IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE EIGHTEENTH DAY OF JUNE TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.966 of 2009 Between: Shaik Kareem .. Appellant AND Mohd. Khursheed Ali .. Respondent JUDGMENT: The second appeal is directed against the judgment and decree in A.S. No.198 of 2007 on the file of the XI Additional Chief Judge, City Civil Court, Hyderabad (Fast Track Court), dated 14-09-2009. O.S. No.5506 of 2003 was filed before the IX Junior Civil Judge, City Civil Court, Hyderabad for recovery of possession and arrears of rent claiming the plaintiff/owner/landlord to have let out the subject premises to the defendant on 25-08-1999 for a monthly rent of Rs.1,600/-. There was a rental agreement, dated 17-08- 2000. Alleging default in payment of rents and failure to vacate even after a notice to quit, dated 31-07-2003, the suit was filed for possession, arrears of rent and damages at Rs.2,500/- per month. The defendant, while admitting the lease, claimed the original rent to be Rs.400/- per month and he denied the rental agreement on 17-08-2000. The monthly rent as claimed by him is only Rs.600/- by the time of the suit and he claimed to have sent the rents by money order after refusal of the plaintiff since April, 2003. Questioning the jurisdiction of the Court in view of the quantum of rent and also the validity of the notice to quit, the defendant desired the suit to be dismissed. The trial Court framed issues about the questions of jurisdiction, validity of quit notice, liability of the defendant for eviction and the entitlement of the plaintiff for arrears of rent and damages. It examined P.Ws.1 to 3 and D.W.1 during trial and marked Exs.A.1 to A.6 and B.1 to B.13. The trial Court in its judgment, dated 29-01-2007 concluded that though Exs.B.1 to B.6 rent receipts were for Rs.600/- per month, they were subsequent to Ex.A.3 legal notice and as the burden of proving the facts alleged in defence is on the defendant, which was not discharged and as Ex.A.2 rental deed dated 17-08- 2000 showed the rent to be Rs.1,600/- per month, the plaintiff’s claims were held to have been probablised. The trial Court also concluded the notice to quit to be in tune with the provisions of Section 106 of the Transfer of Property Act and could not find any conduct on the part of the plaintiff which can be construed as waiver of the notice to quit. Consequently, the suit was decreed with costs granting two months time to the defendant to vacate and directing the plaintiff to file a separate application for ascertainment of mesne profits. In the appeal against the said judgment and decree, the XI Additional Chief Judge, City Civil Court, Hyderabad (Fast Track Court) in the judgment, dated 14-09-2009 found that Ex.A.2 was probablised by the evidence on record and the rent was, therefore, Rs.1,600/- per month. The jurisdiction of the civil Court was, hence, considered to be clear and the notice to quit was found to be legal and valid and more so, after the amendment to Section 106 of the Transfer of Property Act. The first appellate Court, therefore, confirmed the judgment and decree of the trial Court. The defendant came up with this second appeal again reiterating that the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 alone will apply either on the strength of the original rent of Rs.600/- per month or even on the strength of Rs.1,600/- per month after the amendment to the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 by A.P. Act 17 of 2005. The following substantial questions of law were claimed to have arisen in the second appeal, on which the same was admitted. 1. Whether Ex.A.2 being an unregistered lease deed, is admissible in evidence ? 2. Whether the quit notice dated 31-07-2003 is valid even if clear 15 days time is not given for terminating the lease ? 3. Whether the provisions of the Rent Control Act apply to the suit property even if the rent for the suit property is considered to be Rs.1,600/- in view of the amendment to the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act under Act No.17 of 2005 ? Sri B. Vijaysen Reddy, learned counsel for the appellant and Sri C. Kumar, learned counsel representing Sri P. Shiv Kumar, learned counsel for the respondent are heard. Question No.1: Even if Ex.A.2 lease deed were to be considered to be compulsorily registerable, in the light of the Proviso to Section 49 of the Registration Act, 1908, it can be still received as evidence of any collateral transaction not required to be effected by registered instrument. Precedents are in abundance holding that an unregistered document hit by Section 49 of the Registration Act, can still be received as evidence for collateral purpose of proving the nature of possession of a party. In the present case, both the parties admit that the plaintiff is the landlord and the defendant is the tenant of the subject premises and it is only the quantum of rent that is in dispute. Only to contradict the claims of the defendant about the quantum of rent being less, Ex.A.2 was introduced into evidence and that purpose may reasonably be construed to be collateral purpose permissible to be looked into by virtue of the Proviso to Section 49. Even if Ex.A.2 cannot be looked into at all altogether, in the light of the quantum of rent forming the basis for the lease, still the oral evidence of the plaintiff and the defendant is oath against oath and the probabilities discussed by the trial Court and the first appellate Court to rely on the evidence of the plaintiff and not the defendant are such as would make the conclusions in tune with ordinary and natural course of human events. It is difficult to comprehend that the property answering the description of the plaint schedule located in a central area of Hyderabad could have been leased out for a nominal rent of Rs.400/- or Rs.600/- per month and hence, it has to be concluded that the premises could have been let out for a monthly rent of Rs.1,600/- only and Ex.A.2 lease deed irrespective of its liability for registration or otherwise can be looked into for such collateral purpose. Question No.2: After the amendment of Section 106 of the Transfer of Property Act by Central Act 3 of 2003, the question of giving clear fifteen days time to vacate in case of monthly tenancy lost all its significance. Sub-section (3) of amended Section 106 making any deficiency in specifying such period to be not material for purpose of validity and legality of the notice to quit, was held by this Court to apply to pending proceedings also and therefore, the objection of the appellant on this count is no longer sustainable and in fact, that was the stand taken by the first appellate Court in its judgment which has to be up held. Question No.3: The provisions of the A.P. Amendment Act 17 of 2005 amending the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 were held by majority of a five-Judge Bench of this Court in Ramvilas Bajaj v. Ashok Kumar[1] to be prospective in operation and the amended provisions were positively held inapplicable to any pending proceedings by the date of amendments. Though the said judgment is said to be under challenge before the Apex Court, admittedly, the same has not been suspended so far. An order of stay of recovery of possession or dispossession of the tenant in an individual case before the Apex Court cannot be equated to ordering the operability of the five-Judge Bench judgment being suspended. The ratio laid down by the five-Judge Bench is binding on this Court and cannot be deviated from. Therefore, this question also has to be answered in the negative. The second appeal has to, therefore, fail, but the appellant claimed by the learned counsel to be in difficulty to secure an alternative residential accommodation, is claimed to be requiring reasonable time to vacate. The respondent cannot resist such request and grant of four months time can be considered as reasonable and just on the facts and circumstances. In the result, the second appeal is dismissed without costs, but the appellant is granted four months time from today to vacate and deliver possession of the subject property to the respondent. _____________________ G. BHAVANI PRASAD, J Date: 18-06-2010 Svv [1] 2007 (4) ALT 348 (L.B.)