[2012] 6 S.C.R. 984

AHMEDSAHEB (D) BY LRS. & ORS.

SAYED ISMAIL (Civil Appeal Nos. 5316-5318 of 2012 etc.)

JULY 19, 2012

[T.S. THAKUR AND FAKKIR MOHAMED IBRAHIM

KALIFULLA, JJ.]

Rent Control and Eviction - Suits for recovery of arrears C - Decreed by trial and first appellate cburt - In second appeal High Court non-suited the land-lord on the ground that the rent-deed was not registered and _hence not admissible in evidence - On appeal, held: Since the relationship of landlord and tenant was .established, and the tenant had admitted D the default, the /and-lord could not have been non-suited on the sole ground that rendeed was not admissible in evidence

- Admission of a party is the best evidence and does not need any corroboration - In view of second para of s. 107 of TP Act, status of parties on the basis of undisputed facts as land-lord E and tenant can always be accepted and the rights of the parties can be worked out on that basis - Decree modified as regards the rent and the total amount due - Transfer of Property Act, 1882 - s. 107 - Registration Act, 1908 - Evidence

- Admission.

F Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 - Eviction petition - On the ground that suit for recovery of rent was decreed, and statutory period of six months was over - Petition decided ex-parte and allowed directing eviction - Order confirmed by first appellate court - G In Revision, High Court remitted the matter to Rent Controller to decide the matter afresh - On appeal, held: Since the application has been dismissed by Rent Controller after remission, the appeal become infructuous and hence dismissed.

H 984

AHMEDSAHEB (D) BY LRS. & ORS. v. SAYED

ISMAIL

Civil Appeal Nos. 5316-53143 of 2012:

The appellants filed civil suits in the years 1974, 1977 and 1980 against the respondent for recovery of arrears of rent for the period from October 1971 to November

1980. Trial court d.ecreed the suit, and the same was confirmed by the first appellate Court. In second appeal, High .Court set aside the judgment and decree passed by the courts below, on the ground that the rent deed marked as exhibit 69 cannot be legally accepted in evidence as the same was not registered.

in the present appeals, the appellants contended that even if the rent deed was not registered, it can be relied

upon for the collateral purpose of ascertaining the rent and as to whether the tenant was liable to pay such rent.

SLP (C) No. 23457/2001:

fhe petitioners (who were also the appellants in CA Nos. 5316-5318 of 2012) filed petition u/s. 15 of Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 for eviction of the respondent-tenants (the respondent in CA E Nos. 5316-5318 of 2012), on the ground that since the petition for recovery of rent was decreed; and that the statutory period of 6 months was over, the tenant was liable to be evicted. The case was decided ex-parte by the Rent Controller, allowing ttie petition. Appellate court F declined to interfere with the order of Rent Controller. In revision, High directed to give an opportunity of hearing to the tenant and to allow him to place on record his Written Statement and also as'ked the land-lords to comply with the requirements of s. 15(2)(i) of the Act.

G Thus, setting aside the orders of courts below, remitted the matter back to Rent Controller. Hence the present petition.

In the petition to this Court, it was brought to the H

A notice of the Court that after the remittal, the Rent

Controller had dismissed the application and appeal against the order was pending before appellate court.

Allowing the appeal Nos. 5316-5318 of 2012 and B dismissing SLP (C) No. 23457 of 2001 as infructuous, the Court

HELD:

Civil Appeal Nos. 5316-5318 of 2012:

1.1 The High Court ought to have upheld the decree for payment of arrears of rent by either directing the trial Court to calculate the actual amount payable by respondent or by modifying the decree to that extent.

0 [Para 12] [994-F]

Anthony v. K. C. lttoop and Sons and Ors. 2000 (6) SCC 394: 2000 (1)Suppl. SCR 645 - relied on.

