears of rent. ii) The learned counsel submitted that the sale agreement relied on by the respondent herein was unregistered one and hence, the same cannot be taken into consideration for the purpose of deciding extinguishment of jural relationship. ii) The learned counsel submitted that the sale agreement relied on by the respondent herein was unregistered one and hence, the same cannot be taken into consideration for the purpose of deciding extinguishment of jural relationship. iii) The learned counsel further submitted that there is no express provision in the sale agreement absolving the respondent from paying rent to the review applicant and therefore, under Section 111 of “The Transfer of Property Act, 1882” (hereinafter referred to as “TP Act” for the sake of convenience) determination of lease cannot be presumed. 5. The Special Leave Petition referred by the learned counsel for the review applicant was filed challenging the decree obtained by the respondent / revision petitioner for specific performance of sale agreement. While dismissing the Special Leave Petition, the Hon’ble Apex Court observed as follows: “After hearing learned senior counsel for the parties, we are not inclined to interfere with the decree directing specific performance. We are of the view that the respondent should pay a sum of Rs.3 lakhs (Rupees Three Lakhs only) more. Accordingly, we modify the impugned decree by directing that the respondent shall deposit a sum of Rs.3 lakhs more within a period of one month from today in the trial Court. We further leave it open to the petitioner to work out his remedies in regard to the alleged arrears of rent due from the respondent in accordance with law.” 6. A perusal of the above said order would indicate that the applicant therein was given liberty to work out his remedies in regard to the alleged arrears of rent due from the respondent therein in accordance with law. The learned counsel for the review applicant vehemently contended that the jural relationship was admitted before the Hon’ble Apex Court and hence, the petitioner was granted liberty to work out his remedy regarding rent. There is nothing in the SLP order to suggest admission of jural relationship between the parties. In fact, the Hon'ble Apex Court used the word “alleged arrears of rent”. If the landlord tenant relationship was admitted, there was no need to use the expression alleged rent. Therefore, the jural relationship was very much under dispute and that was the reason while granting liberty, the Hon’ble Apex Court used the word “alleged rent”. In fact, the Hon'ble Apex Court used the word “alleged arrears of rent”. If the landlord tenant relationship was admitted, there was no need to use the expression alleged rent. Therefore, the jural relationship was very much under dispute and that was the reason while granting liberty, the Hon’ble Apex Court used the word “alleged rent”. Therefore, it is clear that the questions with regard to the existence of jural relationship and the alleged rent due etc., have been left open by the Hon’ble Apex Court in the said order. Therefore, I hold that there is no impediment for the Rent Controller to decide the jural relationship and questions relating to alleged rent due etc., in the proceeding pending before him. Therefore, the first contention made by the learned counsel for the review applicant is rejected. 7. The learned counsel for the review applicant by relying on Section 17 (1-A) of the Registration Act, 1908 submitted that the sale agreement relied on by the respondent to infer extinguishment of jural relationship was unregistered document and therefore, the same cannot be relied on as it was inadmissible in evidence. Section 17 (1-A) of the Registration Act, 1908 reads as follows: “ 17. Documents of which registration is compulsory ........ [(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53-A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53-A.]” 8 . A close scrutiny of the above provision would make it clear that unregistered sale agreement subsequent to Registration and Other Related Laws (Amendment) Act, 2001 (Act 48 of 2001) shall have no effect for the purpose of Section 53-A of the TP Act. Therefore, an un- registered sale agreement subsequent to the amended provision is inadmissible in evidence only for the purpose of part performance of contract as enshrined under Section 53-A of the TP Act. In this regard, it would be appropriate to refer to the decision of the Division Bench of this Court in K. Manoharan Vs. T. Janaki Ammal, 2012 (3) CTC 205 . In this regard, it would be appropriate to refer to the decision of the Division Bench of this Court in K. Manoharan Vs. T. Janaki Ammal, 2012 (3) CTC 205 . The relevant observation reads as follows: “38. It is not as if all the agreements for sale referring to instance of delivery of possession shall be compulsorily registered under Section 17(1-A) of Indian Registration Act. Only when the Agreement for Sale which speaks about delivery of possession is filed to claim benefit of “part performance” as contemplated under Section 53-A of Transfer of Property Act, Court will have to find out whether the document was registered or not. If such document was not registered, then the benefit of Section 53-A of Transfer of Property Act cannot be claimed by the prospective purchaser of the property. [Vide R. Palanisubramanian Vs. Trans Medica (India) Ltd. and another, AIR 2009 Mad 110] . We fully endorse the said views of the learned Single Judge.” 