Madras High Court
T.H. Mohammed Firdous And Ors. vs Amichand And Ors. on 1 February, 2007
Author: R. Banumathi
Bench: R. Banumathi
ORDER R. Banumathi, J.
1. In this revision, landlord challenges the Order of Rent Control Appellate Authority in R.C.A. No. 289/1994 on the file of VII Judge, Small Causes Court, Madras, dated 12.02.1997, reversing the Order of eviction made by the Rent Controller dated 30.03.1993, in RCOP No. 864/1988, on the file of XIV Judge, Small Causes Court, Madras.
2. The Petitioners are co-owners of the Petition premises in D. No. 7, Kasi Chetti Street, George Town, Chennai. The Respondents were Tenants in respect of third floor, on a monthly rent of Rs. 1,650/-. Petitioners/ landlords filed eviction Petition under Sections 10(2)(ii)(a) and 10(2)(ii)(b) of Tamil Nadu Buildings [Lease and Rent Control] Act, 1960, [in short, 'the Act'], on the grounds of unauthorized subletting and different user. According to the Petitioners, Petitioners' Power Agent permitted the Respondents to accommodate their relatives temporarily for a short period on humanitarian grounds. But the premises had been sublet without written consent of the landlords. After issuing notice, Eviction Petition was filed.
3. The Respondents resisted the Eviction Petition contending that tenancy was for residential as well as for non-residential purpose, right from inception of the tenancy. The Respondents claimed that there was a written lease Agreement between Hamid Sultan, Power Agent of the Petitioners, and the Respondents are permitted subletting and there was no different user. The Respondents contended that Eviction Petition was counter blast to the Permanent Injunction suit filed by the Tenants against the Petitioners in the City Civil Court and there is no bonafide on the part of the Petitioners.
4. In consideration of the evidence, Rent Controller ordered eviction on the ground of unauthorized subletting. The Rent Controller found having taken the premises for residential purpose, the Respondents/Tenants used the premises for non-residential purpose and ordered eviction on the ground of different user also.
5. Aggrieved by the Order of eviction, Respondents/ Tenants preferred appeal before the Appellate Authority. Before the Appellate Authority, an unregistered document, purporting to be Lease Deed was produced and received as additional evidence. On the basis of the said unregistered document, Appellate Authority held that subletting is in terms of the lease Agreement and there is no unauthorized subletting. The Appellate Authority further held in the absence of any evidence regarding the purpose for which the premises was let out, the averments of Different User was not acceptable.
6. Assailing the impugned Order, the learned Counsel for the Petitioners submitted that the Appellate Authority erred in admitting the unstamped and unregistered document to establish permission for subletting, which is an essential term of the lease. It was further submitted that any amount of knowledge or acquiescence would not take the place of written consent. Contending that subletting is to be construed strictly, the learned Counsel placed reliance upon [Singer India Ltd., v. Chander Mohan Chada and Ors.]. Arguing further, the learned Counsel urged that under Section 49, Registration Act, unregistered document cannot be looked upon for any purpose and Appellate Authority erred in receiving the document for proving subletting.
7. Onbehalf of the Respondents, the learned Senior Counsel Mr. Venkatapathi has submitted that Ex.R-2, Lease Deed permits subletting and the Tenants had consent of the landlord for subletting. It was further submitted that the Lease Deed does not stipulate any period and the same is to be construed as monthly lease and the Lease Deed does not require registration. Placing reliance upon a number of decisions, the learned Senior Counsel submitted that though the document Ex.R-2 requires registration, it could be looked into for collateral purposes for ascertaining nature of possession of third parties in occupation.
8. Having regard to the rival submissions, the following questions fall for consideration:
(i)Whether an unstamped and unregistered document could be received for the purpose of proving consent of the landlord for subletting?;
(ii)Whether the Appellate Court was right in reversing the Order of eviction on the basis of additional document produced in the Appellate Court without affording opportunity to the Petitioners/landlords
9. The Respondents had become Tenants under Hamid Sultan, father of the Petitioner. Landlord-Tenant relationship is not in dispute. According to the Petitioners, the Respondents have become Tenants in 1974. On the other hand, the Respondents claim that they have become Tenants from 1973.
