Ganpatrao Shiveram vs Anant Ramchand

Dixit, J.—This revision petition arises out(sic)the Plaintiff-applicant''s suit for the recovery(sic)arrears of rent and for ejectment of Defendant non-applicant from a house. The Plaintiff''s claim for ejectment was rejected by both the Court below. The Plaintiff sought to eject the Defendant on the ground that the Defendant defaulted(sic)the payment of rent for the months of June(sic)July 1951 and that thereupon the Plaintiff(sic)a notice to the Defendant on 16-8-1951 (sic) upon the Defendant to pay the arrears of(sic)within seven days of the receipt of the notice that the tenant did not pay the arrears of(sic)even within one month of the date of the re(sic)of the notice; that thereafter on 26-9-1951 Plaintiff gave a notice to the Defendant terming the tenancy from 15-11-1951 and asking(sic)to pay the amount of rent due from him(sic)15-11-1951.

The Defendant admitted the tenancy, the (sic) of rent and the receipt of the notices. He (sic) that he took the amount of rent due from him from 1-6-1951 for payment to the Plaintiff once that his residence and secondly at his office but(sic)both these occasions the Plaintiff refused to accept the amount of rent and that thereafter he went the amount by money order on 4-10-1951, which was also refused by the Plaintiff In the trial Court the Plaintiff admitted having refused the money order. He, however, did not accept the statement of the tenant that he had offered pay the amount of rent due from him within time and at the places alleged by the Defendant.

The trial Court did not frame any issue with regard to the contested offers of payment of rent by the Defendant and gave no finding on the question whether the Defendant did or did not tender to the Plaintiff the amount of rent within one month of the receipt of notice dated 16-8-1951. the learned trial Judge took the view that the notice dated 16-8-1951 had been waived by service of the subsequent notice dated 26-9-1951, whereby the Plaintiff accepting the Defendant as his tenant upto 15-11-1951 called upon him to pay the amount of rent due from him upto that dale and "Sat as the tenant (sic)rd the amount of rent due from him by money order within one month of 15-11-1951, the Plaintiff could not eject the Defendant u/s 4(a) Madhya Bharat Sthan Niyantran Vidhum samvat 2006. Accordingly the learned Judge rejectcd the Plaintiffs claim for(sic)ectment. In appeal the District Judge of Gwalior, agreed with the decision of the trial Court.

Having heard learned Counsel for the parties, I have come to the conclusion that the decision of (sic)Courts below that by the notice dated 26-9-1951, the Plaintiff gave up the right to for(sic), the tenancy, which accrued to him on the fallure of the Defendant to pay the arrears of rent within one month of the receipt of the previous notice dated 15-8-1951, is not correct. By the notice dated 26-9-1951 the Plaintiff determined the tenancy from 15-11-1951 and asked the tenant to vacate the premises by that date because according to the Plaintiff he had failed to pay the arrears of rent within one month of the delivery of the notice dated 16-8-1951. Thus the Plaintiff expressed in very clear terms his election(sic)avoid the lease for the failure of the tenant(sic)pay the amount of rent alter service of notice(sic)Accordance with Section 4(a), Madhya Bharat(sic)Niyantran Vidhan.

The notice dated 26-9-1951 was a notice to quit. (sic) that notice the Plaintiff-applicant no doubt upon(sic)the Defendant to pay the entire amount of rent due from him upto 15-11-1951,(sic)Is, upto the date on which the tenant was(sic)ed to vacate the premises. But this demand rent is in no way inconsistent with the plain(sic)conduct in choosing to retain the right of (sic) ting the lease which accrued to him on the(sic)failure of the Defendant to pay rent with one month of the receipt of the notice dated(sic)1951 and of giving a notice to quit.

The Plaintiff-applicant no doubt recognised the applicant as his tenant upto 15-11-1951. But connection with the question whether the Plaintiff waived his right to avoid the lease, the lint to be considered is not whether the Plaintiff treated the lease as subsisting until(sic)1-1951; but it is whether by the notice dated(sic)1951 the Plaintiff expressed his intention to(sic)the tenancy after 15-11-1951 in the event the Defendant paying the entire amount of due from him upto 15-11-1951 on or before date. Of this intention, there is no indicate whatsoever in the notice dated 26-9-1951.

The demand in the notice that the tenant should vacate the premises by 15-11-1951 is clearly not an expression of the intention of the Plaintiff to continue the tenancy after 15-11-1951. The further demand that he should pay the entire amount of rent due from him upto 15-11-1951 does not show that the Defendant could remain rightfully in possession after that date. It cannot, therefore, be maintained that by the notice dated 26-9-1951 the Plaintiff relinquished the right which had accrued to him of avoiding the lease or waived the notice to quit and gave fur there time to the Defendant to pay the arrears of rent and remain in possession of the premises as a tenant.

In my opinion there was no waiver on the part of the Plaintiff of his right to forfeit the lease on account of the alleged failure of the tenant to pay the arrears of rent within one month of the delivery of the notice dated 16-8-1951, and that on the other hand the Plaintiff by his notice dated 26-9-1951 asserted this right by giving to the Defendant a notice to quit by 15-11-1951. Unless, therefore, the Defendant non-applicant established the fact that he offered to pay rent to the Plaintiff within one month of the date or the delivery of the notice dated 16-8-1951 and the Plaintiff declined to accept the amount, the Plaintiff''s claim for ejectment must be decreed. The Courts below have, however, not tried and determined the question whether the Defendant made the tenders alleged by him. The case must, therefore, be remitted to the lower Court for a decision on this point, and the disposal of the Plaintiff''s suit according to law.

Mr. Patankar learned Counsel for the non-applicant raised the objection that as in the present case the lease of property was not registered, the Plaintiff-applicant was not entitled to eject the Defendant on the basis of an unregistered lease deed. In support of this contention he relied on -''Wamanrao v. Gopal Das'' 1953 BLJ 491 (A). In my judgment, this contention is unsound. In the present case the tenancy as well as the rent payable having been admitted by the Defendant tenant, the question whether the lease deed is registered or unregistered and whether it is admissible in evidence, does not arise at all. The effect of an unregistered instrument, which is required to be registered, is that it cannot be received as evidence of any transaction affecting the property u/s 49, Registration Act. Where there is no dispute between the parties as regards the transaction affecting the property, the question of proving the transaction by any evidence does not arise and consequently the fact that the document is unregistered becomes wholly immaterial. The decision cited by learned Counsel for the non-applicant is not an authority for the proposition that even when the tenancy and the rent payable are not in dispute, the Plaintiff landlord is not entitled to a decree for ejectment or arrears of rent if the lease of immovable property is unregistered.

This has been made amply clear by the learned Chief Justice who decided the case of-''Wamanrao v. Gopal Das (A)'' by observing that "the rent note is produced to establish relationship between the parties of the lessor and lessee and the rent which is to be paid for the enjoyment of the immovable property transferred to the lessee. In order to prove this agreement the document must be registered."

It is thus clear that the case of Wamanrao did not lay down the proposition that even when an agreement of lease is admitted, it must be proved by evidence and that if the agreement is unregistered then in spite of the admission of the parties, the agreement cannot be held as proved for giving relief to the parties.

In the result I set aside the decisions of the Courts below and direct the Court of first instance to frame proper issues on the allegation of the Defendant that lie offered to pay rent to the Plaintiff on the two occasions mentioned by him in his written statement, try them and dispose of the Plaintiff''s suit according to law. Costs in this Court and in the Court of District Judge shall follow the result of the suit in the trial Court.