IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 9.05.2012 CORAM THE HON'BLE MR.JUSTICE V. PERIYA KARUPPIAH, C.R.P (NPD).No.3925 of 2001 and C.M.P.No.1438 of 2003 A.R.G.Subramaniam .. Petitioner /Tenant ..Vs.. K.N.Sesha Chalam .. Respondent/Landlord Prayer: This Civil Revision Petition is filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, against the order and decreetal order dated 26.09.2001 in R.C.A.No.4 of 1999 on the file the Sub-ordinate Judge(Appellate Authority), Krishnagiri confirming the order and decreetal order dated 30.07.1999 in HRCOP No.2 of 1995 on the file of the District Munsif (Rent Controller), Krishnagiri. For Petitioner : Mr.T.Arulraj For Respondent : Mr.M.Venkatachalapathy,SC for Mr.M.Sriram O R D E R This revision is directed against the fair and executable order passed by the learned Rent Control Appellate Authority in R.C.A.No.4 of 1999 dated 28.09.2001 in confirming the eviction order passed by the learned Rent Controller in R.C.O.P.No.2 of 2005 dated 30.07.1999 under Section 10(3) (a) (1) and (3) of Tamil Nadu Buildings (Lease and Rent Control) Act. 2. C.M.P.No.1438 of 2003: This petition has been filed by the revision petitioner under Order 41 Rule 27 CPC to receive the agreement dated 21.10.1981 between the revision petitioner and the respondent and to mark as an Exhibit in the evidence. 3. The revision petitioner was the respondent and the respondent herein was the petitioner before the learned Rent Controller. 4. The case of the petitioner as stated in the petition would be as follows:- https://hcservices.ecourts.gov.in/hcservices/ The petitioner is the owner of the premises. On 21.10.1981, the petitioner received a sum of Rs.10,000/- as advance from the respondent and gave one part for residential purpose and another part for commercial purpose. A lease agreement was entered into on 21.10.1981 between the petitioner and the respondent and as per the terms of the agreement deed executed by the petitioner and the respondent, the building premises shall be enjoyed by the respondent initially for residential purpose and on payment of the balance advance amount of Rs.40,000/- out of the total advance amount of Rs.50,000/- the petitioner should construct the shop portion in the front portion of the building premises. On 21.10.1981 the respondent paid Rs.10,000/- as advance and it was agreed that on payment of the balance amount of Rs.40,000/- the respondent need not pay any amount towards rent as the interest accrued on the advance amount would be adjusted towards the rent. The respondent paid Rs.10,000/- as advance and took delivery of possession of the residential portion of the building premises. After wards on 06.01.1982 the respondent paid Rs.40,000/- as advance and consequently the petitioner constructed the shop portion in the front side and delivered possession of the same for carrying on business. Then the building premises were letout for both residential and non residential purposes and the building premises from a single block. The respondent has been residing in the building premises and as well carrying on business in the name and style of "Karpagam Agencies", since the year 1982. The respondent has been continuing in possession of the building premises as a tenant holding over after the lapse of the period of 4 years and one month for which he was allowed to occupy the building premises on the basis of "no interest for the advance and no rent for the building". After a passage of 13 years, on account of the increase in market value of the building premises and the potentialities of the place on account of the expansion of the town and existence of the bus stand bear the building premises, the petitioned asked the respondent to hold for the fixation of rent by mutual discussion and free agreement. Accordingly, on 09.08.1994 after holding talks, and agreement was reached between the petitioner and the respondent in the presence of mediators. As per the agreement reached on 09.08.1994, the respondent agreed to pay the rent of Rs.5,000/- per month for the building premises and allowed to retain the advance amount of Rs.50,000/-. It was also agreed that if the respondent does not pay the rent for three months continuously, the petitioner is entitled to get possession of the building premises. The original agreement deed dated 09.08.1994 incorporating the above terms and other conditions and executed by the petitioner and the respondent was handed over to the respondent after taking a xerox copy of the same by the petitioner. The respondent having agreed to pay the rent at the rate of Rs.5,000/- per month since the month of August 1994, did not pay any amount thereafter and till this day. The rent due for the months of August 1994 to March 1995 for the period of 8 months comes to Rs.40,000/-. The respondent committed wilful default in