Kandambath Achamveettil Sathyabhama v. Potti Purayil Sharafunnisa

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 21[ST] DAY OF MARCH 2022 / 30TH PHALGUNA, 1943 O.P.(RC) NO. 97 OF 2021** **AGAINST THE ORDER DATED 22.09.2021 IN I.A.NOs.9 OF 2021 AND 10 OF 2021 IN R.C.P.NO.20 OF 2018 OF THE RENT CONTROL COURT (MUNSIFF), PAYYANNUR** ## **PETITIONER:** **KANDAMBATH ACHAMVEETTIL SATHYABHAMA,** **AGED 60 YEARS, DAUGHTER OF SEKHARA PODUVAL, RESIDING AT KANDAMBATH ACHAN VEETTIL, PAYYANNUR AMSOM, KOKKANISSERI DESOM, PAYYANUR TALUK, KOKKANISSERY P.O., KANNUR DISTRICT, PIN-670 307.** **BY ADVS. C.MURALIKRISHNAN (PAYYANUR) ABRAHAM GEORGE JACOB AKSHAY R** ## **RESPONDENT:** **POTTI PURAYIL SHARAFUNNISA** **WIFE OF LATE IBRAHIM, RESIDING AT JARMEES VILLA, PERUMBA, CHATTARIKOVVAL, VELLUR ASMOM, KANDOTH DESOM, PAYYANUR TALUK, P.O.PAYYANNUR, KANNUR DISTRICT, PIN-670 307.** **BY ADVS. M.V.AMARESAN S.S.ARAVIND** **THIS OP (RENT CONTROL) HAVING COME UP FOR FINAL HEARING ON 10.03.2022, THE COURT ON 21.03.2022 DELIVERED THE FOLLOWING:** 2 O.P.(RC) No. 97 of 2021 ## **JUDGMENT** ## Ajithkumar, J. This original petition under Article 227 of the Constitution of India is filed by the petitioner in R.C.P.No.20 of 2018 on the file of the Rent Control Court (Munsiff), Payyannur. He challenges Ext.P8 order of the Rent Control Court. 2. The petitioner had filed R.C.P.No.20 of 2018, a copy of which is Ext.P2, for eviction under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965. Allegation of the petitioner in the rent control petition was that the respondent-tenant defaulted payment of rent from 01.09.2017 onwards. Balance rent at the rate of Rs.4000/per month from 1.11.206 to 31.8.2017 also has been in arrears. It was asserted that the rate of rent initially was Rs.20,000/- per month and since 01.11.2016 it has been at the rate of Rs.24,000/- per month. The respondent filed Ext.P3 counter statement contending that the rate of rent was Rs.10,000/- only and on account of insistence of the son of 3 ## O.P.(RC) No. 97 of 2021 the petitioner, the rate happened to be stated in the agreement as Rs.20,000/-. The biennial increase agreed was Rs.10%, whereas the same happened to be stated at Rs.20% also. Rent has been paid till 28.02.2018, but the petitioner issued receipts for the rent paid upto 31.08.2017 only. Since the petitioner refused to issue proper receipts, rent thereafter was not paid. 3. On the said pleadings, the trial started. The petitioner was examined as PW1. The respondent reported that she had no oral evidence. It was at that stage, the petitioner filed Exts.P4 and P5 applications seeking to reopen the evidence and to recall PW1 for the purpose of proving Ext.P1 agreement. The respondent filed objection to both the petitions, which are Exts.P6 and P7. As per Ext.P8 common order, the Rent Control Court dismissed both the applications, holding that the provisions of Order XVIII, Rule 17 of the Code of Civil Procedure, 1908 could not be invoked in the case. It was further opined by the Rent Control Court that reopening of the evidence would result in protraction of the proceedings. 4 O.P.(RC) No. 97 of 2021 4. On 01.10.2021, the original petition was admitted and notice was ordered to be issued to the respondents. Disposal of R.C.P.No. 20 of 2018 of the Rent Control Court, Payyannur, was deferred for a period of one month. Interim order was extended from time to time and is still in force. 5. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 6. Exts.P4 and P5 applications were filed by the petitioner after closing the evidence in R.C.P.No.20 of 2018. The contention of the petitioner is that a copy of Ext.P1 was produced along with the rent control petition and its original was produced before commencement of the trial, but due to inadvertence, it was not proved through PW1. The petitioner thought of proving it while the respondent would be examined as a witness; but the same did not materialise since the respondent did not mount the box. The learned counsel appearing for the petitioner would contend that Ext.P1 is the document essential for a just decision in the case and hence 5 O.P.