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M/s. K.B. Saha & Sons Pvt. Ltd. Versus M/s. Development Consultant Ltd.

2008 (5) TMI 708 - SUPREME COURT

CIVIL APPEAL NOS. 5659-5660 OF 2002 - Dated:- 12-5-2008 - MATHUR, A.K. AND CHATTERJEE, TARUN, JJ. JUDGMENT TARUN CHATTERJEE, J. 1. These two appeals are directed against the common final judgment and order dated 18th of May, 2001 of the High Court of Calcutta passed in F.A. Nos. 39-40 of 1999 affirming the judgment and decree dated 11th of November, 1998 passed by the Asstt. District Judge, 9th Court at Alipore, South 24 Parganas whereby the two suits namely, Title Suit No 19/92 and 39/92 filed .....

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in Police Station Lake in the district of South 24 Parganas (hereinafter called "the suit property"). By a memorandum dated 30th of March, 1976, the respondent became a tenant in respect of a flat, as fully described in Schedule-A of the plaint, in the suit property (hereinafter called "the suit premises") for the residential accommodation of a particular officer Mr. Keshab Das and members of his family and for no other purpose. The monthly rent was fixed at ₹ 1100/-, w .....

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ly, the respondent would have to seek a written consent from the appellant bringing the change of purpose by a notice. 3. By a letter dated 6th of March, 1992, the respondent informed the appellant that Mr. Keshab Das had vacated the suit premises and that it wanted to make repairs and to allot the same to another employee to which the appellant objected and replied by a letter dated 12th of March, 1992 that the respondent had no right to allot the suit premises to another employee and, therefor .....

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vacated by Mr. Keshab Das and members of his family. By an interim order passed on 13th of March, 1992 in the aforesaid suit, the Assistant District Judge, 9th Court at Alipore had passed an order of injunction restraining the respondent from allowing any other person except Mr. Das to occupy the suit premises. This interim order was made final on 2nd of September, 1992. On 18th of March, 1995, a notice under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 (in short "the Act&qu .....

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after Mr. Das had vacated the same, yet the respondent had not vacated the suit premises and, therefore, the appellant was constrained to file the aforesaid suit for eviction of the respondent and damages and consequential relief. The respondent entered appearance and contested both the suits by filing written statements. In the written statements, it was the defence of the respondent that the respondent was in urgent need of rented accommodation for its officer and, therefore, they hurriedly p .....

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continuing. The allegation of the appellant that the respondent had no right to allow another officer to occupy the suit premises was misconceived and baseless. It was further alleged in the written statements that the respondent had duly informed the appellant that the employee of the respondent i.e. Mr. Das had left the suit premises and that they were going to allot the suit premises to another officer. It was also asserted that since it was the respondent who was the tenant under the appella .....

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e suit premises. By a common judgment dated 11th of November, 1998, the suits of the appellant were dismissed. 4. Feeling aggrieved by the aforesaid common judgment of the trial Court, two appeals were filed in the High Court at Calcutta, which came to be registered as FA Nos. 39-40 of 1998. By the impugned common judgment of the High Court, the aforesaid two appeals being FA Nos. 39-40 of 1998 were dismissed and two Special Leave Petitions were filed against them in respect of which leave has a .....

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lowed to bring any officer other than Mr. Keshab Das to occupy the suit premises, the respondent has kept the suit premises under lock and key without any occupation of any officer in the same. 6. On a perusal of the pleadings of the parties, it is pellucid that the case of the appellant in both the suits was based on the memorandum of lease agreement dated 30th of March, 1976. In this view of the matter, it is expedient to reproduce some of the relevant Clauses in the Tenancy Agreement between .....

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imits of Corporation of Calcutta hereinafter called the landlords (which expression unless repugnant to the context shall include its successors and assigns) of the First Part AND DEVELOPMENT CONSULTANTS PRIVATE LTD, a body corporate registered under the Companies Act,1956 having its registered office at present at premises No.24-B, Park street, Calcutta, within P.S. Park Street, Calcutta- 16 hereinafter called the tenant (which expression unless repugnant to the context shall include its succes .....

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₹ 1100/- (Rupees One Thousand One Hundred) only inclusive of rent of fittings and fixtures and service charges and parking space for one car AND WHEREAS the party of the second part hereof approached the party of the first part hereof and offered to it the said flat No.3 of the 2nd floor of the said premises No,28/8, Gariahat Road, Calcutta-29 for the use and occupation of its present Chief Engineer (Cement) of the aforesaid party Mr. Keshab Das and the members of his family only agreeing .....

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agrees to give vacant possession of the said tenancy and the party of the second part hereto agrees to take possession of the said tenancy for the use and occupation of the said Chief Engineer (Cement)and his family members on First day of April, 1976" Clause-9 of the Agreement runs as follows :- "That the party of the second part hereof agrees and undertakes that the tenancy will be used and occupied by its present officer Mr. Keshab Das and members of his family for residential purp .....

