Debasish Kar Gupta, J.:--
1. This appeal is directed against the judgment and decree dated June 7, 2010 passed by the learned Chief Judge, Chief Bench, City Civil Court at Calcutta in the matter of Park Street Properties (P) Limited v. Dipak Kumar Singh & Anr. The impugned judgment and decree was passed in respect of a suit for recovery of khas possession of a joint tenancy of a portion of the ground floor of Premises No. 55, Park Street, P.S. Park Street, Kolkata-16, three godowns bearing Nos. 13, 15 and 16 lying and situated on the ground floor of Premises No. 47, Park Street, P.S. Park Street, Kolkata-16 (hereinafter referred to as the suit premises). It was decreed on contests in favour of the plaintiff/respondent (hereinafter referred to as the respondent) directing the defendants/appellants (hereinafter referred to as the appellants) to vacate the suit premises within 3 months with liberty to execute the decree for taking possession of the suit premises in case of failure on the part of the appellants to vacate the suit premises in compliance of the above direction.
2. The facts of the case in a nutshell are as under:
Karnani Properties Limited, a company incorporated under the Companies Act, 1956 was the owner of the suit premises. The aforesaid Karnani Properties Limited let out the suit premises in favour of the plaintiff with right to sub-let the same or portions thereof.
3. The respondent entered into an agreement dated October 15, 2004 with the appellants sub-letting the suit premises for the purpose of carrying on a business therefrom under the name and style Blue Fox Restaurant .
4. Subsequently, the appellants requested the respondent to allow them to run franchise or business dealing with Macdonald s Family Restaurant from the suit premises. The respondent agreed to the above proposal. The aforesaid agreement dated October 15, 2004 was terminated and a tenancy of the suit premises was created in favour of the appellants on the basis of an unregistered agreement dated August 7, 2006 at a rent and on the terms and conditions mentioned in the above agreement.
5. By virtue of the above unregistered agreement, the tenancy under reference commenced and established with effect from August 1, 2006 at a rent of Rs. 20,000/- per month payable by the tenants by the 7th day of every succeeding month according to English Calendar month. The aforesaid unregistered agreement contained a provision for enhancement of rent at the rate of 15 per cent, on expiry of every 3 years from the date of commencement of the above tenancy. The above unregistered agreement further contained a default clause to the effect that in the event of any default on the part of the tenants in making payment of rent for 3 consecutive months or in the event of any breach of any of the terms and conditions contained therein to be performed and observed on the part of the tenants, the landlord should be entitled to serve a notice calling upon the tenants to make payment of rent and to remedy for breach of any of the other terms and conditions and failure on the part of the tenants to remedy the breach within 30 days, the landlord should be entitled to determine or terminate the tenancy.
6. Since, the respondent was no longer willing to continue with the above tenancy with the appellants, a notice dated October 30, 2008 was issued to the appellants for termination of the above tenancy as also to hand over the vacant possession of the suit premises within 15 days from the receipt of the same treating the above notice as a notice under the provisions of Section 106 of the Transfer of Property Act, 1882. According to the respondent, the above notice had been received by the appellants on October 31, 2008 but they did not vacate the suit premises. The respondent filed a suit for recovery of khas possession of the suit premises which gives rise to this appeal.
7. The appellants contested the suit by filing written statement alleging that the suit was not maintainable. According to them incorporation of a clause in the aforesaid unregistered agreement dated August 7, 2006 for enhancement of monthly rent at the rate of 15 per cent, after expiry of every 3 years purported that the tenancy under reference was not terminable before expiry of a period of 30 years. It was the case of the appellants that the appellants were allowed to open and run Macdonald s Family Restaurant from the suit premises by investing a sizeable amount of money to meet the claim of the employees of Blue Fox Restaurant, repairing and renovation of the suit property as also to enter into a long term franchise agreement for running Macdonald s Family Restaurant from the suit premises. It was also the case of the appellants that the respondent permitted their franchisor M/s. Connaught Plaza Pvt. Ltd. to invest a substantial sum of money for repairing and renovation of the suit premises after the incident of fire which took place in the month of August, 2007. The suit was decreed on contest in favour of the respondent.
8. It is submitted by Mr. Anindya Kr. Mitra, learned Senior Advocate appearing on behalf of the appellants, that the learned Court below was in error in holding that the tenancy was guided by the provisions of Transfer of Property Act, 1882 and not by the West Bengal Premises Tenancy Act, 1997.