https://hcservices.ecourts.gov.in/hcservices/ payment of rent since the months of August 1994. Inspite of repeated oral demands made by the petitioner every month the respondent did not pay the rent due and he evaded by telling one reason or other. There is supine indifference on the part of the respondent and he deliberately and wilfully committed default in payment of rent.On some occasions he even refused to pay the rent. The petitioner has been residing at Kundarapalli village. The petitioner is an active congressman and he wanted in the month of January 1995 to shift his residence to Krishnagiri town in the petition mentioned building premises for better living and to advance the welfare of his children and to set up an office of the Congress(I) Party in the building premises. The petitioner orally demanded the respondent to vacate the petition mentioned building premises on or before 28th February 1955 to facilitate the petitioner to occupy the building premises for residential purpose and as well as to set up Congress Party. The respondent did not bother to take note by the same and refused to vacate the building premises. The petitioner took mediators with him in the first week of March 1995 and requested the respondent to vacate the building premises. The respondent did not heed to their advice and he also refused to pay the arrears of rent. As the petitioner made lawful demands to the respondent, the same was not relished and hence the respondent filed a petition in H.R.C.O.P.No.1 of 1995 seeking fixation of fair rent by levelling false allegations and suppressing the truth. The respondent, while filing the said petition suppressed the agreement, entered into on 9.8.1994 and his his contractual and obligation to pay the rent of Rs.5,000/- per month. As the respondent is determined not to vacate the building premises and not to pay the arrears of rent, of becomes necessary for the petitioner to file the petition for eviction on the grounds of wilful default in payment of rent and for the petitioner's own occupation for the residential purpose and for setting up of Congress(I) Party office. Therefore, the petitioner prayed that this Court may be pleased to order eviction of the respondent from the petition mentioned building premises and direct the respondent to surrender possession of the same to the petitioner with costs. 5. The objections raised by the respondent in the counter statement would be as follows:- The suit property belongs to the petitioner. It is admitted that the petitioner had not paid any interest for the advance amount of Rs.50,000/- paid by the respondent and the respondent had not paid the rent to the petitioner. The petitioner is a member of the Congress party. The petitioner entered into an agreement forcefully and hence, it is not legally acceptable and that the agreement is a false one. The petitioner did not return the advance amount of Rs.50,000/-. In this circumstance, the previous agreement is still in force. The only chance for the petitioner is to take effective steps to fix fair rent. Since the petitioner is not willing to do so, the respondent himself has taken action for https://hcservices.ecourts.gov.in/hcservices/ fixing the fair rent. The petitioner is already having some other buildings on his own. At the time of filing the petition, the disputed premises is ready for the occupation of the petitioner. In such circumstances, the petitioner stated that the premises is used for the purpose of making office for the congress party is not true. Hence, the respondent prayed for dismissal of the application with costs. 6. The learned Rent Controller had framed the points on the basis of the pleadings and conducted enquiry and had come to a conclusion of dismissing the petition on 23.04.1997. The aggrieved respondent had filed an appeal before the learned Rent Control Appellate Authority in R.C.A.No.3 of 1997 and the said Court, after hearing both parties had allowed the appeal and thereby remanded the said petition to the learned Rent Controller in its order dated 30.3.1999, to conduct fresh enquiry. The learned Rent Controller again conducted the enquiry afresh and came to the conclusion of allowing the petition and thereby an eviction order was passed against the respondent on all the grounds. 7. The aggrieved respondent preferred an appeal before the learned Rent Control Appellate Authority in R.C.A.No.4 of 1999 and the said appeal was heard and the learned Rent Control Appellate Authority had come to a conclusion of confirming the order passed by the learned Rent Controller on 28.09.2001. 8. Now the aggrieved respondent had preferred the revision before this Court challenging the concurrent order passed by the learned Rent Control Appellate Authority passed in R.C.A.No.4 of 1999. 9. During the pendency of this revision, the revision petitioner had filed the petition in C.M.P.No.1438 of 2003 for receiving the agreement entered into between parties on 21.10.1981 as additional evidence. 