Delhi District Court
Rct/Arct No. 31/13 vs I. Sh. Charanjit Lal Mehra on 24 December, 2014
In the court of Ms. Ina Malhotra, District & Sessions Judge
South East : Saket Courts, New Delhi
RCT/ARCT No. 31/13
(ID No. 02406C0347702013)
i. Sh. V.K. Bhatnagar
S/o Late Sh. K.C. Bhatnagar
R/o A1, Gurudwara Road
NDSE, Part I, New Delhi
ii. Mrs. M.V. Bhatnagar
W/o Sh. V.K. Bhatnagar
R/o A1, Gurudwara Road
NDSE, Part I, New Delhi .... Appellants
V E R S U S
i. Sh. Charanjit Lal Mehra
S/o Late Sh. Devi Das Mehra
R/o Mehra Lodge, S555
Greater Kailash Part II, New Delhi.
ii. Dr. D.P. Kapur
(since deceased through his legal heirs)
a) Smt. Urmila Kapur W/o Dr. P.P. Kapur
R/o A1, Gurudwara Road
NDSE, Part I, New Delhi
b) Sh. Arun Kapur S/o Dr. P.P. Kapur
R/o A1, Gurudwara Road
NDSE, Part I, New Delhi ...... Respondents
Petition presented on : 16.12.2013
Arguments concluded on : 24.12.2014
Judgment on : 24.12.2014
RCT/ARCT No.31/13 V.K. Bhatnagar V. Charanjit Lal Page....1 of 11
J U D G M E N T
The appellants, as landlords of property no. A1, Gurdwara Road, New Delhi South Extension PartI, New Delhi, had filed an eviction petition alleging subletting by respondent no. 1 to respondent no.2 without their oral or written consent. Aggrieved by the dismissal of the petition, the same has been impugned before this court.
2. As per the appellants, respondent no. 1 had been inducted as a tenant in the suit premises w.e.f. 01.05.1974 vide an oral lease. The premises consists of a hall measuring 500 sq. ft. on a rent of Rs. 525/ per month.
3. The respondents, on the other hand, in their reply asserted that the said property had been leased out to Ashwani Kumar Mehra, Yashpal Mehra, Ashok Kumar Mehra and to Dr. P.P. Kapur, respondent no. 2 by way of a written lease dated 01.05.1974. A carbon copy bearing the signatures of the parties was produced in court. Notice under Order 12 Rule 2 CPC was served on the appellant/landlord for producing the original document and the appellants' failure to do so entitled the respondents to the benefit of presumption under section 89 of the RCT/ARCT No.31/13 V.K. Bhatnagar V. Charanjit Lal Page....2 of 11 Indian Evidence Act. It was the respondents' case that the original copy of the said document (lease agreement) was retained by the appellants while the first carbon copy was handed over to the lessees. Evidence was led by the respondent with respect to the signatures of the petitioners on the said document Ex. RW1/A to corroborate that vide the said document, respondent no. 2 (now deceased) was a colessee and therefore no case of subletting was made out.
4. Though the appellants also led evidence of another handwriting expert PW3 to contradict the findings of the respondent's witness RW5, the Ld. ARC vide a reasoned order accepted the proposition in favour of the respondents. The opinion of the court in respect of the handwriting expert does not call for any interference.
5. A reference to the chequered background of this case is also being taken note of. The appellants' eviction petition had initially been allowed on grounds of subletting vide Order dated 25.04.2011. In the appeal preferred by the respondents, the said order was set aside with direction to adjudicate upon the existence of Ex. RW1/A and its effect thereon.
RCT/ARCT No.31/13 V.K. Bhatnagar V. Charanjit Lal Page....3 of 11
6. The Ld. Trial Court based its decision on the copy of the Lease Deed Ex. RW1/A holding it to be a primary document and deeming it to be validly executed as per Section 89 of the Indian Evidence Act. Accordingly, the appellants' eviction petition was dismissed.
7. The said decision is assailed on grounds that the Ld. ARC erred in basing his decision on the carbon copy of the lease agreement Ex. RW1/A presuming it to be a valid document for the purpose of evidence. Ld. Senior Counsel for the appellants has argued that the presumption at best could be limited to the existence of a document, but the same could not be relied upon in evidence as it was neither stamped in accordance with law nor registered as per the statutory requirement.
8. The short point for consideration before this court is whether the document Ex. RW1/A could be presumed to be a duly stamped and registered document, merely because the appellants failed to produce the same on a notice under Order 12 Rule 2 CPC.
9. Given this background, this court is of the view that the presumption as per Section 89 of the India Evidence Act can RCT/ARCT No.31/13 V.K. Bhatnagar V. Charanjit Lal Page....4 of 11 only limited to the assertions made by the respondent in respect of a document, even if controverted by the appellants. The court cannot give its seal of universal approval to all presumptions irrespective whether the respondents have claimed them or not. The perusal of the WS on record reflects that the respondents had only claimed a written tenancy created on 01.05.1974 for the purpose of inducting four colessees in the suit premises for a period of five years. Failure of the appellants to produce the same gave rise to the presumption of its existence in favour of the respondent in respect of the existence of this document, carbon copy of which was produced in court. It cannot perse give rise to the presumption that it was also duly stamped and registered in accordance with law.
In the written statement filed by the respondent no such assertion was made by them. There was no assertion with respect to the document being duly stamped or who purchased the stamp paper or that it had been presented for registration. Had that been so, they would have applied for a certified copy from the Office of the Sub Registrar. It was never the respondent's case that it was either properly stamped or registered in RCT/ARCT No.31/13 V.K. Bhatnagar V. Charanjit Lal Page....5 of 11 accordance with law. Under such circumstances, even if the original of this document was produced in court, it could not have been tendered in evidence.