1.2. The appellants could not have been non-suited E solely on the ground that Exhibit-69 was not admissible in evidence. Admission of a party in the proceedings either in the pleadings or oral is the best evidence and the same does not need any further corroboration . .Vital aspect in the case (viz) the admission of the respondent in the written statement about the rate of rent and the F further admission about its non-payment for the entire period for which the claim was made in the three suits was sufficient to support the suit claim. The High Court failed to note the said factor. Even while eschewing Exhibit-69 from consideration, the High Court should G have noted that the relationship of land-lord and tenant as between the plaintiffs and the defendants was an established factor and the rate of rent was admitted as Rs. 800/- per year. [Para 10] [992-D-G]

H 1.3. In the light of the provisions contained in second

AHMEDSAHEB (D) BY LRS. & ORS. v. SAYED 987

!SMAIL

para of Section 107 of Transfer of Property Act, the status A of the parties on the basis of undisputed facts pertaining to the demised premises as land-lord and tenant can always be accepted and the rights of the parties can be worked out on that basis. [Para 5] [990-E-F] ·

B 1.4. The plea that Exhibit 69, though an unregistered document, can still be relied upon for collateral purposes, cannot be accepted. Exhibit 69 was relied upon not for any collateral purpose but for the support of the main 'claim of arrears of rent. The suit was for arrears of rent and Exhibit 69 was filed to show the agreement of lease C of the demised premises, the other terms of the lease and the rate of rent between the parties. In that respect, the conclusion of the High Court as regards Exhibit 69 cannot be faulted. [Para 13] [994-G; 995-A-C]

S. Kaladevi vs. V.R. Somasundaram and Ors. (2010) 5 SCC 407: 2010 (6 ) SCR 480 - distinguished.

1.5. Therefore, while upholding the judgment and decree of the trial court as confirmed by the lower E appellate court in holding that the respondent is liable to pay arrears of rent for the period from October 1971 to November 1980, The court only modifies the rent payable with actual rent due in a sum of Rs. 7200/- and the decree to that extent is granted. [Para 16] [996-C] F SLP (C) No. 23457 of 2011:

2. Having regard to the subsequent development relating to the Rent Control proceedings in which the appeal preferred by the petitioner is stated to be pending G before the District Judge, the Court is not inclined to accede to the submission of the petitioner though C.A.

Nos. 5316-5318/2012 preferred against the common judgment in Second Appeal Nos.148-150/92 was allowed.

Such a shortcut method cannot be resorted to, based on H

A the submission of the petitioner. It is for the petitioners to work out their remedies in the Rent Appeal pending before the District Judge, in the light of the judgment passed in the Civil Appeal Nos. 5316-5318/2012. In the light of the decision in C.A.Nos.5316-5318/2012 and in the B light of the fact that after the order of remittal passed in

Civil Revision Application, the rent control proceeding having been concluded before the Rent Controller, it will have to be held that the petition has to be dismissed as having become infructuous. [Paras 19 and 20] [997-H; c 998-A-C, D-E]

Case Law Reference:

2000 (1) Suppl. SCR 645 Relied on.

2010 (6) SCR 480 Distinguished.

Para 11

Para 13

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5316-5318 of 2012.

From the Judgment and Order dated 6.5.2011 of the High E Court of Bombay, Bench at Aurangabad in Second Appeal

Nos. 148/1992 and 150/1992.

WITH

SLP @ No. 23457 of 2001.

Vivek Solshe, C.G. Solshe for the Appellants.

Shirish K Deshpande, Ashok Kumar Gupta II for the Respondent.

The Judgment of the Court was delivered by

FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. lhe parties in the above special leave petitions are common and the issue relates to the shop premises with regard to which proceedings were initiated before the Courts below which were dealt with by the High Court in the orders impugned in these

AHMEDSAHEB (D) BY LRS. & ORS. v. SAYED 989

!SMAIL [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

petitions and, therefore, the same are being disposed of by this A common order.