10. In the Eviction Petition, the Petitioners/landlords claim "Power of Attorney Agent of the Petitioners granted permission to accommodate the friends of the Respondents temporarily for a short period on humanitarian grounds" and the Respondents have unauthorisedly sublet the premises. When the landlord has filed Petition for eviction of the Tenants, the burden was on the landlord to prove all the ingredients, which entitle him to seek eviction. Where the eviction sought is on the ground of subletting, the onus to prove the subletting is on the landlord. Admittedly, strangers are in the occupation of the premises. Section 10(2)(ii)(a) clearly prohibits the lessee from transferring his right under the lease or to sublet the building or part of it, without the written consent of the landlord.
11. According to the Respondents, premises has been sublet with the written consent of the landlord. In such cases, burden will be on the Tenant to prove that it is done so with the permission of the landlord. Tenants have pleaded that they had the consent to sublet. In such a case, burden of proof is on the Respondents. Authorisation or permission to sublet should be in writing and in the absence of permission in writing, the Tenant must suffer an Order of eviction.
12. Before the Rent Controller, the Respondents raised plea that they had the consent of the landlord for subletting. In their counter affidavit, the Respondents have averred "...that there is written lease Agreement between Hamid Sultan and Respondents and subletting is provided and permitted in the lease Agreement itself...". Though Tenants have taken a specific plea of consent of the landlord for subletting under written lease Agreement, before the Rent Controller, the Respondents have not produced a written lease Agreement. Placing reliance upon [Bajaj Auto Ltd. v. Behari Lal Kohli], the Rent Controller held that the consent of landlord must be in writing and in the absence of written consent, the Tenant has to suffer an Order of eviction.
13. Only before the Appellate Authority, the Tenants have produced an unregistered Lease Deed dated 01.01.1973, along with application M.P. No. 577/1994 to receive additional evidence. In the supporting affidavit, the Respondents have averred that during enquiry in the Rent Control proceedings, an Agreement was sought to be filed but the same was objected to and hence it was not received by the Rent Controller. The Appellate Authority has accepted the documents without affording any opportunity to the landlords as to the unregistered/unstamped document. The Appellate Authority has adopted erroneous approach in allowing the appeal based on the additional evidence without affording any opportunity to the landlords.
14. No doubt, an appeal is a continuation of the original proceedings and the Appellate Authority would therefore, have all the powers which the Rent Controller had when he was hearing Petition as original authority. Option is given to the Appellate Authority to make further enquiry either personally or through the Controller. The Appellate Authority can permit additional evidence if it feels for the purpose of proper disposal of the appeal, additional evidence is required.
15. Merely because the Appellate Authority has all the powers of the Rent Controller, it cannot convert itself into a Rent Controller. The question of admitting additional evidence need to be considered only when the available evidence was not sufficient for the proper disposal of the dispute. When the Tenant sought to mark a vital document - Lease Deed, by way of additional evidence before the Appellate Authority after trying to mark the very same document before the Rent Controller, the Appellate Authority was not justified in admitting the same as additional evidence.
16. For receiving the unregistered Lease Deed as additional evidence, the Appellate Authority has not recorded any reasons. No reasoning are recorded that the document was produced before the Rent Controller and the Rent Controller was not justified in declining to admit it as additional evidence. Even according to the Tenants, the Rent Controller refused to receive the same. While so, the Appellate Authority is expected to have recorded the reasoning why it is receiving the document as additional evidence. As held in [Henry v. Rao], consideration of justice and public policy require that a party who succeeds should not at appellate stage be faced with new grounds of attack. Section 23(4) deals with not only finality of the Order passed by the Appellate Authority and the Controller but also lays down an indictment against such orders being questioned in any Court of law except in the manner provided under Section 25. When the scope of revision is very limited, the Appellate Authority ought to have exercised the power under Section 23 in a judicious manner in receiving the additional evidence. Receiving of Lease Deed, vital to the defence plea of subletting, as additional evidence by the Appellate Authority is improper.