(RC) No. 97 of 2021 PW1 is required to be recalled and re-examined. 7. The learned counsel appearing for the respondent would contend that the attempt of the petitioner is to fill up lacuna in evidence and even on recalling PW1, the desired purpose would not be served inasmuch as, Ext.P1 is an inadmissible document. It is pointed out that Ext.P1 is a rent deed for a period of five years and as it is undervalued and unregistered, it cannot be received in evidence. Therefore, the Rent Control Court has rightly has dismissed Exts.P4 and P5 applications, the learned counsel submits, no interference to Ext.P8 order is warranted. 8. Order XVIII of the Code is applicable to Rent Control Court by virtue of the provisions of Section 23(1)(d) of the Act. Order XVIII, Rule 17 of the Code is a provision empowering the court to recall any witness, who has already been examined and to put any questions to him as the court may think fit at any stage of the proceedings. It is substantially a provision giving power to the court to recall and re-examine a witness in order to enable the court to 6 O.P.(RC) No. 97 of 2021 arrive at a just decision in the case. Certainly, the court can recall and re-examine a witness on the motion of a party to the proceedings also, provided the court is convinced that the interest of justice requires such a course and also that such further evidence is essential for a just decision of the case. The fact that the court has recorded closure of the evidence on either side may not be a bar to recall and re-examine a witness; since the power under Order XVIII, Rule 17 of the Code can be exercised at any stage of the proceedings, which implies that this power can be invoked at any time before finally disposing of the case. 9. The main objection is that Ext.P1 being an inadmissible document, the request for recalling and reexamining PW1, the sole purpose of which being proving of the said document, cannot be allowed. The learned counsel appearing for the petitioner would contend that Ext.P1 is not a rent deed requiring registration and therefore the said objection does not sustain. Section 17(1)(d) of the Registration Act, 1908, makes it mandatory that a lease of 7 ## O.P.(RC) No. 97 of 2021 immovable property for any term exceeding one year shall be registered. Section 107 of the Transfer of Property Act, 1882 also mandates that a lease of immovable property for a period of more than one year is to be compulsorily registered. The question therefore is whether Ext.P1 is a rent deed as envisaged in the said provisions. 10. On going through Ext.P1, it can be seen that after ordering eviction in R.C.P.No.35 of 2013 filed earlier by the petitioner against the respondent, they arrived at a settlement to postpone surrendering of the demised premises to the landlord. Regarding continuance of possession by the respondent, a few conditions were mutually agreed. One among the conditions was that the rent shall be Rs.20,000/per month with a biennial increase of 20%. Only if the tenancy is created by the document, the same would be a lease deed requiring registration. On the other hand, where the terms of the arrangement already agreed to between the parties are reduced into writing, it amounts to only an agreement. Ext.P1 has the character of a document of which 8 ## O.P.(RC) No. 97 of 2021 kind is a matter not yet considered by the Rent Control Court, and therefore, we leave it for being considered by the Rent Control Court and to take a decision on the question. 11. Even on taking that Ext.P1 is a rent deed, and its admission in evidence is hit by the provisions of Section 49(c) of the Registration Act, the question remains is whether the same can be received in evidence for using it for collateral purpose as allowed in the proviso to Section 49. This Court in **Sai Service Station Ltd. v. Dileep Ganesh [2022 (1) KLT 845]** followed the principle enunciated by the Apex Court in **Satish Chand Mukhan and others v. Goverdhandas Byas** **and others [AIR 1984 SC 143].