Karnataka High Court
Dr. S.M. Suresh vs G.P. Vamana Rao on 18 November, 2004
Equivalent citations: ILR2005KAR904
Author: K. Sreedhar Rao
Bench: K. Sreedhar Rao
JUDGMENT K. Sreedhar Rao, J.
1. The case is at the stage of admission and the Counsel argued the matter on merits for final disposal.
2. The defendant is the appellant in the suit. The respondent-plaintiff filed a suit for declaration and possession of the suit schedule property. According to plaintiff, an unregistered agreement was entered into between the parties. By the terms of which, the defendant was to be in possession for a period of five years. As a consideration for such possession, the defendant has to pay to the plaintiff a sum of Rs. 1,60,000/- as interest free deposit. On the completion of five years, the amount of Rs. 1,60,000/- to be refunded and the defendant to re-deliver possession to the plaintiff. Upon completion of the period of five years, the suit is filed.
3. It is pertinent to note that certain developments with regard to the unregistered agreement have taken place in the course of trial. In the first instance, the marking of the document is disallowed for want of registration. In the second attempt, the trial Court permitted marking of the document. A Writ Petition was filed in WP No. 21859/2004. This Court by the conditional order permitted the plaintiff to make good the duty and penalty as required under Section 34 of the Karnataka Stamp Act within the time fixed. In the event of failure on the part of plaintiff directed that the documents shall be rejected as inadmissible in evidence. The plaintiff filed a memo giving the calculation of the penalty liability and requested the Court to permit him to pay the penalty. The trial Court by order dated 21.7.2004 rejected the request in the memo on the ground that the calculation and collection of the stamp duty is within the jurisdiction of the registering authority and not the duty of the Civil Court. After passing the said order, the trial Court pronounced the judgment, allowed the suit and directed the defendant to deliver possession within three months from the date of this order. Further, directed an enquiry into the damages/mesne profits for the unauthorised occupation from the date of suit till delivery of possession.
4. During the pendency of the suit, the plaintiff has also deposited Rs. l,63,000/-and odd. The trial Court directed the defendant to withdraw the amount in deposit and to deliver the possession.
5. In this appeal, it is strenuously contended by Sri. M.B.Naragund that the suit was solely based upon the unregistered document, when the said document is not marked, the Court had no jurisdiction to have granted any relief in terms of the document. Nextly, it is argued that the terms of the document are in essence a mortgage transaction, despite non-registration, it is incumbent on the plaintiff to file a suit for redemption and not a suit for possession.
6. The order of the trial Court in not permitting the plaintiff to pay the duty and penalty is illegal. It is within the jurisdiction of the Civil Court to collect the duty and penalty in respect of insufficiently stamped document when produced in evidence. Therefore it is necessary that the trial Court should have accepted payment of the duty and penalty.
The defendant admits all the terms of the document in his written statement. Therefore, on the basis of the admitted facts and terms, it cannot be said that the court has no jurisdiction to grant relief, when the document is not marked.
7. The contention that the transaction in question is a mortgage, despite non-registration the plaintiff has to file suit for redemption is an untenable argument. Otherwise, to hold an unregistered document as a mortgage would amount to negating the provisions of Section 17 of the Registration Act. The document unless it is registered cannot create any interest in the immovable property as per the provisions of Section 17. Therefore, the possession of the defendant should be construed only as permissive possession. The present suit for possession is perfectly is in accordance with law. It is impermissible to contend that the plaintiff should file a suit for redemption when there is no legal mortgage.
8. The unreported decision of this Court in Civil Revision Petition No. 3698/97 between R. RAGHU v. N.VIJAYA KUMAR, C.R.P. N0. 3698/97 dated 18.11.97 and HRRP No. 150/98 between K.REDDY RAJA v. P.SHANTILAL and Anr., HRRP No. 150/98 dd. 4.1.2000 dated 4.1.2000 and the decision in HANU BAID v. ANANTHAPADMANABHA, have no application to the facts on hand. In ILR 1992 it is stated that when there is an unregistered and insufficiently stamped document there cannot be oral evidence to corroborate the terms of the document. In the other two decisions it is held that unregistered document was not being used for collateral purpose but for enforcing the terms of the document.
9. It is contended that the appellant is using the premises for his hospital activity. The plaintiff has made his intention known that he would re-construct the building and re-let the premises, in that event on equitable considerations it is argued that the plaintiff be directed to re-let the proportionate area after reconstruction at market rent. The Respondent is not agreeable for the proposal.
10. The relief sought for by the appellant is virtually in the nature of re-entry. In the Karnataka Rent Control Act 1961, there was a specific provision enabling the right of re-entry to the tenants under certain conditions whereas in the T.P. Act there is no statutory right of re-entry recognised in law. When the plaintiff is not willing to re-let the premises after reconstruction, the court has no jurisdiction to compel the plaintiff to re-let to the defendant.
11. Counsel for the appellant lastly submitted that keeping in view the hardship and equitable considerations a reasonable time of three years be granted for delivery of possession. The Counsel for the respondent submitted that the appellant is running a private Nursing home in a three storied building, he can shift his activity from the rented premises to his own building without any hardship or inconvenience. Therefore the request for three years' time is totally unreasonable.
12. The Direction to effect enquiry into mesne profits/damages appears to be an untenable relief granted by the trial Court. The plaintiff has deposited Rs. 1,63,000 and odd in the court about six months prior to the filing of the appeal on 1.1.2004. As per the terms of the unregistered transactions he retained the money with him till 1.1.2004. Therefore, question of seeking mesne profits / damages would not arise in equity until he has complied his obligation of repayment at the time of filing of the suit.
13. For the foregoing reasons and discussions made above, the appeal is partly allowed. The direction for delivery of possession and right of defendant to withdraw the amount in deposit is Rs. 1,63,000/- is confirmed . The direction for enquiry into mesne profits/damages set aside. Keeping in view the convenience of both the parties, it is directed the defendant shall delivery the vacant possession within three months from the date of this order. Parties shall bear their own costs. As directed the decree in the appeal to be drawn after collection of duty and penalty as directed above.