10. Ld. Senior Counsel for the appellant has submitted that for a document to be relied upon in evidence, it has to be properly stamped and registered. Notwithstanding the fact that such an objection was not raised at the time of exhibiting the said document, the same could be raised at any stage including in the appellate proceedings. He has relied upon the decision of the Apex Court in the matter of R.V.E. Venkatachala Gounder V. Arulmigu Viswesaraswami & UP Temple & Another reported i n 2003(8) Scale 474 to fortify his arguments.
11. It is further argued by the Ld. Senior Counsel for the appellant that the document Ex. RW1/A though presumed to have been executed, could not be presumed to have crossed the bar of Section 35 of the Indian Stamp Act or Section 49 of the Indian Registration Act. If a document is not properly stamped it ought to have been impounded by the concerned court and sent to the Collector to be stamped in accordance with law. The document which is not stamped cannot be looked into at all for all purposes. RCT/ARCT No.31/13 V.K. Bhatnagar V. Charanjit Lal Page....6 of 11 He has relied upon the decision of the Apex Court in the matter of Avinash Kumar Chauhan V. Vijay Krishna Mishra reported in (2009) 2 SCC 532. The Apex Court while laying down the law on this point also relied upon its decision in the matter of Pandey Oraon V. Ramchander Sahu reported in 1992 Suppl (2) 77 and Amrendra Pratap Singh V. Tej Bahadur Prajapati reported in (2004) 10 SCC 65.
12. It is further contended on behalf of the appellants that it is only after the hurdle of Section 35 of the Stamps Act is overcome that a document has to cross the bar under Section 49 of the Registration Act. If the document is stamped in accordance with law, then and then only, can such a document for want of registration be looked into for the purpose of collateral purposes. It has emphatically been argued that who the parties to the agreement were would not fall within the category of 'collateral purposes', as no interest could be created in favour of any lessee nor a right transferred from the lessor to the lessee without registration of the lease document. In support of his arguments, he has relied upon the decision of K.B. Saha and Sons Pvt. Ltd. V. Development Consultant Limited reported in (2008) 8 SCC RCT/ARCT No.31/13 V.K. Bhatnagar V. Charanjit Lal Page....7 of 11
564. A collateral transaction is independent and divisible from the transaction which the law requires registration of. A collateral transaction is one which by itself does not require to be registered. However, any right title or interest in an immovable property of a value of more than one hundred rupees requires registration and if unregistered, would be inadmissible in evidence. None of the terms of an unregistered document, specially in respect of a right created thereunder can be admitted in evidence. The Apex court had laid out this dicta in the case of K.B. Saha (Supra) that who the tenant is in the suit premises, being an important term of lease agreement, could not be looked into in an unregistered document.
13. Applying the decision of the Apex Court to the facts of the present case, this court holds that while the presumption with respect to the execution of a document Ex. RW1/A can be given effect to in favour of the respondents, the presumption that it was also registered and duly stamped cannot be done in the absence of the respondent's even raising such a plea. The Ld. ARC has transgressed its jurisdiction and erred in holding that the same was adequately stamped and registered as per the statutory requirements. That being so, since it is neither the respondents' RCT/ARCT No.31/13 V.K. Bhatnagar V. Charanjit Lal Page....8 of 11 case nor can it be presumed that the document was duly registered, it could be at best looked into for the purpose of collateral parties. The factum of whether respondent no.2 was a tenant or a subtenant is not a "collateral purpose". No right, title or interest of a lessee could have been transferred in his favour for want of registration of the document in the light of the provision of Section 49 of the Registration Act. This apart, not being adequately stamped creates a bar under Section 35 of the Indian Stamp Act to even look into or rely upon the document for any purpose including a collateral one. Under such circumstances it cannot be said that the respondents have proved that there was no subletting or that respondent no.2 was one of the original tenants.
14. It is further contended by the Ld. Senior Counsel for the appellant that the best way of having shown the creation of tenancy in favour of respondent no. 2 would have been by way of receipts or acceptance of payment made by him. No evidence in this respect has been led by the respondents to confer the right of being colessee.
15. This court, therefore finds merit in the arguments on behalf of the appellant. The document relied upon for the purpose RCT/ARCT No.31/13 V.K. Bhatnagar V. Charanjit Lal Page....9 of 11 of dismissing the eviction petition has to be rejected outrightly, as no presumption can be granted to its being validity stamped and registered. The dismissal of the eviction petition therefore suffers from legal infirmity. The Ld. Trial court transgressed its jurisdiction in relying upon the said document for adjudication of the case.
16. Appeal is allowed and order of eviction against the respondent is passed under section 14(1)(b) of the Delhi Rent Control Act.
17. Copy of order along with TCR be sent back. File be consigned to Record Room.
Announced (Ina Malhotra) District & Sessions Judge South East, Saket Courts New Delhi 24.12.2014.
RCT/ARCT No.31/13 V.K. Bhatnagar V. Charanjit Lal Page....10 of 11
RCT/ARCT No. 31/13
Present : Counsel for the parties
Vide separate judgment, appeal is allowed in terms thereof and order of eviction against the respondent is passed under section 14(1)(b) of the Delhi Rent Control Act.
Copy of order along with TCR be sent back. File be consigned to Record Room.
(Ina Malhotra) District & Sessions Judge South East, Saket Courts New Delhi 24.12.2014.
RCT/ARCT No.31/13 V.K. Bhatnagar V. Charanjit Lal Page....11 of 11