Patna High Court – Orders
M/S Sharda Educational Society vs Sri Sheo Kumar Singh on 17 December, 2024
Author: Khatim Reza
Bench: Khatim Reza
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVISION No.87 of 2023
======================================================
1. M/S Sharda Educational Society Registered office At K-45, Mohalla-
Hanuman Nagar, Kankarbagh, Patna through its President Sri Arun Kumar
Singh, present, address C/o Open Mind Birla School, Village-Brahmpur,
P.O.-New Jaganpura, Subhash Nagar, P.S. Ram Krishna Nagar, District
Patna PIN Code-800027.
2. Sri Arun Kumar Singh, son of Late Ram Niwas Singh, resident of M/s
Sharda Education Society, Resident of A/P, P.C. Colony, P.O.-Lohiya Nagar,
P.S. Kankarbagh, District-Patna-800020.
... ... Petitioner/s
Versus
1. Sri Sheo Kumar Singh son of Late Mathura Singh, resident of Village-
Brahmpur, P.S. Ram Krishna Nagar, District and Town-Patna.
2. Sri Sudhir Kumar @ Sudhir Singh, Son of Late Mathura Singh, resident of
Village-Brahmpur, P.S. Ram Krishna Nagar, District and Town-Patna.
3. Sri Binod Kumar Singh, son of Late Mathura Singh, resident of Village-
Brahmpur, P.S. Ram Krishna Nagar, District and Town-Patna.
4. Sri Prem Ranjan Kumar, son of Late Mathura Singh, resident of Village-
Brahmpur, P.S. Ram Krishna Nagar, District and Town-Patna.
5. Sri Rajesh Kumar Singh, son of Sri Ram Layak Singh, Secretary of M/S
Sharda Educational Society, Resident of Raj Neeta Enclave, C.C.-48, P.C.
Colony, Kankarbagh, near Patliputra Sports Enclave, P.O. and P.S.
Kankarbagh, District and Town-Patna-800020.
... ... Opp Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. J. S. Arora, Sr. Adv with
Mr. Manoj Kumar, Adv.
For the Opp Parties : Mr. K.N. Choubey, Sr. Adv. with
Mr. Amaresh Kumar Sinha, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
CAV ORDER
28 17-12-2024
Heard Mr. J. S. Arora, learned senior counsel for the
petitioners and Mr. Kamal Nayan Choubey, learned senior
counsel for the opposite parties.
2. By the impugned order dated 24-01-2023 passed in
Title Eviction Suit No. 56 of 2022 the learned court below has
rejected the petition filed by the petitioners-defendants praying
for rejection of the plaint under order 7 Rule 11(a) and (d) of the
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2/24
3. The plaintiffs filed the suit bearing Title Eviction Suit
No. 56 of 2022 on the ground of breach of terms and condition
of tenancy as well as for default in payment of rent and also for
decree for arrears of rent of Rs. 3,28,92,096.77/-. The case of
the plaintiffs is that they are the owners and landlords of the
suit premises. It is further case of the plaintiffs that defendants
approached the plaintiffs and requested them to let out the said
land to construct a building over the said land to run educational
institution. At the request of the defendants, the plaintiffs had
agreed to let out the schedule-1 land on the terms and conditions
agreed between the plaintiffs and the defendants. It is further
contended that a registered lease agreement was executed on
17-10-2011 duly signed by both the lessors and lessees for a
fixed period of 33 years commencing from 01-10-2011 and
ending on 30-09-2044 on monthly rent of Rs. 92,550/- with
condition to increase 7% per year. The period of 01-10-2011 to
31-03-2013 was offered by the lessors to the lessees for
construction of a school building over the said land. It is further
agreed that during the said period the lessees would pay only
Rs.1000/- per month to each of the lessors for the entire land in
question. The possession of the land was handed over to the
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lessees by the lessors on 01-10-2011. It was agreed that during
the said period the lessees would construct and develop a
multistoried building over the said land for the purpose of
running educational institution with all facilities and amenities
on their own cost and the lessees would neither claim nor adjust
amount in constructing the school building etc., and shall not
deduct any amount from the monthly rent. Subsequent to the
execution of the said lease agreement, the lessees approached
the Bank to obtain loan of Rs. six crores for construction of the
building for School, namely “Open Mind” Birla School over
the said land. It is further contended that the Bank asked the
lessee to execute equitable mortgage of the said land for
sanction of the land as collateral sureties. Thereafter, the lessee
requested the plaintiffs- lessors to execute equitable mortgage of
the land as they were the owners of the said land. On the request
of the defendants-lessees, the plaintiffs became ready to execute
equitable mortgage of the said land for the said purpose with the
consent of both the plaintiffs-lessors and defendants-lessees.
