Rajesh Kumar Gupta vs Sri Satish Chand Khera

V.K. Shukla, J.—Present Civil Revision has been filed against the judgment and decree dated 10.10.2007 passed by Additional District Judge, Court No. 13, Allahabad in exercise of jurisdiction as Judge Small Cause Court, in JSCC Suit No. 44 of 2004, decreeing the suit of the plaintiff-landlord for eviction and recovery of money.

Brief background of the case is that the defendant revisionist has been tenant of two shops situate in House No. 677/391, Chak Raghunath, Naini, Allahabad on the basis of written agreement for 11 months on Rs. 1800/- per month each shop for the period starting with effect from 01.09.2002 to 31.07.2003. The revisionist claims that after expiry of the period agreement dated 01.09.2002, fresh agreement was executed on 04.10.2003 and at the time of execution of said agreement, the landlord had taken a sum of Rs. 3,00,000/- in cash by way of pagri and Rs. 300/- per month per shop was the agreed rent. It appears that pressure was being exerted for vacation of the premises in this background Original Suit No. 2421 of 2003 was filed, wherein order of injunction was passed on 10.12.2003. Notice was given by landlord on 01.60.2004 terminating the tenancy and asking the tenant to vacate the premises. Attempt was made to disconnect electricity connection. In this regard writ petition No. 37856 of 2004 was also filed, wherein this Court had passed order on 15.10.2004 for restoration of electricity connection. Landlord on 03.12.2004 filed suit referred to above seeking decree of eviction and arrears of rent together with damages. In the said suit defendant entered appearance and filed written statement on 15.12.2006, to which replication was filed on 02.01.2007. Thereafter, evidence was led from both the sides, and suit in question has been decreed. At this juncture, present revision has been filed.

Pleadings inter se parties by way of counter and rejoinder affidavits have been exchanged, and thereafter present Civil Revision has been taken up for final hearing and disposal with the consent of the parties.

Sri P.C. Jain, learned Counsel appearing for the defendant-revisionist, contended with vehemence that in the present case factum of second agreement dated 04.10.2003 was not at all specifically denied by the landlord, and as such the same shall be treated as document admitted in terms of the provisions as contained under Order VIII Rules 3 and 5 of the Code of Civil Procedure, and once facts were admitted, then in terms of Section 58 of the Evidence Act, same was not required to be proved and defence taken in the suit was liable to be accepted and in this background transaction inter se parties ought to have been relied upon and the suit out to have been dismissed, as admittedly, there has been no arrears of rent.

Countering the said submission, Sri Syed Wajid Ali, Advocate, appearing for the plaintiff opposite party, contended that the defendant-revisionist''s claim is nothing but an outcome of manipulation and manoeuvring and at no point of time second agreement was ever executed and same was not at all admissible in evidence, as in terms of Section 107 of Transfer of Property Act, it was not at all registered, and coupled with this factum of advancing Rs. 3,00,000/- has been found to be farce and fictitious theory, as such the finding of fact which has been returned by the trial court cannot be re-appreciated, as jurisdiction u/s 25 of the Provincial Small Causes Courts Act is to see that the order has been passed in accordance with law. In this background, it has been contended that revision deserves to be dismissed.

After respective arguments have been advanced, factual position which emerges in the present case is that the building in question was not at all covered by the provisions of U.P. Act No. XIII of 1972. Initially, two shops in question were let out at the rate of Rs. 1800/- each per month. This fact is not disputed that there had been agreement dated 01.09.2002 for a period of 11 months with effect from 01.09.2002 to 31.07.2003. The defendant-revisionist claims that inter se parties fresh agreement was executed on 04.10.2003 and qua the said agreement precise statement of fact has been mentioned in paragraphs 2, 12, 13, 16 and 18 of the written statement and in paragraphs 2, 9, 10, 13 and 15 of the replication so filed as there was no specific reply, as such the same should be accepted that there was agreement inter se parties, as per which Rs. 3,00,000/- had been paid, in this background there was no occasion to decree the suit.

