Delhi High Court
Shruti Enterprises vs Daya Nand on 9 May, 1996
Equivalent citations: 1996IIAD(DELHI)661, 63(1996)DLT68, 1996(38)DRJ168, 1996RLR267, 1996 A I H C 4397, (1997) 1 ICC 157, 1996 WLC(RAJ)(UC) 267, (1996) 63 DLT 68, (1996) 38 DRJ 168, (1997) 1 RENCJ 314, (1996) 2 RENCR 203
JUDGMENT J.K. Mehra, J.
(1) This is a revision petition filed by the. tenant M/s Shruti Enterprises against the order of first appellate Court of Shri Raghuvir Singh, Senior Civil Judge. In brief, the case of the petitioner is that the tenanted premises situated at 9A, Hauz Khas, New Delhi have been let out to the petitioner firm vide lease deed dated 1st February 1991 for the commercial purposes including that of using the demised premises as a restaurant or for any other allied purposes. Some. of the relevant clauses which were referred to by the parties in the present case read as under: "(I)THE Lessee Hereby agrees with the Lessor as follows:- (a) ......... (b) ......... (c) ......... (d) At all times during the said term to use and occupy the demised properly for commercial purposes and not to carry on or permit to be carried on any ostensive or prohibited trade or business in the said premises. (e) ......... (f) The lessee undertake to affect repairs, white washing every year and distempering of the leased premises, polishing of the wood work, painting etc. at the leased premises, after every alternate year. (g) The lessee shall be entitled to sublet, part with or assign the demised premises or any part thereof in favour of M/s Alisha Enterprises or any one else and shall also be entitled to enter into any kind of partnership franchise agreement and shall also he further entitled to grant the sub-license in favour of any person in order to carry on any commercial business in the. demised premises."
(2) The Lessor hereby agrees with the lessee as follows:
(A).......... (b) .......... (c) The lessee shall be entitled to use the demised premises as a restaurant or for any allied purposes. (d) .......... (e) The Lessee shall be free to install air conditioner, air conditioning ducts, Dg Sets, computers and allied plant and/or fix partitions at their own costs."
"THE Parties Herein Do Hereby Further Agree As UNDER: 1. The Lessee has also taken on lease a portion of properly No. T-12/2 from Smt Saroj Bala W/o Shri Daya Nand (the lessor herein) which is at the lower level and which portion about the demised premises by ground floor of this premises and first floor of premises No. T-12/B and that there is no division well between the ground floor of this premises and first floor of premises No. T-12/B and that there is no division wall between the ground floor of this premises and first floor of premises No. T-12/B. The Lessor undertakes not to raise any wall in between the ground floor of premises No. 9-A & First floor of premises bearing No. T-12/B and the lessee shall be entitled to use the same as one and common hall." "SCHEDULE Referred To ABOVE. All that premises on the ground floor from the side of Village Haus Khas, New Delhi, in properly No. 9-A, Village Haus KJias, New Delhi, comprising of L-Shaped Hall with toilets except two shops towards the cast of the premises of tenancy, as shown enclosed in the plan attached hereto together with common staircase and the right of way through the passage falling in remaining portion of property No. 9-A leading to the main street of village Haus Khas, New Delhi as shown enclosed in the plan attached hereto." It is stated that the petitioner had undertaken certain renovations in the property for making it suitable for running a restaurant. The petitioner had undertaking fixing of cyramictiles in the toilet and in the main hall and was putting up partition to separate the cooking area from rest of the hall and fixing the Earthern Oven (Tandoor) for Bar-he- queuing the food and fixing a glass so that customers can see through. When the work was half way through, the respondent approached the Civil Court seeking an injunction to restrain the petitioner from carrying out any such alterations/additions on the plea that the same were beyond the authority of the petitioner given to them under the Agreement of Lease. The Civil Court alter hearing both the parties and examining the term of lease declined interim injunction. Against the said order of the Civil Judge, the respondent went in appeal. The first appellate Court after hearing the parties reversed the order of the Civil Judge and granted an injunction. Both the Courts below have proceeded on the basis of the terms of the aforesaid alleged lease. The respondent tried to argue that new pipeline was being laid for the bathroom where none existed earlier. However, the report of the Local Commissioner who was appointed to inspect the site and the photographs filed do not support the contention of the petitioner that a new pipe was being laid. The First Appellate Court based its decision on very strict construction of the language of various clauses of the lease.