Some modification was made in the terms and conditions of the
previous registered lease, and as such, for the said modification
with their consent a supplementary lease deed was executed on
15-02-2013 duly signed by both the parties. It is further
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contended that said supplementary lease (unregistered) was
executed in continuation of the previous lease deed. Thereafter,
the plaintiffs agreed to execute equitable mortgage of their land
for sanction of loan amount of Rs. Six crores for construction of
school building. It is further pleaded that the supplementary
lease deed was executed for modification of some terms and
conditions of the previous lease deed so the supplementary
lease deed does not require to be registered. As per previous
lease, monthly rent for the leased premises was fixed Rs.
92,550/- per month which was to be enhanced at the rate of 7%
each year , but according to the modified terms in the said
supplementary lease deed, the monthly rent was fixed @ Rs. 9
per sq. ft for the constructed super built up area which would be
enhanced time to time. The school building would be
constructed over 27500 st. ft each floor and expected
constructed area up to G+3 would come to 1,37,500/- sq. ft. It
was also agreed that the monthly rent would be calculated on
the basis of constructed portion of the building and the same
would be enhanced gradually. It was also agreed that the lessors
would pay 75% of total cost of construction with interest
imposed by the bank and the rest 25% of the amount would be
returned to the lessees by the lessors without any interest. It
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was also agreed that the amount would be paid by the lessors
from the monthly rent of the building and after
adjustment/payment of entire loan amount the lessors would be
entitled to get the monthly rent of the said building.
4. Further case of the plaintiffs’ is that it was agreed that
the loan would be obtained and disbursed in the name of lessee
and it had to be declared that the lessors had mortgaged their
land to the Bank and the entire construction of the School
Building should belong to the lessors from the day of erection
and that the lessee should have no claim over the said school
building at any point of time except the tenancy right. In case of
default in payment of rent, the lessees would make itself liable
to vacate the premises and hand over the premises to the lessors.
As per the terms of the lease agreement, loan amount with
interest of the Bank has been adjusted by the lessee in the
monthly rent since 01.04.2013 to July 2021, and as such, the
monthly rent since 2021 @ Rs. 28,71,000/- has become due on
the lessors against lessees. In spite of demand made by the
plaintiffs through legal notice, the defendants are not paying the
rent to them, and as such, the defendants have become defaulter
in payment of the rent. Further case of the plaintiffs is that they
served a notice U/s-106 of the T.P. Act. through registered post
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dated 25.04.2022 terminating the tenancy of the defendants of
the lease premises on the expiry of 31st day of May 2022
requesting them to vacate the premises on 01.06.2022 and to
pay the arrears of rent. The plaintiffs further contended that
defendants have committed breach of the terms of the tenancy
and have also defaulted in payment of the rent and that the
tenancy of the defendants has already been terminated as
required under the law, but they have not vacated the premises
as yet and hence the suit.
5. On summons, the defendants- petitioners appeared in
the said Eviction Suit and filed their written statement stating
therein that the facts having been stated above whereby the said
suit was barred by law. A separate petition under Order VII Rule
11 CPC was also filed for rejection of the plaint as the cause of
action for the said suit was based on the said supplementary
lease agreement (unregistered).