CIVIL APPEAL NOS. OF 2012(@ SLP (C) NOS. 26049-51

OF 2011)

2. Leave granted.

Challenge in these appeals is the orders of the learned Single Judge of the High Court of Bombay at Aurangabad dated 06.05.2011 passed in Second Appeal Nos. 148-150/ 1992.

3. To trace the brief facts, the appellants herein filed Regular Civil Suit No.167 of 1974, RCS No.211 of 1977 and RCS No.240of1980 against the respondent herein for recovery

of arrears of rent for the period covering October 1971 to D November 1980. The suits were decreed by the trial Court and the same was also confirmed by the lower appellate Court.

However, the High Court set aside the judgment and decree of the Courts below on the sole ground that the rent deed marked as Exhibit-69 cannot be legally accepted in evidence for the purpose of recovery of rent and consequently the decree granted in favour of the appellants based on such inadmissible document cannot be sustained. While holding so, the High Court placed reliance on Anthony v. K. C. lttoop & Sons & Ors. [2000

(6) sec 394].

4. Assailing the judgment of the High Court, the counsel for the appellants contended that even if the rent deed was not registered, as required under the provisions of the Registration

Act and Transfer of Property Act, it can be relied upon for the collateral purpose of ascertaining the rent and as to whether G the respondent was liable to pay such rent fot the period for which it was claimed by the appellants. Counsel for the respondent would, however, contend that there is no question of relying upon such document by way of collateral means and,

A therefore, the impugned judgment of the High Court does not

call for interference.

5. Having heard learned counsel for the respective parties and having perused the material papers, we are constrained

8 to state that though there can be no two opinion that the rent deed relied upon by the appellants being an unregistered document cannot form the basis to support the claim of the appellants for recovery of rent due, if we are able to find that in the case on hand there were other uncontroverted evidence available on record to support the claim of the appellants that C would be sufficient to uphold the decree for recovery of rent from the respondent. We also wish to point out that such other materials which existed should have been accepted by the High Court while examining the correctness of the order of the Courts below. We also wish to state that that very decision which was D relied upon by the High Court, while laying down the principle

that an unregistered document cannot be legally accepted in evidence to support the claim of the parties in regard to the respective status as lessor and lessee and vice versa as well as other recitals therein relating to rent, etc., in the light of the E provisions contained in second para of Section 107 of Transfer of Property Act itself, the status of the parties on the basis of undisputed facts pertaining to the demised premises as landlord and tenant can always be accepted and the rights of

F the parties can be worked out on that basis.

6. To elaborate our conclusions, we wish to point out that when the appellants filed the first suit in RCS No. 167/1974, the suit was laid for recovery of the rent amounting to Rs. 3150.68/- being the rent payable by the respondent for the G immediately preceding three years of the filing of the suit.

According to the appellants, it was let out on 19.10.1971 for one year on a monthly rent of Rs. 83.32/- based on a rent note and that from the very first date the respondent failed to pay the rent. It was also averred that while initially it was governed by Exhibit 68 in which the rent was fixed at Rs.83.32/- the rent H

was subsequently revised at Rs. 1150/- per year from A 26.10.1973 under Exhibit 69. It was contended that such revised rent was payable by the respondent from then onwards and that he failed to pay that rent as well. ·

7. As against the above claim, according to the respondent 8 the tenancy was entered into by him with the 8th respondent, namely, Abdul Rehman in the Second Appeal in the year 1968 and the rent was fixed at Rs.800/- per year. As far as nonpayment of rent was concerned the same was not disputed by the respondent. The respondent however sought to explain it by saying that he carried out repairs by investing a sum of Rs.

C 5000/- and the appellants agreed to adjust the said sum from the rents payable to him. It was based on the above pleas that the parties went into trial.

8. The trial Court after examining the evidence rendered D a categorical finding that the stand of the respondent was not supported by any legally admissible evidence, that the said Abdul Rehman himself admitted that the plaintiff Smt. lmambee wife of SK Mehtab Sahe~ who is none other than his mother was the owner of the shop and that the shop was rented out to E the respondent only by his mother lmambee. The other respondents were the brothers and sisters of Abdul Rehman who also took a clear stand that it was only lmambee who was the owner of the demised premises. The Courts below also reached a definite finding that right from 1971 the respondent F has not paid any rent to the plaintiff or even to the said Abdul Rehman.

