Shri Prasaram S/O. Damduji Amte vs Shri Deepak S/O Madanmohan Gupta ...
2017 Latest Caselaw 4922 Bom

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  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            NAGPUR BENCH, NAGPUR

                     WRIT PETITION NO.3270 OF 2016

Shri Prasram s/o Damduji Amte,
Age 57 years, Occupation : Business,
R/o Ram Kirana Stores, Plot No.333,
Behind Dr. Kirti Tanna Hospital,
Darodkar Chowk, Central Avenue,
Nagpur.                                                     .... Petitioner

       -- Versus -

01]    Shri Deepak s/o Madanmohan Gupta,
       Age 37 years, Occu. Lawyer,
       R/o 91, Vardhaman Nagar, Nagpur.

02]    Sau. Nutan w/o Krushnakumar Gupta,
       Age 40 years, Occu. Housewife,
       R/o 91, Vardhaman Nagar, Nagpur.

03]    Smt. Vinita w/o Prakashchandra Gupta,
       Age 44 years, Occu. Housewife,
       R/o 91, Vardhaman Nagar, Nagpur.               .... Respondents

                                 with
                     WRIT PETITION NO.3271 OF 2016

Shri Prasram s/o Damduji Amte,
Age 57 years, Occupation : Business,
R/o Ram Kirana Stores, Plot No.333,
Behind Dr. Kirti Tanna Hospital,
Darodkar Chowk, Central Avenue,
Nagpur.                                                     .... Petitioner

       -- Versus -

01]    Shri Deepak s/o Madanmohan Gupta,
       Age 37 years, Occu. Lawyer,
       R/o 91, Vardhaman Nagar, Nagpur.




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02]    Sau. Nutan w/o Krushnakumar Gupta,
       Age 40 years, Occu. Housewife,
       R/o 91, Vardhaman Nagar, Nagpur.

03]    Smt. Vinita w/o Prakashchandra Gupta,
       Age 44 years, Occu. Housewife,
       R/o 91, Vardhaman Nagar, Nagpur.                          .... Respondents

Shri Nitin B. Bargat, Advocate for the Petitioner.
Shri Anand Jaiswal, Senior Advocate with Shri M. Anilkumar,
Advocate for the Respondents.

                CORAM           : KUM. INDIRA JAIN, J.

                DATE            : JULY 24, 2017.


COMMON JUDGMENT :-


                Rule. Rule made returnable forthwith.                  Heard finally

with the consent of the learned Counsel for the parties.

02] As challenge in both the petitions is identical, they are

disposed of by this common judgment.

03] The facts giving rise to the petitions may be stated in

brief as under :

i. Petitioner is the tenant. Respondents are landlords.

Petitioner was inducted in the premises in 1993 by

original landlady Smt. Vidya Joshi. After the demise of

landlady, her son Sunil Joshi stepped into her shoes.

ii. Respondents purchased the property in 2008 from

Sunil Joshi. Since then, petitioner was the tenant of

respondents.

iii. Respondents filed two civil suits for ejectment and

possession of disputed property. R.C.S. No.82/2014

was for ejectment and for recovery of possession

under Section 16(1)(g) of the Maharashtra Rent

Control Act, 1999 (hereinafter referred to as 'the Rent

Control Act' for short) on the ground of bona fide

need. Another R.C.S. No.343/2015 was based on

Section 15 of the the Rent Control Act on the ground

of default in payment of rent.

iv. It was the case of respondents that their family

comprises of three brothers, parents and children.

The existing house at Vardhaman Nagar was not

sufficient for their requirement. Therefore, they

purchased the property from Sunil Joshi for self

occupation and residence. According to plaintiffs,

plaintiff no.1 is a practicing advocate and is in need of

disputed premises for the purpose of his office.