6. Upon considering the averments made in the plaint, the
learned trial Court rejected the application filed under Order VII
Rule 11(a) and (d) of the CPC and held that the lease agreement
between the parties executed and registered and supplementary
lease agreement (unregistered) which is part of the registered
lease agreement and as per averments made in the plaint, the
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present suit is maintainable, and as such, the present suit is not
barred by the law. Therefore, the petition filed by the
defendants-petitioners under order VII Rule 11 CPC was
dismissed.
7. Aggrieved by the judgment and order dated
24-01-2023 passed in Title Eviction Suit No. 56 of 2022 by the
Court of learned Sub Judge-1, Patna, the present Civil Revision
application has been filed by the defendants- petitioners.
8. Mr. J.S. Arora, learned senior counsel, representing the
petitioners submitted that the learned Trial Court failed to
consider the mandates of Order VII Rules 11(a) and (d) of the
CPC. It is submitted that under Order VII Rule 11, a duty is cast
on the Court to determine whether the plaint discloses a cause of
action by scrutinizing the averments in the plaint read in
conjunction with the documents relied upon or whether the suit
is barred by any law. Learned senior counsel further submits
that when a document referred to in the plaint, forms the basis
of the plaint, it should be treated as part of the plaint. The
learned Court below would determine if the assertion made in
the plaint are contrary to the statutory law or judicial decision,
for deciding whether a case for rejecting the plaint at the
threshold is made out. It is submitted that the tenancy created
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between the parties through registered lease deed on 17-10-2011
on the terms and conditions, as mentioned therein, it is apparent
from the registered lease deed that after completion of the said
building in terms of the said lease deed rent became due and
payable w.e.f. April, 2013 and prior to that in terms of the deed
of lease only Rs. 1,000/- per month was payable to each of the
plaintiffs-landlords. The petitioners were regularly sending the
said amount of Rs. 1,000/- per month to each of the opposite
parties up to March 2013 through Account Payee cheques. It is
further contended that w.e.f. April 2013 in terms of the said
lease rent amount of Rs. 92,550/- per month became payable
in four equal parts to each of the opposite parties. The
petitioners wanted to start payment of rent at the said rate, but
the opposite parties did not receive the same. In such situation,
the petitioners are constrained to tender the said amount to each
of the opposite parties through money order, but they did never
receive. It is further pleaded that the present suit has been filed
on the basis of supplementary unregistered lease deed dated
15-02-2013 by which some modification was made in the terms
and conditions of the previous registered lease deed and it is
alleged that the said supplementary lease deed was executed in
continuation of previous lease deed. The said lease was for a
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fixed period of 33 years commencing from 01-10-2011 and
ending on 30-09-2044. In terms of the modified unregistered
lease deed, the monthly rent was fixed at Rs. 9 per sq. ft for the
constructed super built up area amounting to Rs. 28,71,000/-
per month since 01-04-2013 to July 2021. The said amount has
not been paid by the defendants-petitioners, and as such the
defendants have become defaulters in payment of rent.
9. From a bare perusal of the plaint, it would appear that
cause of action for the suit arose on 25-04-2022 when the notice
under Section 106 of the Transfer of Property Act, 1882
(hereinafter referred to as ‘the Act’) was sent to the defendants
terminating the tenancy of the defendants and on the expiry of
31st day of May 2022, when the tenancy was terminated as
alleged by them. Learned senior counsel submitted that the
terms and conditions of registered lease deed dated 17-10-2011
is only binding on the parties and subsequent unregistered deed
(supplementary lease deed) was containing complete contrary
terms of lease, as contained therein, is not binding upon the
defendants-petitioners. It is well – settled principle of law that
the terms and conditions of a registered document can only be
varied or altered by another registered document only. Reliance
has been placed in the case of Sunil Kumar Roy vs. Bhowr
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Kankanee Collieries Ltd and others reported in (1970) 3 SCC
565 wherein, the Hon’ble Apex Court has held that “it is well
settled that a document which varies the essential terms of the
existing registered lease, such as the amount of rent must be
registered. Registration of an agreement is necessary which
reduces the rent of an existing registered lease. Any reduction
in the rate of royalty could not have been effected by means of a
document which had not been registered under the Registration
Act.”