10. Heard Mr.T.Arulraj, learned counsel for the revision petitioner and Mr.M.Venkatachalapathy,learned Senior Counsel appearing on behalf of Mr.M.Sriram, learned Counsel for the respondent. 11. The learned counsel for the revision petitioner would submit in his argument that the Courts below have erroneously come to a conclusion that the revision petitioner has committed wilful default and the respondent was in need of the premises for his own use and occupation. He would further submit that the courts below did not understand the peculiar relationship in between parties that a sum of Rs.50,000/- was deposited with the respondent and in view of the interest accrued for the said amount, the revision petitioner was continuing to be the tenant without paying any rent. He would further submit that when such relationship was prevailing https://hcservices.ecourts.gov.in/hcservices/ in between the parties, there is no question of payment of rent nor any default in the payment of such rent. He would also submit that the agreement reached in between parties on 21.10.1981 was an unregistered one with the nomenclature usufructuary mortgage and it was not produced before the courts below since the contents of the document was admitted by both parties. He would further submit that the courts below have relied upon the alleged agreement had in between parties on 09.08.1994 in respect of paying a sum of Rs.5,000/- as rent to the said premises keeping the deposited amount of Rs.50,000/- as advance without any proof produced by the respondent. He would also submit that the said document was obtained from the revision petitioner by exercising coercion and the said document would not be valid in law. He would also submit that when the said document was not valid in the eye of of law for want of proof there would not be any relationship of landlord and tenant. He would further submit that the said previous agreement in between parties on 21.10.1981 was not either replaced by the alleged agreement dated 09.08.1994 or by substitution of any agreement by the way of novation so as to create the relationship of landlord and tenant. He would also submit that the said document even though called as usufructuary mortgage and an unregistered document, it can be received in evidence for proving the collateral purpose. He would also submit that if the said document is admitted in evidence, the subsequent agreement stated to have been entered on 09.08.1994 would not sustain in view of the continuance of the relationship in between parties as per the earlier agreement. He would also cite a judgment of Delhi High Court reported in AIR 1971 Delhi 243(J.N.Banerjee v. Soham Lal Bhargava) for the principle that unregistered lease deed can be produced and received in evidence for proving the collateral purpose under Section 49 of the Registration Act. He would also rely upon a judgment of the Hon'ble Apex Court reported in AIR 1981 SC 1937 (Bhaiya Ramanuj Pratap Deo v. Lalu Maheshanuj Pratap Deo and others) for the same principle. 12. He would further submit in his argument that a person who obtained possession on the foot of a void usufructuary mortgage cannot obtain or claim title to the said property, even 12 years period had passed but can claim the right of usufructuary mortgagee he has cited a judgment of this Court reported in AIR 1921 Madras 410 (2) (Sontyanagopala Dasee and others v. Inapatalupula Rami and others) for the said principle. Quoting the aforesaid judgment, he would submit in his argument that the said agreement had in between parties on 21.10.1981 was an unregistered usufructory mortgage, it would create the right in between parties and the usufructory mortgagor can claim the right under the said usufructory mortgage. He would also submit that the said agreement dated 21.10.1981 is therefore, still having the force in between parties of this case. 13. He would also rely upon a judgment of Patna High Court reported in AIR 1959 Patna 164 for the said principle. He would https://hcservices.ecourts.gov.in/hcservices/ further quote a judgment of Rajasthan High Court reported in AIR 1960 Rajasthan (1) (Lakshmi Narain and another v. Kalyan and another) for the principle that a suit for redemption of the property under an unregistered mortgage deed could be filed. Relying upon the said judgment, he would submit in his argument that the parties to the agreement dated 21.10.1981 can enforce their right even though it was an unregistered usufructory mortgage. He would also refer to a judgment of Gujarat High Court reported in AIR 1972 Gujarat 204 (Pandya Vinodrai Ramrai v. Lavar Prabhudas Nathuram(deceased) and others) for the same principle. He would further submit in his argument that the relationship of parties under the said