K Momin Bai, Hyd vs Sri. M.No. Subramaniam, Hyd
2022 Latest Caselaw 64 Tel

             HON'BLE SMT.JUSTICE P.SREE SUDHA

                  CRP No.3930 and 5113 of 2015

                      COMMON       JUDGMENT


1.    These Civil Revision Petitions are preferred by the petitioner

aggrieved by the orders dated 27.07.2015 passed in R.A.Nos.173

and 91 of 2013 on the file of the learned Additional Chief Judge,

City Small Causes Court, Hyderabad, confirming the order dated

06.08.2013 in R.C.No.473 of 2008 on the file of the learned II

Additional Rent Controller, City Small Causes Court, Hyderabad,

and the order dated 07.05.2013 in R.C.No.453 of 2008 on the file

of the learned III Additional Rent Controller, City Small Causes

Court, Hyderabad.


2.    The petitioner in both these revisions is the respondent-

tenant in the above R.Cs. and the respondent herein is the

landlord. For better understanding of the matter, the parties

hereinafter referred to as 'tenant' and 'landlord'.

3. The brief facts of the case is that the respondent herein had

let out his mulgi bearing H.No.1-2-606/198 situaterd at Banda

Maisamma, Indira Park Road, Hyderabad, to the petitioner herein

in the year 1996 to carry on the business of Medical and General

Stores. Since the petitioner herein is not paying the rents and the

mulgi which was let out to the tenant is required for the personal

use, the landlord filed the R.C.No.473 of 2008 seeking eviction of

the petitioner and he also filed R.C.No.453 of 2008 seeking fixation

of fair rent in respect of the petition schedule property. The learned

Rent Controller, after considering the entire evidence on record,

allowed both the cases and directed the tenant to vacate and hand

over the vacant possession of the petition schedule premises to the

landlord within two months from the date of the order, solely on

the ground of wilful default. Aggrieved by the said orders, the

tenant filed in R.A.Nos.173 and 91 of 2013, both the appeals were

dismissed confirming the judgement of the Rent Controller. But,

the Appellate Court went ahead and calculated the rent with an

enhancement @10% for every two years. Aggrieved by the said

orders, the tenant preferred these revisions.

4. The landlord also filed an application before the Rent

Controller in R.C.No.453 of 2008 seeking fixation of fair rent. The

trial Court, after hearing both the parties and after considering the

evidence on record, directed the tenant to pay rent @ Rs.2500/-

p.m. from the date of filing of the petition, with a future

enhancement of 10% for every two years and also directed her to

pay the arrears of rent within two months from the date of the

order. While passing the above order, the trial Court observed that

the rent of Rs.750/- p.m. was meagre since the mulgi is situated in

one of the prime business localities in Hyderabad.

5. The contention of the tenant is that she filed a Section 8

application in R.C.No.341 of 2008 which was allowed by the court

on 08.02.2010 holding that the rent is to be deposited @ Rs.650/-

p.m. and the said order became final and further the Court

directed her to deposit the rent from May 2008 to April 2010, i.e.,

from the date of filing the petition to the date of the order @

Rs.650/- p.m. and from May 2010 onwards, to deposit the said

amount of Rs.650/- on or before 10th of every month into the

Court. The petitioner would further contend that as there is no

appeal or revision filed against the said order, it operates as

constructive res judicata and that the findings of the trial Court in

R.C.No.473 of 2008 would suffer from legality.

6. She would also contend that it is not the case of the landlord

that rent has to be enhanced by 10% after completion of every

three years but both the Courts below observed that rent has to be

enhanced. Learned counsel for the tenant would aver that no relief

may be granted beyond the scope of the pleading taken by the

parties. The appellate Court applying an enhancement of 10% of

rent for every two years and holding that tenant has to pay the

balance of Rs.23,822,12/- is against the basic pleadings on record.

7. Another major contention raised by the tenant is that the

lease deed which is not registered under Stamps and Registrations

Act cannot grant an enforceable right with reference to the

quantum of rent. As per Section 17 of the Registration Act, if the

document is taken for collateral purpose, the terms and conditions

of the document cannot be looked into. The said document is valid

only for a period of eleven months. As per Section 49 of the

Registration Act, it cannot be used for any other purpose than

establishing the relationship of tenancy. It is also contended that

as per Section 17(d) of the Stamp Act, lease of immovable property

from year to year and a term exceeding one year has to be

registered. As the concerned document is not registered, it can be

seen only to the extent of nature of tenancy, i.e., whether petitioner

is a tenant or not, and therefore, the finding of the trial Court is

contrary to the provision of Section 17(1) of the Registration Act.

8. Learned counsel for the tenant relied upon GIRI YADAV

V/s. RAMESH GOUD1, in which it was held that an unregistered

lease deed is admissible in evidence for collateral purpose for

proving possession of a party. He also relied upon SARDAR AMAR

SINGH V/s. SURENDER KUMAR2 wherein it was held that an

unregistered lease deed can be shown to prove the nature and

character of the possession but it cannot be used to prove the

terms of the lease.

9. Therefore, the tenant would contend that the trial Court

failed to consider that the terms of the lease deed cannot form part

of the enforceable contract. At the most it can be held that the

petitioner is a statutory tenant under Rent Control Act.