(3) I have given a careful thought to the lasts appearing on the face of record of the Trial Court including the report of the Local Commissioner. An important fact which appears to have escaped attention of the Courts below and counsel for the parties is that the lease in question is neither on a stamp paper of requisite value nor it is registered. It is a lease for nine years and has not been registered as it appears from the photocopy on the record of the Trial Court. Under Section 17(1)(d) of the Registration Act, registration of a document granting lease for more than one year is compulsory. If such a document is not registered, then under the provisions of Section 49 of the said Act, it cannot be taken into consideration as evidence of the conditions therein and can be looked into only for the collateral purposes or such purposes, as arc permitted under the proviso to Section 49 of the Registration Act. Section 49 of the said Act reads as under:- "49. Effect of non-registration of documents required to be registered No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall - (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received evidence of any transaction affecting such property or conferring such power, unless it has been registered: Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter Ii of the Specific Relief Act, 1877 (1 of 1877), or as evidence of part performance of a contract for the purposes of Section 53-A of the Transfer of Property Act, 1882 (4 of 1882), or as evidence of any collateral transaction "not required to be effected registered instrument. A reference be made in this connection to the case of Rai Chand Jain Vs.Chander Kama Khosla, reported as . For that reason also, this document cannot be looked into for the enforcement of any right thereunder except for the collateral purpose of ascertaining the purpose of letting or to determine whether a party is in occupation of the premises as a tenant or not. The Trial Court as well as the First Appellate Court have gone into great details of the various conditions of the lease. Since the original document has not been placed on record, I am unable to impound the copy because it is only the document which could be impounded and not its copy. But impounding would only have cured the consequences of understanding. Even after curing the deficiency in the stamp duly, the said document of lease could not be used as evidence of the terms contained therein for want of registration except to the limited extent permissible under the proviso to Section 49 of Registration Act. Both the Courts below have fallen into error and proceeded on the wrong premises and have embarked upon an exercise to interpret various clauses of the lease deed and to ascertain what was permissible thereunder and what was not. A perusal o! the document for the limited purpose only shows that the properly was lei out for commercial purpose including running of a restaurant. In the absence of any other clause being available to any party for enforcement, their rights would be governed by the provisions of Transfer of Properties Act. Section 108(o) of Transfer of Properties Act permit such alterations as would make possible to the tenant to use the premises for the purpose for which it is purported to have been let. In the present case, it was admittedly let out for running a restaurant and for carrying out other commercial activities therefrom. The construction undertaken by the tenant has to be such as would be reasonable provided it is for the purpose for which properly was intended to be used. In this connection, a reference be made to the case of Pitamber Das Kalyanji Vs. Dattatraya Krishnaji, reported as , where it was held as under- it is not every act done by the tenant which would amount to breach of Section 108(o) of the Transfer of Properties Act merely because some change or waste is suffered by the premises. An act, which a person of ordinary prudence using his own property would commit, is not waste although it damages the property. An act of the Lessee is reasonable provided it is for the purpose for which the property was intended to be used. An act done by the Lessee would amount to willful destruction if it is done with the intention and knowledge that such user would damage the property. The knowledge could be attributed to the Lessee provided the defects in the properly are patent and not latent. Neither the fact of the damage nor the evidence that act of the Lessee has resulted in damage, is sufficient by itself to warrant a conclusion."
(4) In the above case, the tenant had constructed a cooking platform for the better enjoyment of the property and on an action being brought, the Court held against the landlord. It further observed as follows;- "THE question whether the structure is of permanent character or not, must depend upon the facts of every case. There can be no rigid and hard and fast rule or formula defining a permanent structure. But there are certain factors which arc required to be taken into consideration to determine whether a structure is of a permanent character. The nature of the structure and the purpose of annexation of the intention of the party in putting up the structure are two important factors to be considered to answer the issue."
