C. Abdul Azeez v. P. Manoj

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **& THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 12TH DAY OF APRIL 2017/22ND CHAITHRA, 1939** **RCRev..No. 61 of 2015 ()** **-------------------------** **AGAINST THE JUDGMENT IN RCA 129/2008 of RENT CONTROL APPELLATE AUTHORITY, THALASSERY IN RCP 182/2007 of RENT CONTROL COURT, KANNUR** ## **REVISION PETITIONER/RESPONDENT/PETITIONER:** **--------------------------------------------** **C.M.ABDUL AZEEZ, S/O.M.ABDULLA HAJI (LATE), AMJA P.O, THANA, KANNUR-670 012.** ## **BY ADV. SRI.SUNIL V.MOHAMMED** ## **RESPONDENT/APPELLANT/RESPONDENT:** **-----------------------------------** ## **P.MANOJ, S/O.RAMACHANDRAN, "METRO CARS", NEAR BHIMA JEWELLARY, P.O. THANA, KANNUR-670 012.** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 12-04-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **PS** **K.HARILAL & RAJA VIJAYARAGHAVAN V., JJ.** ## **-----------------------------------------R.C.R. No.61 of 2015** ## **----------------------------------------Dated this the 12[th] day of April, 2017** ## **O R D E R** **--------------** ## _**Raja Vijayaraghavan,J.**_ 1.The petitioner herein, in his capacity as the landlord, filed a petition under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (“the Act” for brevity) claiming arrears of rent from his tenant, the respondent herein, at the rate of Rs.19,845/- per mensem, due on and from 1.8.2007. - 2.The tenant resisted the petition raising several grounds. He denied the landlord-tenant relationship. He also challenged the tenability of demanding enhanced rent on a stipulation contained in an unregistered Rent Kaicheet. 3.The Rent Control Court allowed the petition on all counts. R.C.R. No.61/2015 2 The provision in Annexure-A1 kaicheet stipulating enhancement of rent at the rate of 5% per annum was held to be valid. On its basis, it was held that the rent payable by the tenant was Rs.19,845/- as claimed by the landlord and that the arrears was due from 1.8.2007. Eviction was consequently ordered under the said provision. 4.The tenant preferred appeal. 5.The Appellate Authority relying on the case of **Chandrakala V Soman** (2004 (3) KLT 432) held that the stipulation in Exhibit A1 kaicheet dated 27.8.2005 that the rent of the schedule building will be increased at the rate of 5% per annum cannot be enforced due to nonregistration. The demand for arrears at Rs.19,845/- was refused holding that the rent can only be Rs.18,900/-. On all other grounds, the appeal was dismissed. Being aggrieved by the above, the landlord has come up in R.C.R. No.61/2015 3 revision. 6.Heard the learned Counsel appearing for the petitioner. Though notice was served on the respondent, no one appears. 7.The learned counsel submitted that the tenant having not challenged Exhibit A1, his admission as to the recitals will have to be accepted and the provision given affect to. The non-registration of the Kaicheet stipulating enhancement of rent is of no consequence, according to the learned counsel. It is further argued that there was no necessity to get the lease deed registered and the respondent was bound to pay the enhanced rent as and when it came due. 8.We have considered the submissions. 9.Section 17 (1) (e) of the Registration Act, 1908 provides that leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly R.C.R. No.61/2015 4 rent is to be compulsorily registered. Section 49 of the Act XVI of 1908 speaks of the effect of non-registration of documents required to be registered. It says that no document required by Section 17 of the Act to be registered or by any provision of Act 4 of 1882 to be registered shall affect any immovable property comprised therein or confer any power to adopt or be received as evidence of any transaction affecting such property or conferring such power unless it has been registered. The proviso to the section provides for receiving as evidence of a contract in a suit for specific performance under Chapter II of Act 3 of 1877 or as evidence of any collateral transaction not required to be effected by a registered instrument. 10.We are unable to accept the contention of the learned counsel that the term of lease and claim for enhanced rent would be collateral transactions excepted as per the R.C.R. No.61/2015 5 proviso to section 49 of Act XVI of 1908. Identical question was raised before this Court in **Paul V Saleena** (2004 (1) KLT 924) and a Division Bench of this Court had held that an unregistered lease deed cannot be pressed into service to create, declare, assign, limit or extinguish any right in or to the property comprised in the document. In paragraph No. 5 of the judgment it was held as follows :- “5. ……………….. The lease deed is admittedly an unregistered one. This Court has laid down the law in Paul's case (supra) that an unregistered lease deed cannot be pressed into service to create, declare, assign, limit or extinguish any right, title or interest in or to the property comprised in the document. Reference may also be made to the decision of the Apex Court in Anthony v. K. C. Itoop, AIR 2000 SC 3523. Under S.49 of the Registration Act no document requiring registration under S.17 or by any provision of the Transfer of Property Act is to affect any immovable property comprised therein or to be received as evidence of any transaction affecting such property unless it is registered. An unregistered document cannot be admissible in evidence to prove its terms, R.C.R. No.61/2015 6 though it can be put in evidence for collateral purpose. The term of lease, claim for enhanced rent are not collateral purpose. Rate of rent is an important ingredient of the rental agreement. If the landlady wanted to create any right in her favour for revision of rent after a period of two years the same could be done only through a registered document. Unregistered lease deed cannot be pressed into service to create any right for revision of rent. Consequence of non registration of a document has been dealt with in S.49 of the Registration Act. S.49 bars reception in evidence of document or proceeding which is required to be registered under S.17 of the Registration Act but not registered. Unregistered lease deed could at best be looked into for ascertaining the commencement of possession, rate of rent or similar other provisions which are collateral to the principal transaction. Since the document is unregistered one, in our view, if the landlady wanted a revision of rent, the remedy available to the landlady is to approach the Rent Control Court for fixation of fair rent. Therefore we are in agreement with the finding of the Rent Control Court and Appellate Authority that the landlady is entitled to get rent only at the rate of Rs. 450/- per month or otherwise fixed by the Rent Control Court by way of fixation of fair rent.” R.C.R. No.61/2015 7 11.The observations in **Chandrakala** squarely apply to the facts of the instant case as well. Lease of immovable property reserving yearly rent can only be by a registered document. The rate of rent is an important ingredient of the rental agreement. An unregistered lease deed cannot be pressed into service to create any right for revision of rent. An unregistered lease deed could at best be looked into for ascertaining the commencement of possession, rate of rent or similar other provisions which are collateral to the principal transaction. If the revision petitioner wanted a revision of rent, the remedy available to him is to approach the Rent Control Court for fixation of fair rent. We respectfully concur with the view in **Chandrakala** (supra) . 12.After having evaluated all the relevant aspects, we are of the view that the finding of fact recorded by the Appellate Authority does not suffer from any error of law. We are R.C.R. No.61/2015 8 satisfied about the correctness, legality, regularity and propriety of the order passed by the Appellate Authority. We find no reason to interfere with the same. This revision petition fails and the same is dismissed. **Sd/K.HARILAL, JUDGE** **sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** ps/21/4/17