10. Learned senior counsel further contended that there
was complete lack of cause of action in the plaint in question
and that the suit was barred by law since in view of section 49
of the Registration Act, 1908 (hereinafter referred to as ‘the Act
of 1908’) no court is required to rely on any document which is
compulsorily registrable, but the same is not registered. It is
submitted that the learned court below while passing the
impugned order failed to appreciate that the entire cause of
action to bring that suit was based on the unregistered lease
deed. There is no averments in the plaint that the defendants are
defaulters as per terms and conditions of the registered lease
agreement dated 17-10-2011, and as such, no question of cause
of action arose on the point of being defaulters.
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11. Learned senior counsel for the petitioners draws the
attention of the Court towards paragraph no.5 of the plaint
which reads as follows:-
“5. That subsequent to the execution of
the said Lease Agreement the Lessee approached
the Bank to obtain loan of Rs. Six Crore for
construction of the building for school “Open
Mind” a Birla School over the said land. Bank
asked the lessee to execute equitable mortgage of
the said land for sanction of loan as collateral
securities. Thereafter, the lessee requested the
plaintiffs lessors to execute equitable mortgage of
the land as they were the owners of the said land.
On the request of the lessee the plaintiffs became
ready to execute equitable mortgage of their said
land. On the request of the defendant lessee the
plaintiffs became ready to execute equitable
mortgage of their said land but for the said
purpose with the consent of both the plaintiff
(lessors) and defendants (lessees) some
modification was made in the terms & conditions
of the previous lease and as such for said
modification with their consent a supplementary
lease deed was executed on 15.02.2013 duly signed
by both the parties, the plaintiffs and the
defendants. The said supplementary lease was
executed in continuation of the previous lease
deed. Thereafter, the plaintiffs agreed to execute
equitable mortgage of their land for sanction of
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for School “Open Minds.”
12. It is further contended that the plaintiffs’ claim made
on the basis of the modified terms in the said supplementary
lease deed, which transpires from paragraph nos. 7 and 10 of the
plaint, which read as follows:-
“7. That as said above as per previous
lease the monthly rent for the leased premises was
fixed Rs. 92,550/- per month which was to be
enhanced @7% each year but according to the
modified terms in the said Supplementary lease
deed the monthly rent was fixed @ Rs. 9/- per sq.
ft. for the constructed Super built up area which
would be enhanced time-to-time. It was also
agreed during the further negotiations that the
building would be constructed over 27500 sq. ft.
each floor and expected constructed area up to
G+3 would come to 1,37,500 sq. ft. It was also
agreed that the monthly rent would be calculated
on the basis of constructed portion of the building
and the same would be enhanced gradually.
10. That as per the terms of the Lease
Agreement loan amount with interest of the Bank
has been adjusted by the lessee in monthly rent
since 01.04.2013 to July 2021 and as such the
monthly rent since 2021 @ is 28,71,000/- has
become due of the Lessors against lessees.”
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13. Learned senior counsel vehemently submitted that the
provisions of Order VII Rule 11 is mandatory in nature. It states
that the plaint “shall” be rejected if any of the grounds specified
in clauses (a) to (e) is made out. If the Court finds that the
plaint does not discloses a cause of action or that the suit is
barred by any law, the Court has no option, but to reject the
plaint. From the averments made in the plaint, it would appear
that the cause of action arose on the basis of failure of terms
enumerated in the unregistered supplementary lease deed dated
15-02-2013, which has altered the registered lease deed dated
17-10-2011, which is in violation of section 49 of Act of 1908.
Reliance has been placed in the case of Bhaiya Ramanuj
Pratap Deo Vs. Lalu Maheshanuj Pratap Deo & Ors. reported
in AIR 1981 SC 1937. Learned senior counsel further places
reliance in the case of Dr. Arun Kumar Singh & Anr. versus.
Smt. Radha Devi, reported in (2015)3PLJR 407, wherein, this
Court has held that “the terms and conditions of a registered
document can only be varied or altered by another registered
document only.”