There is no dispute to this fact from the side of the plaintiff-opposite party also that subsequent agreement dated 04.10.2003 which is being alleged by the defendant-revisionist, the same was not at all registered document. Section 107 of the Transfer of Property Act provides that a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. Section 49 of the Indian Registration Act provides that no document required by Section 17 of the said Act or by any provision of the Transfer of Property to be registered shall affect any immovable property comprised therein or be received as evidence of any transaction affecting such property unless it has been registered. Hon''ble Apex Court in the cases of Rajendra Pratap Singh v. Rameshwar Prasad 1998 (4) AWC 775 and Hari Shankar Mishra v. vice Chairman 2001 ACJ 455, after taking into account the aforesaid statutory provisions, has taken the view that there can be no manner of doubt that the lease deed could only be accepted by registered document and not otherwise. If the instrument is not registered, the corollary is that no lease exceeding one year at all. Such an instrument not being registered, cannot be admitted in evidence, in view of Section 17 of the Registration Act, 1908. Unregistered document cannot be accepted and no benefit of the said document can be offered in the absence of registration. This much proposition has been accepted and then it has been sought to be contended placing reliance on the judgment of this Court in the case of A.R.C. Overseas Private Limited v. Bougainvillea Multiple and Entertainment Centre Pvt. Ltd. 2008 (1) ARC 806, that even unregistered lease can be admitted in evidence for collateral purposes, invoking the proviso to Section 49 of the Registration Act when possession was already there with the defendant revisionist. The said case in hand was dealing with later part of Section 107 of Transfer of Property Act, lease by oral agreement without delivery of possession; and last part of Section 49 of Registration Act, which specifically speaks "as evidence of any collateral transaction not required to be effected by registered document". In Law of Lexicon, IInd part 2007, Collateral transaction within the meaning of the proviso to Section 49 of the Registration Act, has been described as transaction other than transaction affecting the immovable property, but which is in some way connected with it. "Collateral Transaction" means a transaction which does not create right in immovable property. Here, in the present case the document in question i.e. agreement dated 04.10.2003 is not being pressed for collateral purposes, rather entire claim is based on the aforesaid document that new tenancy had been entered , and in this background, said unregistered document is of no consequence, inasmuch as, the provisions of Section 107 of the Transfer of Property Act read with Section 49 of the Registration Act are mandatory in nature.

Now coming to the question of admission in terms of Order VIII Rules 3 and 5 of the Code of Civil Procedure. Reliance has been placed by Defendant Revisionist on the judgment of Hon''be Apex Court in the case of M. Venkataramana Hebbar (D) by L.Rs. Vs. M. Rajagopal Hebbar and Others, . Relevant paragraphs 12 to 15 of the said judgment are being quoted below:

The contract between the parties, moreover was a contingent contract. It was to have its effect only on payment of the said sum of Rs. 15,000/- by the plaintiff and other respondents by the defendant Nos. 1 to 3. It has been noticed hereinbefore by us that as of fact, it was found that no such payment had been made. Even there had been no denial of the assertions made by the appellant in their written statement in that behalf. The said averments would, therefore, be deemed to be admitted. Order VIII Rule 3 and Order VIII Rule 5 of the CPC read thus:

Denial to be specific. It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.

Specific denial.- [(1)] Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against person under disability.

Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.

(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.

(3) In exercising its discretion under the proviso to Sub-rule (1) or under Sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.

(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.

Thus, if a plea which was relevant for the purpose of maintaining a suit had not been specifically traversed, the Court was entitled to draw an inference that the same had been admitted. A fact admitted in terms of Section 58 of the Evidence Act need not be proved.

Even otherwise, the Court had framed an issue and arrived at a positive finding that the appellant herein did not pay the said sum of Rs. 15,000/- in favour of the plaintiff Nos. 1 to 3. The High Court has also affirmed the said finding.

The High Court, therefore, cannot be said to have committed any error whatsoever in arriving at the finding that by reason of the said purported deed of family settlement, the co-owners had not partitioned the joint family property by metes and bounds. The plaintiffs/respondents were thus, yet to relinquish their rights in the joint family properties by receiving the said amount of Rs. 15,000/-. Deed of family settlement had not been given its full effect to.

Here, most surprising feature of written statement is that in paragraph 2 of the written statement, it has been stated that with effect from October, 2003 shop in question was taken on rent at the rate of Rs. 300/- per month and even in paragraph 12 similar statement of fact was recorded, and it was mentioned that at the time of agreement Rs. 3,00,000/- was given to landlord. In paragraph 16 of the written statement , it was mentioned that in October, 2003 as per aforesaid agreement, new tenancy was there. In the replica, which was filed, in paragraph 9 thereof it was categorically mentioned that at no point of time amount of Rs. 3,00,000/- was given nor any such condition was there in the agreement dated 01.09.2002. Factual position which emerges is to the effect that in the written statement so filed at no point of time particular date of the agreement was ever mentioned and as far as statement with regard to Rs. 3,00,000/- is concerned, same was specifically denied and disputed, which was the essence of subsequent agreement. Once in the written statement which was filed, at no point of time, at no place date of subsequent agreement has been discussed and totally vague and evasive statement was there and qua the amount of Rs. 3,00,000/-, categorical denial was there that no such amount was ever offered or paid and same was even substantiated by evidence, in this background, it cannot be said that there was any admission on the part of the landlord qua the said agreement in question and it was admitted position and the same was not required to be proved.

