SHRUTI ENTERPRISES Vs. DAYA NAND

JUDGEMENT

(1.) This is a revision petition filed by the. tenant M/s Shruti Enterprises against the order of first appellate Court of Shri Raghuvir Singh, Senior Civil Judge. In brief, the case of the petitioner is that the tenanted premises situated at 9A, Hauz Khas, New Delhi have been let out to the petitioner firm vide lease deed dated 1st February 1991 for the commercial purposes including that of using the demised premises as a restaurant or for any other allied purposes. Some. of the relevant clauses which were referred to by the partics in the present case read as under:

(2.) The Lessor hereby agrees with the lessee as follows:

(3.) I have given a careful thought to the lacts appearing on the face of record of the Trial Court including the report of the Local Commissioner. An important fact which appears to have escaped attention of the Courts below and counsel for the parties is that the lease in question is neither on a stamp paper of requisite value nor it is registered. It is a lease for nine years and has not been registered as it appears from the photocopy on the record of the Trial Court. Under Section 17(1)(d) of the Registration Act, registration of a document granting lease for more than one year is compulsory. If such a document is not registered, then under the provisions of Section 49 of the said Act, it cannot be taken into consideration as evidence of the conditions therein and can be looked into only for the collateral purposes or such purposes, as arc permitted under the proviso to Section 49 of the Registration Act. Section 49 of the said Act reads as under:- "49. Effect of non-registration of documents required to be registered No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall - (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received evidence of any transaction affecting such property or conferring such power, unless it has been registered: PROVIDED that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (1 of 1877), or as evidence of part performance of a contract for the purposes of Section 53-A of the Transfer of Property Act, 1882 (4 of 1882), or as evidence of any collateral transaction "not required to be effected registered instrument. A reference be made in this connection to the case of Rai Chand Jain Vs.Chander Kama Khosla, reported as AIR 1991 SC 744 (749). For that reason also, this document cannot be looked into for the enforcement of any right thereunder except for the collatoral purpose of ascertaining the purpose of letting or to determine whether a party is in occupation of the premises as a tenant or not. The Trial Court as well as the First Appellate Court have gone into great details of the various conditions of the lease. Since the original document has not been placed on record, I am unable to impound the copy because it is only the document which could be impounded and not its copy. But impounding would only have cured the consequences of understanding. Even after curing the deficiency in the stamp duly, the said document of lease could not be used as evidence of the terms contained therein for want of registration except to the limited extent permissible under the proviso to Section 49 of Registration Act. Both the Courts below have fallen into error and proceeded on the wrong premises and have embarked upon an exercise to interpret various clauses of the lease deed and to ascertain what was permissible thereunder and what was not. A perusal o! the document for the limited purpose only shows that the properly was lei out for commercial purpose including running of a restaurant. In the absence of any other clause being available to any party for enforcement, their rights would be governed by the provisions of Transfer of Properties Act. Section 108(o) of Transfer of Properties Act permit such alterations as would make possible to the tenant to use the premises for the purpose for which it is purported to have been let. In the present case, it was admittedly let out for running a restaurant and for carrying out other commercial activities therefrom. The construction undertaken by the tenant has to be such as would be reasonable provided it is for the purpose for which properly was intended to be used. In this connection, a reference be made to the case of Pitamber Das Kalyanji Vs. Dattatraya Krishnaji, reported as AIR 1981 (Bombay) 388, where it was held as under- it is not every act done by the tenant which would amount to breach of Section 108(o) of the Transfer of Properties Act merely because some change or waste is suffered by the premises. An act, which a person of ordinary prudence using his own property would commit, is not waste although it damages the property. An act of the Lessee is reasonable provided it is for the purpose for which the property was intended to be used. An act done by the Lessee would amount to willful destruction if it is done with the intention and knowledge that such user would damage the property. The knowledge could be attributed to the Lessee provided the defects in the properly are patent and not latent. Neither the fact of the damage nor the evidence that act of the Lessee has resulted in damage, is sufficient by itself to warrant a conclusion."