** It was held that where a lessee remained in possession under an unregistered deed of renewal of lease, such deed of renewal was inadmissible in evidence under Section 49 except for the collateral purpose of proving the nature and character of his possession. In **Rai Chand Jain v. Miss Chandra Kanta Khosla [AIR 1991 SC 744]** , the Apex Court held that an unregistered lease deed can be looked into for collateral purposes like for ascertaining 9 ## O.P.(RC) No. 97 of 2021 whether the purpose of the lease was residential or not. 12. What is a collateral purpose has been considered by this Court in **Aniyan T.V. and another v. T.K.Raveendra** **[2012 (4) KLT 786].** In paragraph 20, this Court enumerated the collateral purposes, one among which is, for ascertainment of commencement of possession, rate of rent, etc. In view of the above, we are of the view that the Rent Control Court went wrong in rejecting the applications on the ground that Ext.P1 being unregistered, was not receivable in evidence. 13. If the Rent Control Court finds that Ext.P1 is a rent deed, another question will crop up; whether it is sufficiently stamped and if not, what shall be the course to be adopted by the Court? In Ext. P1 the monthly rent agreed is Rs. 20,000/and the period agreed is 5 years. If it is not merely an agreement, having executed it on a stamp paper worth Rs. 100/- only, it is insufficiently stamped. In order to admit that document in evidence it is necessary to impound and realise deficit stamp duty and penalty as provided in Order XIII Rule 10 O.P.(RC) No. 97 of 2021 8 of the Code and Section 34 of the Kerala Stamp Act, 1959. If it is not tendered in evidence also, the Court has a duty to impound as obligated in Section 33 of the Kerala Stamp Act and to forward it to the Collector for necessary action under Section 37. 14. Section 33 of the Kerala Stamp Act says that when any instrument chargeable with duty is produced before an authority empowered to receive evidence, or a person in charge of a public office, other than a Police Officer, or when any such instrument is produced or comes in performance of his functions, he shall impound the same, if it appears to him that such instrument is not duly stamped. Therefore, it is obligatory on the Court or the officer to impound the insufficiently stamped instrument, when such an instrument is produced before him or it comes before him in the performance of his function. 15. The decision of this Court in **Ramachandran K. P.** ## **v. District Registrar (General) and Others, 2019 (3)** **KHC 136** may be referred to in the above regard, where it 11 ## O.P.(RC) No. 97 of 2021 was held, “when an insufficiently stamped instrument comes to the notice of the Court/empowered person, it is incumbent upon the Court/empowered person under S.33 of the Act to impound such instrument, irrespective of the purpose for which it was produced before the Court or the party who produced it before them. In short, mere production or casual appearance of insufficiently stamped instrument before the Court/empowered person, in the performance of functions is sufficient for invoking the power of impounding, envisaged under S.33 of the Act. We make it clear that the prayer for receiving or admitting the instrument is not required for invoking the power to impound the same under S.33 of the Act.” 16. Procedure to be followed if the document is not admitted in evidence is also elaborated in the following words, “11. xxx xxx S.37(1) and (2) prescribes as to how the impounded instrument shall be dealt with. The procedure to be adopted is prescribed under S.37(1) and 12 O.P.(RC) No. 97 of 2021 (2) of the Act. According to S.37(1), if the instrument is admitted in evidence and penalty is imposed, the Registering Officer shall, under S.34, send an authenticated copy of such instrument to the District Collector, together with the certificate in writing, stating the amount of duty levied and shall send such amount to the District Collector or to such person appointed on that behalf. 