9. In the case on hand, the sale agreement was relied on only for the purpose of inferring determination of the tenancy arrangement between the parties. It was not taken into consideration for enforcement of any right or liability under Section 53-A of the TP Act. The respondent herein has not sought for enforcement of any right under doctrine of part of performance. In such circumstances, the recitals in unregistered sale agreement can be taken into consideration to decide whether there was any implied determination of tenancy arrangement and Section 17 (1-A) of the Registration Act, 1908 is not a bar, as bar created under the said Section is limited to Section 53-A of the TP Act. Hence, the second contention of the learned counsel for the review applicant is also rejected. 10 . The learned counsel for the review applicant by relying on Section 111 of the TP Act submitted that lease or tenancy arrangement can be determined only as contemplated under the said Section. He further submitted that when there is no express provision in the sale agreement absolving the respondent from paying rent, it shall be treated the earlier jural relationship of landlord and tenant continues. In this regard, the learned counsel relied on the judgment of the Hon’ble Apex Court in H.K. Sharma Vs. Ram Lal, (2019) 4 SCC 153 . 11 . Section 111 of TP Act reads as follows: “ 111. In this regard, the learned counsel relied on the judgment of the Hon’ble Apex Court in H.K. Sharma Vs. Ram Lal, (2019) 4 SCC 153 . 11 . Section 111 of TP Act reads as follows: “ 111. Determination of lease .—A lease of immoveable property determines— (a) by efflux of the time limited thereby; (b) where such time is limited conditionally on the happening of some event—by the happening of such event; (c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event—by the happening of such event; (d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right; (e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them; (f) by implied surrender; (g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease; (h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.” 12 . In the case oh hand, there is no express provision in the sale agreement absolving the respondent from paying rent to the review application. Section 111 (f) of TP Act provides that determination of lease may be by implied surrender. In the facts and circumstances of the case, we have to see whether implied surrender can be inferred. In the order sought to be reviewed, after considering the entire evidence available on record, this Court has come to the conclusion that the parties never intended to continue the landlord tenant relationship after entering into sale agreement. In the facts and circumstances of the case, we have to see whether implied surrender can be inferred. In the order sought to be reviewed, after considering the entire evidence available on record, this Court has come to the conclusion that the parties never intended to continue the landlord tenant relationship after entering into sale agreement. The said finding is based on implied surrender of tenancy. In the order sought to be reviewed, the following three reasons are given for coming to the conclusion that parties never intended to continue the jural relationship: (i) Out of sale consideration of Rs,24,27,000/-, the review applicant received a sum of Rs.18,92,065/- which was equivalent to 80% of the total sale consideration. If the parties really wanted to continue the earlier relationship of landlord and tenant, in spite of payment of 80% of the sale consideration, they would have certainly incorporated an express clause in the sale agreement, burdening the respondent to pay rent till execution of sale agreement. ii) It is not in dispute, after entering into the sale agreement, the respondent never paid the rent. There was no explanation on the part of the review applicant herein why she kept quiet till December 2007 (2 ½ years) without making any demand for payment of rent. The first legal notice was issued by the review applicant demanding payment only on26.12.2007. iii) The respondent issued a notice under Ex.R1 dated 25.04.2005 mentioning the adjustment of rental advance of Rs.1,50,000/- towards the sale consideration payable under the sale agreement. He also asserted in the said notice that he was in possession of the petition mentioned property under the agreement in view of payment of substantial sale consideration. In spite of said assertion by the respondent, the review applicant failed to give any reply denying assertion of the respondent and two years thereafter, issued Ex.P4 notice. 13 . By taking into consideration all these factual aspects, this Court came to the conclusion that the parties intended to put an end to the jural relationship by entering into sale agreement. The said conduct of the parties would amount to implied determination of the lease arrangement as contemplated under Section 111(f) of the TP Act. Hence, the case law relied on by the applicant in H.K. Sharma's case (cited supra) will not advance her case in the peculiar facts of this case and conduct of the parties. The said conduct of the parties would amount to implied determination of the lease arrangement as contemplated under Section 111(f) of the TP Act. Hence, the case law relied on by the applicant in H.K. Sharma's case (cited supra) will not advance her case in the peculiar facts of this case and conduct of the parties. Therefore, the third contention raised by the learned counsel for the review applicant is also rejected. 14. It is settled law scope of the review application is very very limited and the review applicant is not entitled to re-argue the matter or raise entirely new points in the review applications, in the absence of any error apparent on the case on record. For the reasons stated above, I am not inclined to review the order passed by this Court in C.R.P.(NPD)Nos.4224 & 4225 of 2018, dated 10.01.2024. 15. Accordingly, these Review Applications are dismissed. 16. Consequently, connected miscellaneous petitions are closed. There shall be no order as to costs.