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nd effects in as sound, perfect and clear condition as they were at the commencement of the tenancy excepting natural wear and tear". 7. In view of the pleadings of the parties, the following issues were framed by the trial court in Title Suit No.19 of 1992: - 1.Has the plaintiff any cause of action for the suit ? 2.Is the suit maintainable in its present form and in law? 3.Was the suit premises let out by the plaintiff to the defendant for providing accommodation to its particular officer .....

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nt has violated the terms of the memorandum of agreement by not vacating the premises after the same having been vacated by Mr.Keshab Das ? 6. To what relief, if any, is the plaintiff entitled ?. 9. Considering the different clauses of the lease agreement and on consideration of the evidence on record and the contentions of the learned counsel for the parties, the trial court finally came to the following findings : - I) The suit premises was let out by the appellant to the respondent initially .....

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uit premises only on proof of the grounds mentioned in Section 13(1) of the Act. IV) Since the respondent was depositing rent in the office of the Rent Controller, Calcutta, the respondent was not a defaulter in payment of rent as a tenant and therefore, not liable to be evicted on the ground of default. V) The respondent was a tenant in respect of the suit premises although it was taken exclusively for the benefit of the named officer and therefore, the named officer Mr. Das was only occupying .....

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dential purpose and for no other purpose. VIII) From the agreement, which could be seen as a collateral evidence, the purpose of the tenancy was clearly for residence and, therefore, the question of violation of Clause (o) of Section 108 of the Transfer of Property Act by the respondent in the facts and circumstances of the case could not arise at all. 10. On the aforesaid findings arrived at by the Trial Court, both the suits were dismissed and the High Court on the same lines had affirmed the .....

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at the lease agreement being an unregistered document cannot be used to establish the provisions made in that agreement that the suit premises was let out to the respondent only for the purpose of occupation of the respondent's named officer Mr. Keshab Das and members of his family and for no other purpose. He further contended that since the lease agreement in question was not required to be registered, the prohibition contained in Section 49 of the Registration Act was not applicable. He a .....

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sfer of Property Act and, accordingly, was liable to be evicted under Section 13(1b) of the Act. Mr. Mukherjee contended that the lease agreement between the parties was not illegal and against the statute. In support of this contention, Mr.Mukherjee relied on a decision of this Court in the case of Smt. Juthika Mulick & Anr. vs. Dr.Mahendra Yashwant Bal & Ors. [AIR 1995 SC 1142] and he strongly relied on paragraph 42 of the said decision which says: "As general proposition of law, .....

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the language of Section 13(1) of the Act, the parties have freedom to contract out of Section. In this case clause (1) of the lease-deed extracted above stipulates that the heirs of lessee will have no right to hold after the death of lessee and they have to deliver quiet, peaceful and vacant possession within three months after the demise of the original lessee. In other words, the right has been made specifically not heritable." 12. In order to appreciate the submissions made by Mr. Mukh .....

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trument. All other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Where a lease of immoveable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee. Provided that the State Government may from time to time, by notification in the Official Gazette, direct that leases of immoveable pro .....

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e Transfer of Property Act, 1882 (4 of 1882) to be registered shall - (a) affect any immoveable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered : Provided that an unregistered document affecting immoveable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a s .....

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gh Court that it was protected by the provisions of the Act and that it could not be evicted only because as per the agreement, the tenancy was to be occupied by one of its officers. The appellant, on the other hand, as noted hereinabove, placed reliance on the decision of this court in Smt. Juthika Mullick's case [supra], to put forth the point that the respondent was bound to vacate the premises after the said officer had left the premises and relying on Smt.Juthika Mulick's case [supr .....

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to take their case out of the provisions of that Section i.e. the parties were at liberty to contract out of that section. Before we deal with the submission of Mr. Mukherjee, learned counsel appearing on behalf of the appellant, on this question, we may look into the findings arrived at by the High Court on this question. The High Court in the impugned judgment has come to a conclusion that the decision in the case of Smt. Juthika Mulick's case (Supra) cannot be of any benefit to the appel .....

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d required to be registered under Section 107 of the Transfer of Property Act is not admissible in evidence if it is not registered. Proviso to Section 49, however, provides that although a lease deed falling under the provision of Section 107 of the Transfer of Property Act will not be admissible in evidence if the same is not registered but that deed may be used as evidence of any collateral transaction not required to be effected by a registered instrument. Therefore, the High Court observed .....

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nabove, provides that an unregistered lease deed may be looked into as evidence of collateral facts. Mr. Mukherjee, learned counsel for the appellant argued before us that the tenancy in question was exclusively granted for the benefit of the named officer and his family and unless the landlord gave his consent, no other person could use it and such condition in the lease agreement is admissible for ascertaining the purpose of allotting the suit premises which according to the appellant is a col .....

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f the Act makes it clear that notwithstanding anything to the contrary contained in any other law, an order or decree for the recovery of possession of any premises shall be made by the court in favour of the landlord against a tenant on the grounds mentioned in that section. It was further observed that in view of the language of Section 13(1) of the Act, the parties have freedom to contract out of the Section. In the aforesaid judgment of this Court, on which strong reliance was placed by the .....