agreement dated 21.10.1981 was admitted and therefore, the said agreement could have been admitted in the evidence even though it was not registered as required under the provisions of Registration Act. He would cite a judgment of the Hon'ble Apex Court reported in AIR 2004 SC 3856 (Virendra Nath Thr. P. A. Holder R.R.Gupta v. Mohd.Jamil and others) to the effect that the oral evidence could be admitted for proving the collateral purpose and the nature of possession of property in dispute even though an unregistered document. He would also submit that the petitioner himself has admitted about the agreement dated 21.10.1981 in the pleadings therefore there would not be any impediment for permitting the petitioner to produce the said document as additional evidence. He would also submit in his argument that the oral evidence can be adduced by both parties as exempted against certain facts which are reduced in writing as per the provisions of Section 91 of Evidence Act. Apart from that, there was no valid consideration stated for entering into a subsequent agreement on 09.08.1994, omitting the earlier agreement dated 21.10.1981. In such circumstance, the subsequent agreement without valid consideration would be void as per the provision Section 25 of the Contract Act. He would also submit that the lease agreement stated to have been entered into between the parties on 09.08.1994 to which the revision petitioner did not admit that it was obtained with the consent but on exercise of coercion cannot also be admitted since it was a registered document and that, it was stated for more than 3 years. In the aforesaid circumstances, the admitted case of parties would go to show that there was an earlier agreement on 21.10.1981 which was an unregistered usufructory mortgage in which Rs.50,000/- has been paid by the revision petitioner for being in possession of the suit property and the same was continued for more than 13 years (even as per the case of the respondent) and therefore, the right created under the said usufructuary mortgage would prevail, over the relationship of land lord and tenant should not have established on the foot of 09.08.1994 document. He would also submit that the said document dated 09.08.1994 was not produced in evidence. Since the oral evidence in respect of a document was not admissible under Section 91 of the Evidence Act, the theory of creation of the relationship of landlord and tenant would not exist in between parties and therefore, it is very much required that the agreement dated https://hcservices.ecourts.gov.in/hcservices/ 21.10.1981 may be ordered to be received in evidence. He would also submit that the entire case of the respondent would be demolished, if the said document is admitted in evidence. He would further cite a judgment of the Hon'ble Apex Court reported in AIR 1971 SC 2289 (Fort Gloster Industries Ltd., v. Sethia Mercantile (P) Ltd.,) for the principle that the document required to be in writing cannot be proved other wise without producing the said document in evidence. He would also rely upon the judgment of this Court reported in AIR 1968 Madras 294 (Yasodammal and another v. Tanalei Ammal) for the principle that no relief can be granted on the basis of an unstamped document even though execution was admitted by parties. He would also rely upon a judgment of the Hon'ble Apex Court reported in AIR 1979 SC 154 (Haji C.H.Mohammed Koya v. T.K.S.M.A.Muthukoya) for the principle that the admission given by parties to a suit should be taken as a whole for consideration. He would further submit in his argument by referring to a judgment of High Court of Andhra Pradesh reported in AIR 1967 AP 211 (Abdul Hameed Khan v. Commissioner of Income Tax, Andhra Pradesh) for the principle that the admission given by parties can be withdrawn by producing necessary proof. He would also submit in his argument that there was no relationship of landlord and tenant and he was not liable to pay the rent payable to the premises and the agreement dated 21.10.1981 prevails and there would be no necessity to pay any rent. He would also submit in his argument that the admission given by the revision petitioner cannot be taken as an estoppel or in respect of a fact since that admission was given in ignorance of the legal right. He would also refer to a judgment of Hon'ble Apex Court reported in AIR 1976 SC 376 (Shri Krishan v. Kurukshetra University) for the said proposition. He would further submit that the alleged documents dated 09.08.1994 is not enforceable in law and therefore, it cannot be acted upon. He would further submit that the respondent (petitioner before learned Rent Controller) did not prove the document dated 09.08.1994 so as to establish the landlord and tenant relationship and no evidence was adduced to show that the document was a valid one and any oral evidence adduced would be