17. Once a document has been admitted in evidence, it is not open either to the trial Court or to a Court of appeal or revision to go beyond that Order. On behalf of the Respondent, the learned Senior Counsel has contended that once Ex.R-2 has been marked as Exhibit, Revision Petitioner/ landlord cannot urge this Court to review or revise the Order of the Appellate Authority in admitting the document. No doubt it is true that objection as regards admissibility of a document specifically require be taken that it was not duly stamped. Only on such objection, the question requires to be determined judiciously. If in the lower Court no objection had been made in regard to the admissibility of the said document, at a later stage, parties cannot be permitted to turn round and contend that the said document is inadmissible in evidence.
18. As noted earlier, M.P. No. 577/1994 was filed before the Appellate Authority and Ex.R-2 - unstamped Lease Deed was straight admitted. Revision Petitioner/landlord was not heard on that document. There had been no determination as regards sufficiency of the stamp duty paid on the instrument. In [Ram Rattan [dead] by Legal Representatives v. Bajrang Lal and Ors.], the Supreme Court has held when the document is taken in evidence with an endorsement that "objected, allowed subject to objection", the objection was not judicially determined and the document was merely tentatively marked and in such a situation, Section 36 would not be attracted. Ram Rattan's case, is an authority for the proposition that the party objecting to the admissibility of the document must raise an objection so as to enable the trial Judge to determine the issue upon application of his judicial mind at the appropriate stage.
19. What was necessary was that the document must be marked in the presence of the parties and they had an opportunity to object to marking of the document. Question of judicial determination of the matter would arise, provided an objection is taken when document is tendered in evidence and before it is marked as exhibit in the case. In the case on hand, there is nothing on record to show that Revision Petitioner/landlord had opportunity to raise the objection. In that case, it is not open to the Tenant to contend that the landlord cannot raise objection regarding the admissibility of Ex-R-2 in the revision stage.
20. Assuming that the Appellate Authority was right in receiving the Lease Deed as an additional evidence, let us consider the document itself. Unregistered Lease Deed dated 01.01.1973 is purported to be between T.K. Hamid Sultan and the Respondents - Hazari lal & Amichand. As per the terms of the lease, monthly rent is Rs. 1,100/- payable on or before 10th of succeeding month. On subletting the said Lease Deed contains the following covenant:
That the lessees aforesaid are at liberty to sublet any portion of the said third floor to any third party on any rent suitable to them.
Laying emphasis on the above, the learned Senior Counsel Mr. Venkatapathi submitted that by producing Ex.R-2, Respondents have discharged the onus cast on them in proving the consent of the landlord for subletting. In response to the above arguments, the learned Counsel for the Petitioners submitted that Ex.R-2 being unstamped and unregistered cannot be relied upon for any purpose, much less to establish permission to sublet, which is the essential term of the lease.
21. Unregistered lease or Agreement of lease is inadmissible under Section 49, Registration Act. Section 91, Indian Evidence Act forbids any other evidence of the Agreement being given. Unregistered Lease Deed is not admissible to prove tenancy or its terms thereof, like consent for subletting or length of the term of lease etc. and unregistered Lease Deed, which is inadmissible under Section 49, Registration Act to prove the lease, cannot be used for proving the consent of the landlord for subletting nor can such consent of the landlord be proved by oral evidence.
22. The learned Counsel placed reliance upon [Bajaj Auto Ltd. v. Behari Lal Kohli], in which the Supreme Court has laid down that a term regarding permission to sublet in a unregistered Lease Deed cannot be relied upon. The Supreme Court has held thus:
Moreover, the clause of the Lease Deed could not looked into for want of registration. It could not also be said that so far as the consent of the landlord permitting subletting was concerned, it did not require registration and the clause, therefore, must be excepted from the requirement of registration and consequent exclusion from evidence. The question whether a lessee was entitled to create a sub-lease or not was undoubtedly a term of the transaction of lease, and if it was incorporated in the document it could not be disassociated from the lease and considered separately in isolation. If a document was inadmissible for non-registration, all its terms were inadmissible including the one dealing with landlord's permission to his Tenant to sublet.