(5) In the case of Rawal Singh Vs. Kwality Stores am another, reported as Air 1986 Delhi 236, it was held as under:- "Attendant is entitled to make adjustment in the demised premises to make them suitable to his requirements, and the landlord cannot be heard to take exception to them, and that too after the lapse of a long period, when no damage, impairing the premises and material alteration has resulted which cannot be restored back to the original position by the tenant at his own cost whenever he vacates the same. No order of removal at this stage is, therefore, called for."
(6) In Hallshury Law of England Volume 27 para 280, it has been observed, "It seems that an act docs not constitute waste unless it is in fact injurious to the inheritance, either by diminishing the value of the estate, or by increasing the burden upon it, or by impairing the evidence of title. At any rate, in the case of acts which may be technically waste but in fact improve the inheritance (meliorating waste), the Court will not interfere to restrain them by injunction, nor will they be a ground of forfeiture under a proviso for re-entry on commission of waste. In another case of Jnan Ranjan Sen Gupta & Ors. Vs. Amn Kumar Bone, reported as , the Hon'ble Supreme Court upheld the right of the tenant who was given the tenancy for no purpose other than keeping of the lorries as carriage. The tenant had put up certain structures without the permission of the landlord. The Hon'ble Supreme Court after examining the provisions of Section 108(o) came to the conclusion that the tenancy in question does not militate against the construction of structure and use of land for the purpose of workshop for maintenance of lorries by the tenant. A garage is a building where water vehicles are used. The tenant has not used the land for purpose other than ihe purpose for which it was leased. In the present case, there being no dispute whatsoever of the intention of the parties to the effect that the premises were let out for use as a restaurant, the tenant could carry out all renovations or alterations permissible under Section 108 for better enjoyment of the leased premises. In the case of Manmohan Das Shah & Ors. Vs. Bishun Das, reported as , the Court was concerned with the interpretation of the expression "material alteration". There, they decided in favour of the landlord only basing their judgment on the specific covenant in the lease deed. I have already observed hereinabove that for lack of registration, the lease deed in question, which is for a term exceeding one year, cannot be looked into except for the purposes mentioned in proviso to Section 49 of the Registration Act. The Hon'ble Supreme Court in this case had dealt with the expression "material alteration" and had said that the expression "material alteration" in its ordinary meaning would mean important alterations such as those which materially or substantially change the front or the structure of the premises. It may be that such alterations in a given case might not cause damage to the premises or its value or might not amount to an unreasonable use of the leased premises or constitute a change in the purpose of the lease. In the case of Hyman & Anr. Vs. Rose, reported as 1912 Ac 622, the Court decided in favour of the lessee on the ground that the alterations even though material carried out by the lessee had not done any wrong to any one and the reversion was in no way injured. In the present case also, I find it difficult to conceive any premises being used as a restaurant and without a proper kitchen. It was conceded by counsel for the respondents that the lessee could carry out renovations and that the lessor would have no objection even to the replastering of the pillers, tiling of floors and plastering and tiling of walls, but had serious objections to the digging of floor and fixing of Tandoors. Mr. Mishra, on instructions, has undertaken that the petitioner shall restore at its cost the premises in the original shape at the lime of vacating the premises. I cannot accept that the renovations being carried out are in any way harmful to the premises or prejudicial to the respondents. Such renovations include providing in the premises a kitchen with a bar- be-que. facility in Indian style (Earthern Oven) (Tandoor), which is a common installation in most of the Indian restaurants. Mr. Mukul Rohatgi pointed out that what was permitted by the landlord was only fixing of partitions, which meant partitioning the premises by removable partitions. Be those of any material, they could be pre-fabricated concrete, wooden or of sections of any other material. Instead in the present case, the lessee appears to be erecting brick partition separating the kitchen from the main hall. From the photographs, it appears that in front they wish to install a big glass through which the customers visiting restaurant can see the chef carrying out the cooking including bar-be-queue work. As already noticed, counsel for lessee has undertaken that at the time of handing over the possession, they will restore the premises to their original shape at their own cost. They have further undertaken that except for the alterations and renovations being carried on, which is for better utilisation of the space as a restaurant, they shall not carry out any other alteration. They will also fully repair and lay proper flooring in the premises.
(7) In the light of the above discussion, I consider that the impugned decision of the First Appellate Court cannot be sustained and it is, therefore, set aside. The Revision Petition is allowed and injunction stands vacated. No order as to costs.