9. As far as the adjustment of rent was concerned, the trial Court rendered a finding that though it was claimed in the written statement that the accounts registers were maintained to show G the adjustment of rents to cover the expenses of repairs carried out in the demised premises, nothing was placed before the Court in support of the said stand. Exhibit-85 was relied upon by the respondent which was a receipt issued by the said Abdul Rehman for Rs. 300/- towards rent for the shop and that H

A the said document did not in any way support the stand of the respondent. Such findings were recorded by the trial 9ourt in all the three suits based on the evidence before it. The lower appellate Court also sifted the evidence in detail and concurred with the conclusions of the trial Court as regards the non- 8 payment of rent right from day one of the respondent's induction into the demised premises.

10. Keeping the above undisputed facts in mind, when we examine the legal issue, at the very outset, it will have to be stated that even while holding that Exhibits 68-69 being C unregistered documents cannot be accepted in evidence, the

relationship of the appellants and the respondent as landlord and tenant was not in controversy. Even according to the respondent himself the rent payable was Rs.800/- per year which was admittedly not paid by him right from day one when D the tenancy commenced. It was an admitted case of the respondent that the rent was due from him from October, 1971 till the third suit was filed. We are unable to appreciate as to how the appellants could have been non-suited solely on the ground that Exhibit-69 was not admissible in evidence. It is E needless to emphasize that admission of a party in the proceedings either in the pleadings or oral is the best evidence and the same does not need any further corroboration. In our considered opinion, that vital aspect in the case (viz) the admission of the respondent in the written statement about the F rate of rent and the further admission about its non-payment for the entire period for which the claim was made in the three suits was sufficient to support the suit claim. The High Court failed to note the said factor while deciding the Second Appeal which led to the dismissal of the appeals. Even while eschewing G Exhibit-69 from consideration, the High Court should have noted that the relationship of landlord and tenant as between the plaintiffs and the defendants was an established factor and the rate of rent was admitted as Rs. 800/- per year.

11. In this context, when we refer to the decision in Anthony

(supra) relied upon by the High Court, we wish to point out that A while the learned Judge placed reliance upon paras 8 and 11 of the said decision, the learned Judge ought to have looked into other paragraphs of the same decision where this Court has made a specific reference to the second para of Section 107 of Transfer of Property Act to lay down the principle as B under in paras 12 to 14:

"12. But the above finding does not exhaust the scope of the issue whether the appellant is a lessee of the building. A lease of immovable property is defined in C Section 105 of the TP Act. A transfer of a right to enjoy a property in consideration of a price paid or promised to be rendered periodically or on specified occasions is the basic fabric for a valid lease. The provision says that such a transfer can be made expressly or by implication.

Once there is such a transfer of right to enjoy the property D a lease stands created. What is mentioned in the three paragraphs of the first part of Section 107 of the TP Act are only the different modes of how leases are created.

The first para has been extracted above and it deals with the mode of creating the particulafkinds of leases E mentioned therein. The third para can be read along with the above as it contains a condition to be complied with if the parties choose to. create a lease as per a registered instrument mentioned therein. All other leases, if created, necessarily fall within the ambit of the second para. Thus, F dehors the instrument parties can create a lease as envisaged in the second para of section 107 which reads thus:

"All other leases of immovable property may be G made either by a registered instrument or by oral agreement accompanied by delivery of possession."

"13.When lease is a transfer of right to enjoy the property and such transfer can be made expressly or by implication, the mere fact that an unregistered instrument H

came into existence would not stand in the way of the Court to determine whether there was in fact a lease otherwise than through such deed".