23. It is well settled that previous consent of the landlord for subletting is essential. Section 10(2)(ii)(a) of the Act clearly prohibits subletting by Tenant without the written consent of the landlord. Emphasizing on written consent of the landlord for subletting, in [Shalimar Tar Products Ltd. v. H.C. Sharma and Ors.], the Supreme Court has held as follows:
It is necessary for the Tenant to obtain the consent of the landlord in writing to subletting of the premises. The mere permission or acquiescence will not do. The consent must be to the specific subletting and must be in writing. The requirement that consent should be in writing cannot be regarded as directory as the requirement of consent to be in writing is intended to serve a public purpose, i.e., to avoid dispute as to whether there was consent or not. As this requirement of the statute is in the public interest, there cannot be any question of waiver of a right, dealing with the rights of the Tenants or the landlord.
24. In a case arising between West Bengal Premises Tenant Act, holding that mere knowledge or acceptance of rent cannot defeat the landlord's right for ejectment, in 1993 AIR SCW 731 [Pulin Behari Lal v. Mahadeb Dutte and Ors.], the Supreme Court has held as follows:
4. A perusal of the above provisions clearly shows that when there was no previous consent in writing of the landlord for creation of sub-tenancy it shall be a ground for eviction in terms of Section 13(1)(a) of the Act. Even incase of creation of such sub-tenancy with the consent of the landlord in writing it was necessary to follow the further procedure prescribed under Section 16(1) of the Act. Mere knowledge and/or acceptance of rent cannot defeat the landlord's right to get a Decree for ejectment on the ground do subletting.
25. The learned Senior Counsel Mr. Venkatapathi has contended that under Ex.R-2, rent is payable on or before 10th of succeeding month and it is a monthly lease which does not require registration under Section 107 of the Transfer of Property Act and placed reliance upon the following decisions -
(i) AIR 1931 (2) Lahore 501 Kidar Nath v. Dungarmal and sons
(ii) Sahabzad Mir Mohd. Ali Khan v. Hakim Khaji Shafi Hasan
(iii) Maharajsingh and Anr. v. Prem Narain and Ors.
26. In AIR 1931 (2) Lahore 501, the suit was for damages for use and occupation of premises and in those factual context, Lahore Court has held that the unregistered Lease Deed is admissible for the purpose of establishing what damages the landlord suing for arrears of rent is entitled to by way of rent. In the second decision cited supra, case before the Andhra Pradesh High Court was also a suit for recovery of rent on the basis of the rental Agreement and in those peculiar factual situations, the Court has stated that unregistered Lease Deed could be looked into for determining as to the quantum of rent payable. In the third decision cited supra, the case before Madhya Pradesh High Court was a suit for ejectment and the document relied upon was a "rent note" executed by Tenant for creating monthly tenancy of rent of Rs. 3/- p.m. In that context, the Madya Pradesh High Court has held that "rent note" not being covered by Section 17(1)(d) of the Registration Act, its registration is not compulsory and the document does not come within the mischief of Section 107 T.P. Act and there is no question of it being hit by Section 49. None of the above three decisions are applicable to the facts of the case in hand.
27. The learned Senior Counsel Mr. K. Venkatapathy contended that though Ex.R-2 is an unregistered document, the document can certainly be looked into to ascertain the intention of the parties, which is collateral in nature. In support of his contention, the learned Senior Counsel placed reliance upon the following decisions:
[Rai Chand Jain v. Chandrakanta Khosla];
2000 MLJ 126 [Lakshmikanthan and Ors. v. Gani Mohammed and Ors.];
1973 (86) MLW 451 [Gangayya and Anr. v. Mandan Chand Samdaria and Ors.];
[Vadasseri Tharawattil Karnavan v. Manager Ittichathara Valia Mannadiar];
[Vidya Wati v. Hans Raj];
[Bhajanlal Ganga Nath v. Jagdish Prasad].