Plaintiff no.2 also requires disputed premises for

running tuition classes. It was submitted that

defendant was owner of shop block situated at

Gayatri Palace Apartment, near Ayachit Mandir,

Nagpur and he did not require the suit shop block.

v. In R.C.S. No.343/2015, contention of plaintiffs was

that after purchase of the property in 2008, petitioner

agreed to pay Rs.500/- per month at the beginning of

tenancy. The tenancy was as per English Calendar on

month to month basis. According to the plaintiffs,

defendant/tenant failed to pay agreed rent since

17/10/2008 and remained in arrears of Rs.35,500/- as

outstanding. Notice was issued to defendant on

04/04/2014. Though defendant received the notice,

he failed to comply and pay the arrears of rent. In the

light of the above pleadings, plaintiffs claimed decree

for eviction, possession and arrears of rent against the

defendant. Both the suits came to be decreed by the

trial Court.

vi. Appeals were preferred before the District Court. On

28/10/2015, First Appellate Court modified the

quantum of rent and upheld the findings recorded by

the trial Court regarding eviction and possession of

the tenanted premises by the defendant. So far as

the suit based on bona fide need is concerned, appeal

came to be dismissed.

vii. Being aggrieved by the concurrent findings of the

Courts below, these two petitions have been filed by

the tenant against the landlords.

04] Heard Shri Nitin Bargat, learned Counsel for petitioner

and Shri Anand Jaiswal, learned Senior Counsel for respondents.

Learned Counsel for the petitioner submits that lease-deed dated

07/10/2008 was duly proved by the defendant. From the said

lease-deed, it can be seen that it was a lease in perpetuity. It is

submitted that without considering the vested rights of

petitioner and without appreciating duly proved lease-deed in

proper perspective, the Courts below committed an error and

held that the suit premises were required to be evicted and

possession was to be delivered to the respondents.

05] Another contention raised on behalf of petitioner is

that by virtue of provisions of Section 55(1) of the Rent Control

Act, compulsory requirement of registration of leave and license

agreement would indicate that it was obligatory on landlords to

get the agreement registered. Learned Counsel submits that

tenant was not responsible for not getting the agreement

registered and in view of failure of landlords to comply with the

statutory requirements, the terms and conditions of unregistered

agreement can be gone into and can be read in evidence. In

support of submissions, learned Counsel placed reliance on the

decision of the Hon'ble Supreme Court in Vishal N. Kalsaria vs.

Bank of India & ors. - [2016(2) ALL MR 920 (S.C.)] and of

this Court in Raj Prasanna Kondur vs. Arif Taher Khan &

others - [2005(4) Bom.C.R. 383].

06] Per contra, Shri Anand Jaiswal, learned Senior Counsel

for respondents submitted that supervisory jurisdiction in Article

227 of the Constitution of India is exercised for keeping the

subordinate courts within the bounds of their jurisdiction and

when a subordinate Court has assumed a jurisdiction or has

failed to exercise its jurisdiction, which it does have or the

jurisdiction though available is being exercised by the Court in a

manner not permitted by law and failure of justice or grave

injustice has occasioned thereby, the High Court may step in to

the exercise its supervisory jurisdiction. Learned Senior Counsel

submits that terms and conditions of an unregistered lease-deed

cannot be read in evidence though the same can be used for

collateral purpose and this being the clear position of law, the

trial Court was absolutely justified in holding that unregistered

lease-deed cannot be read in evidence and the terms and

conditions of the unregistered lease-deed can not be gone into.

According to the learned Senior Counsel, the observations of the

first Appellate Court are in clear ignorance of the provisions of

the Registration Act to the extent that terms and conditions of

lease deed can be read in evidence. It is submitted that the

observations per se against the provisions and mandates of law

can be negatived and rectified in writ jurisdiction.

07] The next submission on behalf of respondents is that

under Section 107 of the Transfer of Property Act, lease created

from year to year or for any term exceeding one year or

reserving a yearly rent can be only by a registered lease-deed.