14. When it is admitted by both sides that the appellant was inducted into the possession of the building by the owner thereof and that the appellant was paying monthly rent or had agreed to pay rent in respect of the building, the legal character of the appellant's possession has to be attributed to a jural relationship between the parties. Such a jural relationship, on the fact situation of this case, cannot be placed anything different from that of lessor and lessee falling within the purview of the second para of Section 107 of the TP Act extracted above. From the pleadings of the parties there is no possibility for holding that the nature of possession of the appellant in respect of the building is anything other than as a lessee.".

(emphasis added)

12. When we apply the above principles laid down by this E Court in juxtaposition with the stand of the respondent that the lease was in fact created in respect of the demised premises on an annual rent of Rs.800/-, and the trial Court, based on the evidence placed before it, reached a categorical finding that such lease was between the plaintiff and the respondent based F on unimpeachable evidence available on record, having regard to the clear cut finding as regards the arrears of rent payable by the respondent, the High Court ought to have upheld the decree for payment of arrears of rent by either directing the trial Court to calculate the actual amount payable by respondent or by modifying the decree to that extent.

13. In the written submissions of the appellants, it was contended that Exhibit 69, though an unregistered document, can still be relied upon for collateral purposes. In support of the said contention reliance was placed upon the decision of this H Court in S. Kaladevi Vs. V.R. Somasundaram and Ors. -

(2010) 5 SCC 407. The said decision is clearly distinguishable.

A In the case on hand Exhibit 69 was relied upon not for any collateral purpose but for the support of the main claim of arrears of rent. The suit was for arrears of rent and Exhibit 69 was filed to show the agreement of lease of the demised premises, the other terms of the lease and the rate of rent s between the parties. Therefore, the contention that the document was filed merely for establishing some collateral transaction cannot be accepted. In that respect, the conclusion of the High Court as regards Exhibit 69 cannot be faulted.

However, for reasons set out in the earlier paragraphs of our c judgment we reiterate that the claim of the appellants for recovery of rent was established by the Defendant's own categorical admission about the rate as well its non-payment right from day one.

14. As far the decision now relied upon (viz) Kaladevi D

(supra) is concerned, that was a case where the suit was laid for specific performance and stress was made on the proviso to Section 49 of the Registration Act which specifically exclude the mandatory requirement of registration in the substantive part of Section 49 read along with Section 17 of the Transfer of E Property Act. This Court, therefore, held that the reliance placed upon the unregistered Sale Deed at least for the purpose of proof of an oral agreement of sale as a collateral transaction was permissible. This Court also made it clear that in such a situation the document in question can be received in evidence F by making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of the Registration Act. Therefore, the said decision in the facts and circumstances of the case is clearly distinguishable.

15. We are, therefore, of the view that the dismissal of the suit on the simple ground that Exhibit 69 was not a registered document cannot be accepted. Having regard to our above conclusion, the appeals deserve to be allowed. Since the claim of the plaintiff has been lingering from the year 1971, we do

A not wish to relegate the parties once again to the Court below

for the simple purpose of ascertaining the arrears. Since the respondent admitted the annual rent payable as Rs.800/- per year, the claim being from October 1971 to November 1980, namely, for 9 years by simple arithmetic, the arrears can be B worked out to a sum of Rs.2400/- in RCS No.167/1974, Rs.

2400/- in RCS No.211/1977 and another Rs.2400 in RCS No. 24011980, in all a sum of Rs.7200/-.

16. Therefore, while upholding the judgment and decree of the trial Court as confirmed by the lower appellate Court in C holding that the respondent is liable to pay arrears of rent for the period from October 1971 to November 1980, we only modify the rent payable with actual rent due in a sum of Rs. 72001and the decree to that extent is granted. The appeals stand allowed. The impugned order of the High Court is set D aside and the judgment and decree of the trial Court and the

lower appellate Court stand restored with the above modification as regards the rent and the total amount due.