Now coming to the finding of fact which has been returned, Division Bench of this Court in the case of Param Sukh v. III A.D.J. 1986 ACJ 745, has taken the view that while exercising authority u/s 25 of Provincial Small Causes Courts Act, the Revisional Court has power to satisfy in law that decree or order made, in any case decided by a Court of Small Cause, was according to law. Revisional Court is not competent to look into evidence of parties and to decide, whether such finding of fact arrived at by Court below is justified by evidence or not. View, to the similar effect has been taken by Hon''ble Apex Court in the case of Mundri Lal v. Smt. Sushila Rani 2007 (6) ALJ 357, by reiterating that Revisional jurisdiction can be exercised only when question of law arises, and pure finding of fact based on appreciation of evidence may not be interfered with, but if such finding has been arrived at upon taking into consideration irrelevant factors or relevant fact has been ignored, then the Revisional Court, will have jurisdiction to interfere with the finding of fact.

On the parameters as set out in the present case most surprising feature of the entire pleadings is that in the written statement so filed, at no point of time date of agreement had ever been disclosed. Once agreement dated 04.10.2003 was in existence, no one prevented the defendant-revisionist from making specific mention qua the same in the written statement filed on 15.12.2006. Said document has been brought on record for the first time on 23.02.2007. On the basis of evidence which had been led, categorical finding of fact has been returned that at no point of time Rs. 3,00,000/- was ever offered or paid, as there was no credible evidence to show and substantiate that Rs. 3,00,000/- had been advanced by the defendant revisionist to the landlord. Source of the said money was highly doubtful. On the basis of appreciation of evidence categorical finding of fact has been returned that the evidence of D.W.1 and D.W. 2 was totally untruthful. Coupled with this, the shops were already let out at the rate of Rs. 1800/- each per month, and it was unbelievable, how subsequently, they were let out for Rs. 300/- per month, when there was no proof of payment of Rs. 3,00,000/-. The story set up by the defendant-revisionist is totally unbelievable and inspires no confidence at all, qua the second unregistered agreement. The attending circumstances have been discussed in detail which discredit the aforementioned agreement.

At last before this Court, in order to cover up the loophole, new theory has been set up which was not at all the case of the defendant-revisionist before the court below that at the time of execution of agreement dated 04.10.2003, the landlord requested the revisionist that he needed the sum of Rs. 3,00,000/- for his purpose and the revisionist provided the same, as such the same was advanced with interest at the rate of Re. 1 per cent per month i. e. Rs. 3000/- per month, and on this bargaining, the rent of Rs. 300/- per month was agreed. All these facts clearly demonstrate and establish untruthful stand taken by the revisionist. Theory set up by revisionist is totally unbelievable and cannot be accepted even from the yardstick of a man of ordinary prudence, and in this background, the Judge Small Cause Court has rightly proceeded to decree the suit. The said finding of fact is totally in accordance with law, the same being neither perverse nor unreasonable need not be interfered with by this Court in exercise of authority u/s 25 of the Provincial Small Cause Courts Act. Consequently, once building in question was not covered by the provisions as contained under U.P. Act No. XIII of 1972, notice had been validly given terminating the tenancy and arrears of rent, which rent was due,then there is no infirmity in the decree passed.

Consequently, present Civil Revision fails and the same is dismissed. The revisionist is accorded six month''s time to vacate the premises in question and hand over its peaceful vacant possession to the opposite party, subject to the condition that within one month from today affidavit shall be filed by the revisionist before the Judge Small Cause Court that premises in question will be vacated on or before expiry of the period as aforesaid, and entire decretal amount, if already not paid, shall be paid. In the event of affidavit not being filed within one month from today, and decretal amount not being paid, the interim protection shall cease to operate, and landlord would be at liberty to proceed accordingly, and interim protection of this Court would not come to rescue of petitioner.