The reference is also made to the provisions of Section 17(1)(d)

of the Registration Act relating to leases of immovable property

from year to year, or for any term exceeding one year, or

reserving a yearly rent. Learned Senior Counsel submits that

under Section 17 of the Registration Act, registration of such a

lease is compulsory and consequence of non-registration are

found in Section 49 of the Act. The submission is that lease in

the present case is an unregistered document and by virtue of

Section 49 can be used only for collateral purpose and not

beyond the scope of Section 49 of the Registration Act. In

support of submissions, learned Senior Counsel pressed into

service judgments of the Hon'ble Supreme Court in Shalini

Shyam Shetty & anr vs. Rajendra Shankar Patil - [2010(8)

SCC 329] and Park Street properties Private Limited vs.

Dipak Kumar Singh & anr. - [(2016) 9 SCC 268].

08] With the assistance of the learned Counsel for the

parties, this Court has gone through the impugned judgments

and orders. Learned Counsel for petitioner could not

demonstrate that the trial Court while appreciating the evidence

adduced by the parties committed an error of law or manifest

error apparent on the face of record. True, the first Appellate

Court while appreciating the lease-deed between petitioner and

respondents observed that when plaintiffs failed to get lease-

deed [Exh.16] registered as per Section 55(2) of the Rent Control

Act, contention of tenant about the terms and conditions subject

to which premises have been given to him by landlord on leave

and licence shall prevail, unless proved otherwise.

09] Section 55 of the Rent Control Act deals with the

tenancy agreement to be compulsorily registered. Sub section 2

of Section 55 of the Act is relevant here. It reads thus :

"The responsibility of getting such agreement registered shall be on the landlord and in the absence of the written registered agreement, the contention of the tenant about the terms and conditions subject to which a premises have been given to him by the landlord on leave and licence or have been let to him, shall prevail, unless proved otherwise."

10] From sub-section 2 of Section 55 of the Rent Control

Act, it can be seen that registration of agreement is required to

be at the behest of landlord and otherwise burden to prove

tenancy or licence is on the tenant. Section 55(2) of the Rent

Control Act can not be read in isolation and has to be read in

conformity with the provisions of Section 17 of the Registration

Act. Section 17 of the Registration Act refers to the documents

of which registration is compulsory. Sub-section (1)(d) relates to

leases of immovable property from year to year, or for any term

exceeding one year, or reserving a yearly rent.

11] Under Section 107 of the Transfer of Property Act such

as lease is to be made only by a registered instrument. So far as

the effect of non-registration of lease-deed is concerned, Section

49 in clear and unambiguous words speaks that it can be used

only for collateral purpose. It means, the factum of tenancy and

possession if disputed between landlords and tenant can be

considered even on the basis of unregistered lease-deed, but

when it touches the terms and conditions of lease-deed the

same can not be admitted and read in evidence.

12] In view of the above settled legal position, this Court

finds substance in the submission of learned Senior Counsel for

respondents that the observations made by the first Appellate

Court regarding terms and conditions of an unregistered lease-

deed are per se against the law and error or law having brought

to the notice needs to be corrected in writ jurisdiction.

13] In the present case, landlords have proved by cogent

and overwhelming evidence their bona fide requirement and

default on the part of tenant to pay rent regularly. On the other

hand, tenant could not establish that it was a lease in perpetuity.

The tenant has failed to demonstrate any perversity or illegality

in the findings recorded by the trial Court granting decree for

eviction and possession to the respondents. As such, no

interference is warranted in writ jurisdiction. Hence, the following

order :

ORDER

I. Writ Petition Nos.3270/2008 and 3271/2008 are dismissed.

II. Rule stands discharged.

III. No order as to costs .

(Kum. Indira Jain, J.)

At this stage, learned Counsel for petitioner submits

that interim order passed by this Court on 15/06/2016 be

continued for a period of four weeks.

Learned Senior Counsel for respondents states that

the Court may pass an appropriate order.

On merits and particularly on the grounds on which

decree for eviction and possession came to be passed, petitioner

is not entitled to continuation of interim relief. However, to avoid

denial of an opportunity, four weeks' time is granted on

petitioner's submitting an undertaking that in case he fails, he

would vacate the suit premises after four weeks.

*sdw                                      (Kum. Indira Jain, J.)