SLP (C) No.23457/2011 E

17. This Special Leave Petition arise out of the judgment and decree passed by the Single Judge of the High Court of Judicature at Bombay in Civil Revision Application No.424 of 1987 dated 06.05.2011. The said revision was preferred by the respondent challenging the order of the Rent Controller dated F 13.01.1986 in file No.1979.R.C.A.3 in Rent No.1/86. The said petition was filed before the Rent Controller under Section 15 of Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 for eviction of the defendant from House No.3-3-32 situated at Udgir. The plaintiff in RCS No.167/1974 along with G her son Ahmed Saheb was the petitioner. The plaint for eviction was on the ground that RCS No.16717 4 for recovery of rent was decreed, that the default in making the payment of rent was willful, that the tenancy was terminated on 6.12.1978, that the statutory period of six months was over and, therefore, the H respondent was liable to be evicted. The respondent in the

eviction petition did not file the written statement for a period A of six years. The rent controller found that even on the date of final hearing the tenant and his Advocate failed to appear and, therefore, it was decided ex parte. After hearing the arguments of the plaintiff the application for eviction was allowed and the respondent was directed to deliver vacant possession. The B respondent-tenant preferred file No.1979.R.C.A.3 in Rent No.1 / 86 before the District Judge, Latur. The appellate Court declined to interfere with the order of the Rent Controller and the appeal was dismissed.

18. By the impugned order, the High Court held that the C respondent tenant should be directed to place on record the written statement by giving an opportunity of hearing. While

holding so the learned Judge also noted that since even the appellant did not lead any evidence, while permitting. the respondent to file written statement, the .appellant can be D directed to comply with the requirements of Section 15 (2)(i) of the Hyderabad Houses (Rent, Eviction and Leases) Control Act, 1954 in respect of tendering of rent and whether default was committed by the respondent and accordingly set aside the orders of the Court below and remit the matter back to the E Rent Controller for rendering a decision in accordance with law by fixing a time schedule.

19. Before us the learned counsel appearing for the respondent submitted that after the order of remittal the.Rent Controller dismissed the application. Learned counsel also contended that as against the order of dismissal by the Rent Controller, the petitioner has preferred an appeal before the District Judge which is stated to ..be pending. Counsel for the petitioner in his submissions contended that since the G petitioners in Special Leave Petitions are common if the judgment in Second Appeal No.148-150/1992 is to be set aside, there should be a direction for eviction as against the respondent. Having regard to the subsequent development relating to the Rent Control proceedings in which the appeal

A preferred by the petitioner is stated to be pending before the Learned District Judge, we are not inclined to accede to the submission of the learned counsel for the petitioner though we have allowed C.A. Nos5316-5318/2012 (@ SLP (C) Nos.26049-51/2011 preferred against the common judgment s in Second Appeal Nos.148-150/92. Such a shortcut method cannot be resorted to based on the submission of the learned counsel for the petitioner. It is for the petitioners to work out their remedies in the Rent Appeal No. 2/2012 pending before the learned Principal District Judge, Latur in the light of the c judgment passed in the Civil Appeal Nos5316-5318/2012 (@

SLP© Nos. 26049-51/2011 ). In the light of our above conclusion, we do not find any necessity to traverse from the various other submissions made in the written submission of the respondent.

20. In the light of the decision in C.A.Nos5316-5318/ 2012(@ SLP (C) Nos.26049-51/2011) and in the light of the fact that after the order of remittal passed in Civil Revision Application No.424 of 1987 dated 06.05.2011, the Rent Control

Proceeding having been concluded before the Rent Controller, E it will have to be held that SLP (C) No.23457/2011 has to be dismissed as having become infructuous. Accordingly, while C.A.Nos ....... ./2012(@ SLP (C) Nos.26049-51 of 2011) stand allowed with specific directions as regards the Rent arrears payable by the respondent, the Special Leave Petition F No.23457 of 2011 stands dismissed as having become infructuous.

There will be no orders as to costs.

K.K.T.

Appeal allowed & SLP dismissed.