14. It is further argued by the learned senior counsel that
it is the case of the plaintiffs that the defendants have defaulted
in payment of rent as per rent under the supplementary lease
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and not as per the registered deed of lease. By alleging default
on the basis of supplementary unregistered lease deed the
plaintiffs have contended that on account of non- payment of
rent the defendants have become liable to be evicted from the
suit premises. It is the admitted case of the plaintiffs that the
lease deed dated 17-10-2011 is registered one, which has been
duly executed by both the parties. The plaintiffs have admitted
that there is another supplementary unregistered lease deed and
the rate of rent given therein has not been paid by the defendants
and, therefore, defendants have become defaulter in payment of
rent. The said supplementary lease deed being barred under
Section 49 of the Act of 1908, for which no cognizance can be
taken by any court of law. Hence, the suit is liable to be rejected
under Order VII Rule 11 of the Code of Civil Procedure as the
same is apparent on the face of the plaint on the basis of
statement made in the plaint.
15. Per contra, Mr. K.N.Chaubey, learned senior counsel
for the opposite parties vehemently opposed the submissions
made by the petitioners and contended that unless the
defendants seeking rejection of plaint are able to bring the case
within any one of the clauses found in Rule 11 of Order VII
CPC, they cannot succeed in getting the plaint rejected. It is
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also his contention that the question ‘whether a plaint can be
rejected or not?’- has to be decided based on the averments
made in the plaint and the documents filed along with the plaint
and not based on the defence plea made in the written statement
under order VII Rule 11 of the CPC. It is further submitted that
Clauses (a) and (d) of Order VII Rule 11 deals with absence of
disclosure of cause of action and the suit appearing from the
statement to be barred by any law. Whether the plaint discloses
a cause of action for the suit or not, has got to be decided only
based on the averments made in the plaint and the documents
produced along with the plaint. The cause of action alleged may
not be true or may be a deliberate falsehood. The court dealing
with a petition under Order VII Rule 11 cannot go into the
question whether cause of action alleged in the plaint is true or
false and take a decision based on the defence plea taken by the
defendants or based on the documents produced by the
defendants. Moreover, the ground for rejection of plaint, Order
VII Rule 11(d) shall get attracted only where the statement as
made in the plaint without any doubt or dispute shows that the
suit is barred by any law for the time being in force. It is further
contended that averments made in the plaint and the
documents relied upon establish a cause of action, allegations in
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the plaint prima facie show a cause of action, the court cannot
embark upon an enquiry whether the allegations are true in fact.
16. The scope, ambit and exercise of power under Order
VII Rule 11 of CPC has been aptly discussed in the case of
Kamala and Ors. Vs. K.T. Eshwara Sa & Ors. reported in
(2008)12 SCC 661 and paragraph no.21 of the judgment would
be relevant for the issue:
“21. Order 7 Rule 11(d) of the Code has
limited application. It must be shown that the suit
is barred under any law. Such a conclusion must be
drawn from the averments made in the plaint.
Different clauses in Order 7 Rule 11, in our
opinion, should not be mixed up. Whereas in a
given case, an application for rejection of the
plaint may be filed on more than one ground
specified in various sub-clauses thereof, a clear
finding to that effect must be arrived at. What
would be relevant for invoking clause (d) of Order
7 Rule 11 of the Code are the averments made in
the plaint. For that purpose, there cannot be any
addition or subtraction. Absence of jurisdiction on
the part of a court can be invoked at different
stages and under different provisions of the Code.
Order 7 Rule 11 of the Code is one, Order 14 Rule
2 is another.”
17. The learned senior counsel for the opposite parties
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places reliance on the judgment in the case of P.V. Guru Raj
Reddy represented by GPA Laxmi Narayan Reddy & Anr. Vs.