12. According to S.37(2) in every other case, the person so impounding an instrument shall send it in original to the District Collector. It follows that the instrument, which was impounded, but not admitted in evidence, would fall under S.37(2) of the Act. In other words, the instrument, which was impounded under S.33, but not admitted in evidence, shall be sent to the District Collector, as prescribed under S.37(2), for imposing penalty under S.39(b) of the Act.” 17. By saying the above we do not mean that Ext. P1 is insufficiently stamped. As pointed out above that question is 13 ## O.P.(RC) No. 97 of 2021 left open to be decided by the Rent Control Court. 18. The Rent Control Court relied on **Vadiraj Nagappa Venekar (dead) through LRs. v. Sharadachandra Prabhajkar Gogate [(2009) 4 SCC 410]** to dismiss the applications. It was held in the said decision that if the parties resort to protracting tactics, the court shall not exercise its discretion in favour of reopening evidence for bringing in more evidence. The Apex Court in **Maria Margarida v. Erasmo Jack de Sequeria [(2012) 5 SCC 370]** held that 'truth is the foundation of justice. The function of the court is to find out the truth. The court has to always keep in mind that 'every trial is a voyage of discovery in which truth is the quest'. In order to bring on record a relevant fact, the court has to play an active role; no doubt within the bounds of the statutorily defined procedural law.' 19. It may be noted that Ext.P1 was produced by the petitioner along with the rent control petition itself. It was on account of inadvertence on the part of the counsel, it was not able to be brought in evidence. In the light of the principle of 14 O.P.(RC) No. 97 of 2021 law adverted to above, it is the duty of the court to find out the truth. When a document, which was produced in time, is shut out only on account of a mistake on the part of the party or counsel, it would certainly amount to travesty of justice. Section 23(2) of the Act empowers the Rent Control Court to suo motu summon and examine any person, whose evidence appears to be material. Such being the position of law, the Rent Control Court ought not to have disallowed Exts.P4 and P5 applications. Therefore, we hold that Ext.P8 order is unsustainable in law and liable to be set aside. In the above circumstances, this original petition is allowed and on setting aside Ext.P8 order, Exts.P4 and P5 applications are allowed. The Rent Control Court will proceed with the trial strictly in accordance with law untrammelled by any of the observations made above. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 15 O.P.(RC) No. 97 of 2021 ## **APPENDIX OF OP (RC) 97/2021** ## **PETITIONER EXHIBITS** - **Exhibit P1 A TRUE COPY OF THE AGREEMENT DATED 01.12.2014 EXECUTED BETWEEN THE PETITIONER AND RESPONDENT** - **Exhibit P2 A TRUE COPY OF THE RENT CONTROL PETITION IN RCP 20.2018 ON THE FILES OF RENT CONTROL COURT (MUNSIFF) PAYYANNUR** - **Exhibit P3** - **A TRUE COPY OF THE COUNTER STATEMENT FILED BY RESPONDENT IN RCP 20/2018 ON THE FILES OF RENT CONTROL COURT (MUNSIFF), PAYYANNUR** **Exhibit P4** - **A TRUE COPY OF THE APPLICATION IA 09/2021 FILED BY THE PETITIONER IN RCP 20/2018 ON THE FILES OF RENT CONTROL COURT (MUNSIFF) PAYYANNUR** **Exhibit P5** - **A TRUE COPY OF THE APPLICATION IA 10/2021 FILED BY THE PETITIONER IN RCP 20/2018 ON THE FILES OF RENT CONTROL COURT (MUNSIFF) PAYYANNUR** **Exhibit P6** **A TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT IN IA 09/2021 FILED BY THE PETITIONER IN RCP 20/2018 ON THE FILES OF RENT CONTROL COURT (MUNSIFF) PAYYANNUR** - **Exhibit P7** **A TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT IN IA 10/2021 FILED BY THE PETITIONER IN RCP 20/2018 ON THE FILES OF RENT CONTROL COURT (MUNSIFF) PAYYANNUR** 16 ## O.P.(RC) No. 97 of 2021 **Exhibit P8** **A TRUE COPY OF THE COMMON ORDER IN IA 09/2021 AND 10/2021 IN RCP 20/2018 PASSED BY RENT CONTROL COURT (MUNSIFF) PAYYANNUR**