10. He would also contend that there is no evidence to prove that

the rent is enhanced to Rs.750/- p.m. and then to Rs.4,500/- p.m.

in December 2007 and as such, learned counsel requested the

court to set aside the order dated 27.07.2015 passed in R.A.No.173

of 2013.

11. The contention of the landlord is that M.B.Narayana, the

father of the respondent, was the absolute owner and possessor of

the house bearing No.1-2-606/198 situated at Banda Maisamma,

Indira Park Road, Hyderabad. He had executed a lease deed in

favour of the petitioner on 01.04.1992 leasing out the mulgi to

carry on business of medical and general stores for a sum of

Rs.650/- p.m., exclusive of electricity charges and other charges

for a period of three years with the rent being payable on or before

2005 (4) ALT 411

1995 MP 230 (FB)

10th of every month. M.B.Narayana died in 1996 and leaving the

respondent only son as sole legal heir. The respondent inherited

the property and became the absolute owner.

12. Thereafter, the landlord filed the R.C.No.473 of 2008 for

eviction of the tenant. Aggrieved by the order therein, the tenant

preferred an appeal, wherein the order was upheld and the tenant,

who had deposited Rs.15000/- with the father of land owner at the

inception of ternancy, was directed to pay an amount of

Rs.23,822.12/- of arrears after deducting Rs.15,000/-.

13. Perusal of Clause 15 of the Lease Deed entered into between

the parties dated 01.04.1992 clearly shows that initially the lease

is for a period of three years starting from 01.04.1992. After the

expiry of the above three years period, by mutual consent of both

sides, the same may be extended for a further period, in writing, on

such terms and conditions as agreed. As per the Clause 16, in case

the lease is not extended and the lessee continues to be in

possession, the lessee shall pay an enhanced rent of 10% for every

two years on the existing rent.

14. The rent controller in R.C.No.473 of 2008 held that the

landlord categorically established that the tenant committed wilful

default in payment of enhanced rent of 10% as per Exs.P5 and R1

lease deed which is a document admitted by both the parties.

Thus, the respondent is liable to be evicted under Section 10(2)(i)

of the Act.

15. Though the landlord approached the Rent Controller for

eviction on the grounds of bona fide requirement, subletting by the

tenant and wilful default, the trial Court held that the landlord

failed to establish the other two grounds of bona fide requirement

and subletting of the premises by the tenant, but ordered for

eviction on the ground of wilful default.

16. As such the trial Court relying upon KANUBOINA VENKATA

RAMAIYYA V/s. PALAKURU RUKMINAMMA3, deducted the

enhanced rent of 10% from the deposit amount, and directed her

to pay the balance of Rs.6,200 to the landlord. On appeal, by the

tenant against the said order, though the appellate Court

confirmed the order of the trial Court, it calculated the enhanced

rent @10% periodically since 1995 and after deducting an amount

of Rs.15,000/- which was deposited by the tenant directed the

tenant to pay arrears of Rs.23,822/-.

17. Now the tenant contends that the said lease deed is not a

registered document and thus the contents of the document

cannot be looked into. Moreover, it is not the case of the landlord,

regarding the enhancement of the rent, as such, the said finding of

the appellate Court regarding enhancement of the rent is illegal.

18. The lease deed dated 01.04.1992 is the basis for the entire

litigation. As per the said lease deed, the petitioner herein is a

tenant of the respondent and she is running a medical and general

store in the mulgi of the respondent from 1992 onwards at a rent

of Rs.650/- p.m. Initially, the tenant approached the Court relying

upon the same document, for deposit of rents @ Rs.650/- p.m. in

R.C.No.341 of 2008 and the Court fixed quantum of rent at the

1997 (4) ALD 752

rate of Rs.650/- per month instead of Rs.4,500/- per month

basing on the said lease deed.

19. It is not fair on the part of the tenant to rely upon Clause 3

of the same lease deed when he intended to deposit the rent @

Rs.650/-p.m. and to deny Clause 16 which speaks of the

enhanced rent of 10% for every two years. Therefore, the conduct

of the tenant clearly shows that she is running business in the

mulgi with a minimal rent of Rs.650/- p.m. and even after

enhancement of 10%, the rental amount paid by her is meagre. As

such she is not inclined to vacate the same and thus she preferred

appeal against the orders of the learned Rent Controller and then

approached this Court against the order of the appellate Court in

the R.A.s. Therefore, the argument of the tenant herein that the

contents of the document cannot be looked into on the ground that

it is unregistered document is not sustainable. The appellate Court

rightly considered the Clause 16 of the lease deed and calculated

the rents with an enhancement @ 10% for every two years and

deducted the interest free refundable amount of Rs.15,000/- given

by the tenant and directed her to pay Rs.23,822/-.

20. For the foregoing reasons there are no merits in the

arguments of the tenant and the present revision petitions are

dismissed by confirming the order of the Appellate Court dated

27.07.2015. This Court also finds no reason to interfere with the

fare rent arrived at by the Rent Controller and approved by the

appellate Court at the rate of Rs.2,500/- with an enhancement of

10% every two years.

21. The Civil Revision Petitions are accordingly dismissed

confirming the orders dated 27.07.2015 passed in R.A.Nos.173

and 91 of 2013 by the Appellate Court. Tenant is directed to vacate

the suit schedule premises within two months from the date of the

order.

22. Miscellaneous Petitions, if any, pending in these revisions

shall stand dismissed in the light of this final order.

___________________ P.SREE SUDHA, J 5th JANUARY, 2021

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