P. Neeradha Reddy & Others reported in (2015) 8 SCC 331
wherein the Hon’ble Apex Court has held that “rejection of the
plaint under Order 7 Rule 11 of CPC is a drastic power
conferred in the court to terminate a civil action at the
threshold. At the stage of exercise of power under Order 7 Rule
11, the stand of the defendants in the written statement or in the
application for rejection of the plaint is wholly immaterial. It is
only if the averments in the plaint ex facie do not disclose a
cause of action or on a reading thereof the suit appears to be
barred under any law the plaint can be rejected. In all other
situations, the claims will have to be adjudicated in the course
of the trial.” Learned senior counsel places reliance upon
submission made in the plaint as well as registered lease deed
dated 17-10-2011 and submits that in paragraph nos. 10 and 11
of the registered lease deed the lessees (petitioners) were to
mortgage the said land in which lessors agreed to sign as
guarantors for securing loans from the Bank. The lessees will
give all their properties in collateral security to the said land
worth of Rs. five crores and in case of NPA declared by the
Bank the properties of lessees will be first auctioned. The
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petitioners, under the aforesaid clauses of the said lease deed,
faced difficulty in obtaining loan from the Bank. So they
approached the lessors and gave a proposal to them to directly
mortgaged their leased landed property with the Bank
themselves to secure six crores loan from it without any
collateral security from the lessees. Since in the aforesaid
proposal, there was a substantial deviation from the said lease
deed agreement, the lessors on a condition of change in the
original lease deed agreement by way of supplementary lease
deed agreed to mortgage the said property with the Bank which
was accepted by the lessees and accordingly a registered
mortgage deed was executed with the Bank by the lessors for
securing loan of Rs. Six crores. As per the aforesaid mutual
agreement reached between the parties, at the time of mortgage
of the properties by the lessors, a supplementary lease deed
dated 08-02-2013 was prepared and executed by the parties. It
is further stated that as per Clauses 13,14, and 15 of the
supplementary lease deed, it was agreed between the parties
that lessees will start paying the rent of the lease premises to the
lessors after all the loan amount is liquidated and paid to the
Bank and the loan amount has been paid during the period from
01-04-2013 to July 2021. The rent of the aforesaid period of the
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leased premises was adjusted in liquidation of loan amount of
the bank by the lessees as per the supplementary lease
agreement. So for total of about 9 years lessees did not pay any
rent to the lessors. It is also submitted that the petitioners never
gave any amount of rent either under the registered lease
agreement or under the supplementary lease agreement. As per
the provisions of registered lease agreement, the lessees had to
give rent by way of cheques, but instead of doing so they have
cooked up their story for making their case by way of making
statement that they were sending rent amount through money
order to the lessors. In fact, under the provisions of registered
lease deed, on default of payment of rent for six months by
lessees the said lease agreement will automatically come to an
end. The supplementary lease deed has been acted upon by the
parties. For nine years the lessees were silent and taking the
benefit of supplementary lease deed, but now they are running
away from their liabilities. Learned senior counsel further
submitted that in the aforesaid facts and circumstances, doctrine
of estoppel is applicable against the defendants. Reliance has
been placed in the case of B.L. Sreedhar & Others v. K.M.
Munireddy (Dead) & Others reported in AIR 2003 SC 578.
18. Having considered the submissions made by the
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parties and averments in the plaint which is germane to the
objects of Order 7 Rule 11 (a) CPC is that if in a suit, no cause
of action is disclosed, or the suit is barred by limitation under
Rule 11(d), the court would not permit the plaintiff to
unnecessarily protract the proceedings in the suit. In such a case,
it would be necessary to put an end to the sham litigation, so
that further judicial time is not wasted. This view has been
taken in the case of Dahiben vs. Arvindbhai Kalyanji
Bhanusali (Gajra) Dead through legal representatives &
Others reported in (2020) 7 SCC 366.
19. The whole purpose of conferment of powers under this
provision is to ensure that a litigation which is meaningless, and
bound to prove abortive, should not be permitted to waste
judicial time of the court. This view has been taken by the
Hon’ble Supreme Court in the case of Azhar Hussain v. Rajiv
Gandhi reported in 1986 Supp SCC 315.