28. We need not refer to all the decisions which reiterate the well settled principle of collateral purpose as to when Courts can look into the unregistered documents for collateral purpose. By a catena of decisions, it is well settled that the documents which are inadmissible for want of registration may sometimes be admissible for any collateral purpose i.e. for any purpose other than that of creating, declaring, assigning, limiting or extinguishing right to immovable property. Subletting is transfer of limited right of Tenant under the lease. The clause of subletting cannot be dissociated and considered separately in isolation. Any authority or consent for subletting cannot be said to be for collateral purpose. A lease Agreement which is inadmissible for want of registration cannot be looked into for proving sub-tenancy. The Appellate Authority erred in accepting the contention of the Tenants that they had consent of the landlord for subletting on the basis of Ex.R-2 - unregistered Lease Deed. The conclusion of the Appellate Authority accepting the sub-lease on the basis of inadmissible document without affording opportunity to the landlord is erroneous and the same is to be reversed.
29. Different User:
The premises was let out to the Respondents for residential purpose. In his evidence, RW-1 has admitted that at the time of inception of tenancy, he was in occupation of the demised premises for residential purpose. Subsequently, the Respondents have converted the same for non-residential purpose by running their money lending business in the premises. In his evidence RW-1 has stated that he was running the business in the name "Gandhi Trading Company" in No. 22, Elephant Gate, Chennai and subsequently, shifted the business to the demised premises. When the building was let out for residential purpose, using the premises for money lending amount to premies being put to different user.
30. Contending that for user of the building for running the business the landlords have not raised any objection, the learned Senior Counsel submitted that it must be deemed that the landlord has accepted other than residential user. In support of his contention, the learned Senior Counsel placed reliance upon [D.C. Oswal v. V.K. Subbiah and Ors.]. In the said case, no objection was raised by the landlord for more than seven years and in that context, the Supreme Court has held that the landlord has accepted other than residential user. In the case on hand, such wrong user for different purpose and acquiescence has not been established. In fact, during cross examination, PW-1 was not questioned about such different user and acquiescence by the landlords.
31. Contending that even if change of user is proved, Petitioners have to prove that they suffered detriment by such a change of user, the learned Senior Counsel placed reliance upon the following decisions:
AIR 1998 2 CTC 25 A. Gurusami v. A. Jacob and 3 Ors.
AIR 1979 2 SCC 274 Sant Ram v. Rajinder Lal and Ors.
D.C. Oswal v. V.K. Subbiah and Ors.
Gudial batra v. Raj Kumar Jain Mohan Lal v. Jai Bhagwan When the premises is used for business purposes, the landlord will necessarily be subjected to higher electricity charges and other charges. The residential premises would be visited with customers of the Respondent's business which would definitely cause prejudice to the landlord. When the premises has been let out for residential purpose, use of the premises for business will certainly amount to different user, even though the landlords have not produced material showing higher charges.
32. On behalf of the Tenants, argument was advanced that the requirement is not a bonafide requirement and that earlier in 1983, the landlords have issued a notice for eviction and at that time, no action was taken by the landlord which shows lack of bona fide. Issuance of earlier notice in 1983 does not preclude landlords from taking steps for eviction in 1985, nor does it suggest lack of bonafide.
33. The findings of the Rent Controller are based on materials and in proper appreciation of evidence. The Rent Controller has ordered eviction on both the grounds of subletting and different user. The Appellate Authority has erred in reversing the findings on the basis of inadmissible document. Perversity is writ large on the reasonings and findings of the Appellate Authority. The Order of the Appellate Authority is liable to be set aside, restoring the Order of eviction passed by the Rent Controller.
34. In the result, the Order made in RCA No. 289 of 1994 on the file of VII Judge, Small Causes Court, Madras is set aside and this Revision Petition is allowed. The Order of eviction passed by the Rent Controller in RCOP No. 864/1988 on the file of XIV Judge, Small Causes Court, Madras, is confirmed. No costs. Consequently, CMP is also dismissed.
31. The learned Counsel for the Respondents/Tenants requested time to vacate and hand over vacant possession. In consideration of the submissions, two months time from the date of this Order is granted for vacating and handing over the vacant possession to the Petitioners/landlords.