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rom the date of death of the lessee unconditionally and without any objection whatsoever. It was further stipulated that they shall have no right to handover the demised premises after the said period under any circumstances. The lessee died on 16th of December, 1970 and his heirs did not deliver vacant possession in favour of the lessors or their successors in interest and this necessitated filing of the suit for eviction of the defendants. In that decision, the main defence raised in the writt .....

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f this Court was rendered on the basis of a registered lease deed, we are of the view that the said decision is clearly distinguishable from the present case because of the fact that in the present case, there was no registered deed of lease nor was there any such covenant as mentioned hereinabove. Therefore, we do not find any ground to place any reliance on the aforesaid decision of this court. 17. As we have already noted that under the proviso to Section 49 of the Registration Act, an unregi .....

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that to use such an instrument for the purpose of proving such a term would not be using it for a collateral purpose and that the question as to who is the tenant and on what terms he has been created a tenant are not collateral facts but they are important terms of the contract of tenancy, which cannot be proved by admission of an unregistered lease-deed into evidence. 18. The High Court in the impugned Judgment relied on a decision of the Allahabad High Court in the case of Ratan Lal & ors .....

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purpose, but the collateral purpose has a limited scope and meaning. It cannot be used for the purpose of saying that the deed created or declared or assigned or limited or extinguish the right to immovable property ..........term collateral purpose would not permit the party to establish any of these acts from the deed." 19. In the case of Bajaj Auto Limited vs. Behari Lal Kohli [AIR 1989 SC 1806] , this Court observed that if a document is inadmissible for non-registration, all its terms .....

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eiterated the above and observed in paragraph 10 as under : - ".......the lease deed Ex. P1 dated 19th May, 1978 executed both by the appellant and the respondent i.e. the landlady and the tenant, Rai Chand Jain, though unregistered can be considered for collateral purposes and as such the findings of the Appellate Authority to the effect that the said deed cannot be used for collateral purposes namely to show that the purpose was to lease out the demised premises for residential purposes o .....

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he case of Rana Vidya Bhushan Singh Vs. Ratiram [1969 (1) UJ 86 (SC)], the following has been laid down: "A document required by law to be registered, if unregistered, is inadmissible as evidence of a transaction affecting immovable property, but it may be admitted as evidence of collateral facts, or for any collateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. As stated by Mulla in his Indian .....

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heless admissible to prove the character of the possession of the person who holds under it." 21. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that :- 1. A document required to be registered is not admissible into evidence under Section 49 of the Registration Act. 2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registra .....

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evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose. 22. In our view, the particular clause in the lease agreement in question cannot be called a collateral purpose. As noted earlier, it is the case of the appellant that the suit premises was let out only for the particular named officer of the respondent and accordingly, after the same was vacated by the said officer, the respondent was not entitled to allot it to any .....

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egistered, can be looked into for the purpose of evicting the respondent from the suit premises only because the respondent was not entitled to induct any other person other than the named officer in the same. 23. Before we part with this Judgment, let us deal with another ground, which the High Court had also taken into consideration. This is with regard to the violation of provisions of Section 108 (o) of the Transfer of Property Act. Section 108 (o) clearly provides that the Lessee must not u .....

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sions of Section 108 (o) of the Transfer of Property Act. Before we decide this question, it is necessary for us to reproduce the finding of the High Court on this aspect, which is as follows: - "....Clause (O) of Section 108 of the T.P. Act touches the question of user. This clause requires the lessee to use the property as a man of ordinary prudence would use his property and not to use the property, for any other purpose, for which it is leased. In the instant case, from the tenancy agre .....

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ion that since this was not a case of Change of User' within the meaning of Section 108 (o) of the Transfer of Property Act, it could not be held that the appellant had violated the provisions of Section 108 (o) of the Transfer of Property Act. Section 108(o) requires the lessee to use the property as a man of ordinary prudence would use his property and not to use it for a purpose different to that for which it was leased. It is true that under Section 108 (o) of the Transfer of Property Ac .....

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cular named officer and for none else and despite this condition, the same is given to some one else, or would it cover and be limited to the cases where property is leased out for a residential or non- residential purpose or for a particular business and despite such express conditions, the property is used for the purpose other than the specified. We are of the view that letting out or leasing out the property for a particular named officer cannot be the purpose' of letting. The purpose of .....

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his Court, we do not find any support from the said decisions for the purpose of holding that the present case is covered by the expression Change of User' as used in Section 108(o) of the Transfer of Property Act. In Dashrath Baburao Sangale's case [supra], the premises was let out to the tenant for sugarcane juice business whereas the tenant was using the premises for selling cloth and readymade clothes and on this ground, it was held that he was liable to be evicted on account of chan .....

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y used for the residence of some other officer of the respondent would not constitute change of user' so as to be hit by Section 108 (o) of the Transfer of Property Act. 27. Before we part with this judgment, we may deal with a short submission of Mr. Mukherjee that since the lease agreement in question was simplicitor a tenancy agreement, which is not compulsorily registrable, the respondent was liable to be evicted even under the provisions of the Act. We are unable to agree with this cont .....

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