20. The scope of Rule 11 of Order VII CPC has been
explained in various decisions and the legal principles deducible
are that, if the plaint does not disclose the cause of action or is
barred by law: can be rejected where the litigation was utterly
vexatious and abuse of process of Court. The test for exercising
the power under Order 7 Rule 11 is that if the averments made
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in the plaint are taken in entirety, in conjunction with the
documents relied upon would the same result in a decree being
passed. In the case of Hardesh Ores(P) Ltd v. Hede & Co.
reported in (2007) 5 SCC 614 the Hon’ble Apex Court held that
it is not permissible to cull out a sentence or a passage, and to
read it in isolation. It is the substance, and not merely the form,
which has to be looked into. The plaint has to be construed as it
stands, without addition or subtraction of words. (Liverpool &
London S.P. & I Assn. Ltd. Vs. M.V. Sea Success I & Anr.).
21. From the plain reading of the plaint, it would appear
that the suit is filed for default in payment of rent and breach
of terms of tenancy and also for non -payment of arrears of
rent for 09 years. It further appears that the tenancy was
terminated on 31st day of May, 2022. The arrears of rent has
been calculated in terms of supplementary lease deed which was
not registered. The Hon’ble Apex Court has discussed the effect
of non registration of a lease deed which was required to be
registered as per the law in the case of K.B. Saha and Sons
Pvt. Ltd. vs. M/S Development Consultant Ltd. reported in
(2008) 8 SCC 564 in which the Hon’ble Apex Court has held as
under:-
“32. In the case of Bajaj Auto Limited vs.
Behari Lal Kohli [AIR 1989 SC 1806], this Court
Patna High Court C.R. No.87 of 2023(28) dt.17-12-2024
22/24observed that if a document is inadmissible for non
registration, all its terms are inadmissible
including the one dealing with landlord’s
permission to his tenant to sublet. It was also held
in that decision that if a decree purporting to
create a lease is inadmissible in evidence for want
of registration, none of the terms of the lease can
be admitted in evidence and that to use a document
for the purpose of proving an important clause in
the lease is not using it as a collateral purpose.
Again this court in Rai Chand Jain Vs. Chandra
Kanta Khosla [AIR 1991 SC 747] reiterated the
above and observed in paragraph 10 as under:
“10……..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 of
the tenant only is not at all legally correct. It is
well settled that unregistered lease executed by
both the parties can be looked into for collateral
purposes. In the instant case the purpose of the
lease is evident from the deed itself which is as
follows: “The lessor hereby demises House No.
382, Sector 30A, Chandigarh, to lessee for
residential purposes only”.
Patna High Court C.R. No.87 of 2023(28) dt.17-12-2024
23/24
22. It is apparent from the above decision, that if a
document is inadmissible in evidence for want of registration,
none of its terms can be admitted in evidence and that to use a
document for the purpose of proving an important clause would
not be using it as a collateral purpose.
23. In the present case, plaintiffs-opposite parties in its
plaint have relied upon various clauses of said unregistered
supplementary lease agreement and on that basis plaintiffs have
filed the suit alleging default in payment of rent on the basis of
unregistered document modifying the terms of a registered deed
of lease which is not liable to be taken into consideration in
view of the decision in the case of Sunil Kumar Roy (supra).
24. In such view of the matter, the terms of tenancy
between the parties has to be considered on the basis of
registered lease deed dated 17-10-2011.The learned trial court,
while considering the said registered lease deed, has held that
the supplementary lease deed (unregistered) is the part of
registered lease deed dated 17-10-2011. This finding is in the
teeth of the aforesaid judgment of the Hon’ble Supreme Court.
25. For the foregoing reasons, this civil revision is
allowed.
26. The impugned order dated 24-01-2023 passed by the
Patna High Court C.R. No.87 of 2023(28) dt.17-12-2024
24/24
learned Sub Judge-I Patna in Title Eviction Suit No. 56 of 2022
is hereby set aside and the matter is remanded to the learned
court below to decide the application filed by the defendants-
petitioners under Order VII Rule 11(a) &(d) of the CPC afresh
in accordance with law after hearing the parties.
(Khatim Reza, J)
shyambihari/-
U