barred under Section 91 of the Evidence Act and therefore, the case of the respondents that the relationship of landlord and tenant was in existence. He would also submit that the said document dated 09.08.1994 cannot be admitted in evidence in view of the bar under Section 49 of Registration Act and no collateral purpose could be established from the said document. Whereas the validity of the agreement dated 21.10.1981 was not questioned. He would further submit in his argument that the revision petitioner shall stand on his own legs and to prove his case and he cannot rely upon the weakness of the respondent. He would also submit in his argument that the subsequent agreement was not produced nor proved and therefore it cannot act as a complete substitute for the earlier agreement dated 21.10.1994 and therefore it cannot be considered as a novation to the earlier agreement. For that he relied upon a judgment of the Hon'ble Apex Court reported in 1975 AIR SCW 1352 or 3521, he would https://hcservices.ecourts.gov.in/hcservices/ also quote yet another judgment of the Hon'ble Apex Court reported in AIR 2000 (SC) 380 ( Lata Construction and others v. Dr.Rameshchandra Ramniklal Shah and another). Therefore, he would submit that the agreement dated 21.10.1981 even though an unregistered document could have been received as additional evidence so as to establish the case of the continued relationship in between parties as usufructary mortgage and mortgagee and the said relationship alone was continued and there was no creation of relationship of landlord and tenant. He would further submit that the said document is very much essential one for pronouncing the orders over the claim of the respondent/plaintiff, seeking for eviction of the revision petitioner. He would therefore submit that the respondent/plaintiff did not establish the case of the relationship of landlord and tenant and there would be no question of any payment of rent payable to the respondent/plaintiff and therefore there would be no wilful default and the respondent/plaintiff remedy would be before the Civil Court for redemption of usufructory mortgage. Therefore, he would submit that the findings of both the courts below even though concurrent, are not in accordance with law and the findings were not in accordance with the evidence adduced in the case and therefore, the said findings of the courts below have to be set aside and the revision be allowed and thereby the revision petition filed before the learned Rent Controller should be dismissed. 14. The learned Senior counsel appearing for the respondents would submit in his argument that the stipulation as mentioned in the document sought to be produced as an additional evidence dated 21.10.1981 in page No.1 of the typed set would show that the period of the said document was only for 4 years one month and thereafter, it would not continue and this would go to show that the relationship in between parties would not also continue, beyond that period. He would further submit in his argument that the said agreement was in between parties for 13 years and the revision petitioner alone convened a panchayat when the respondent/plaintiff had sought for surrendering of possession on payment of the said sum of Rs.50,000/- and the panchayatars have also come to the conclusion that the said amount paid for interest free, in lieu of the rent could be kept as advance and a sum of Rs.5,000/- was agreed to be paid as rent and was entered into between parties in presence of panchayatars and a document was also executed. He would also submit that the revision petitioner was the main cause for entering a substituted agreement in the year 1994 since the respondent demanded possession of the properties. He would further submit that the various pronouncements of Hon'ble Apex Court as well as High Courts as cited by the learned counsel for the respondent/plaintiff would not help the revision petitioner for producing the said document dated 21.10.1981 as additional evidence since he did not opt to produce the said document even on the first enquiry before the learned Rent Controller and thereafter, during the 2nd enquiry after the remand, before the https://hcservices.ecourts.gov.in/hcservices/ learned Rent Controller. He would also submit that the revision petitioner did not opt for producing such a claim in evidence on the second occasion before the learned Rent Control Appellate Authority in R.C.A.No.3 of 1997 and 4 of 1999. He would also submit that the reasons put forth by the learned counsel for the revision petitioner for receiving the said document as additional evidence are not sufficient and they are not in accordance with law, under Order 41 Rule 27 CPC. He would also submit that the said document dated 21.10.1981 was no doubt admitted by the respondent/plaintiff but it was not admissible in evidence and