9. Mr. Mitra submits that the unregistered agreement was marked as exhibit without objection and as a consequence thereof admissibility of evidence on the basis of the same could not be challenged. Drawing the attention of this Court towards the contentions of Clause (6) of the unregistered agreement dated August 7, 2006, it is submitted by him that the termination of the tenancy under reference was permissible in case of default of payment of rent of the suit premises for 3 consecutive months as also failure on the part of the tenant to remedy such breach within a period of 30 days.
10. According to him, as 15 days notice issued under the provisions of Section 106 of the Transfer of Property Act, 1882, the suit was not maintainable. It is also submitted by him that no reason for termination of the tenancy was assigned in the above notice. It is also submitted by him that consequent upon execution of the agreement under reference the parties to the aforesaid unregistered agreement agreed not to make the lease in respect of the suit premises terminable by 15 days notice in accordance with the provisions of Section 106 of the Transfer of Property Act, 1882. Drawing the attention of this Court towards the paragraph 5 of the written statement, filed before the learned Court below, it is further submitted that the necessary implication of the action of respondent to permit the appellants to open and run Macdonald s Family Restaurant as a franchisee from the suit premises was not to terminate the lease before 30 years.
11. Mr. Mitra relied upon the decisions of P.C. Purushothama Reddiar v. S. Perumal; reported in AIR 1972 Supreme Court 608, Jacob Philip v. State Bank of Travancore & Ors.; reported in AIR 1973 Kerala 51, K. Nasir Basha & Anr. v. Turukkan Chatram Charities; reported in AIR 1976 Madras 120, Shyamal Kumar Roy v. Sushil Kumar Agarwal; reported in (2006) 11 Supreme Court Cases 331 : (AIR 2007 SC 637), Secretary and Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity &. Ors.; reported in (2010) 3 Supreme Court Cases 732 : (AIR 2010 SC 1285).
12. On the other hand, it is submitted by Mr. Samit Talukdar, learned Advocate appearing on behalf of the respondent, that the appellants were the monthly tenant of the suit premises in accordance with the provisions of Section 106 of the Transfer of Property Act. It is also submitted by him that the unregistered agreement dated August 7, 2004 could only be considered for collateral purpose of proving the tenancy in between the parties. It is also submitted by him that the conditions prescribed in the Transfer of Property Act for issuing a notice under Section 106 and service of the same upon the tenant were fulfilled.
13. Mr. Talukdar relied upon the decisions of Ram Kumar Das v. Jagdish Chandra Deo, Dhabal Deb & Anr.; reported in AIR 1952 Supreme Court 23, Satish Chand Makhan & Ors. v. Govardhan Das Byas & Ors.; reported in (1984) 1 Supreme Court Cases 369 : (AIR 1984 SC 143), Anthony v. K.C. Ittoop & Sons & Ors.; reported in (2000) 6 Supreme Court Cases 394 : (AIR 2000 SC 3523), K.B. Saha & Sons Private Limited v. Development Consultant Limited; reported in (2008) 8 Supreme Court Cases 564 : (AIR 2008 SC (Supp) 850), Surya Kumar Manji & Ors. v. Trilochan Nath & Ors.; reported in AIR 1955 Calcutta 495, Kunju Kesavan v. M.M. Philip & Ors.; reported in AIR 1964 Supreme Court 164, Prasanta Ghosh & Anr. v. Pushkar Kumar Ash & Ors.; reported in 2006 (2) CHN 277.
14. We have heard the learned Counsel appearing for the respective parties at length and we have considered the facts and circumstances of this case carefully. Admittedly, the suit premises was lying and situated within the limit of Kolkata Municipal Corporation and the same was let out for non-residential purpose for a monthly rental of more than Rs. 10,000/-. Taking into consideration the aforesaid admitted fact, the learned Court below came to a conclusion that in view of the provisions of Section 2(f) of the West Bengal Premises Tenancy Act, 1997, the tenancy under reference in respect of the suit premises was exempted from the provisions of the West Bengal Premises Act and the same was governed under the general law, i.e., Transfer of Property Act, 1882. We do not find any error in the above finding of the learned Court below.
15. After careful consideration of the memorandum of agreement dated August 7, 2006, we find that the same was an unregistered agreement. According to the above agreement, it was commenced from August 1, 2006 creating a tenancy in favour of the appellants on payment of Rs. 20,000/- per month subject to enhancement at the rate of 15 per cent, on expiry of every three years from the date of commencement of the tenancy under reference. One of the main questions in this appeal is whether the learned Court below was in error in arriving at a conclusion that the aforesaid unregistered agreement could not be accepted in evidence.
16. It is the general proposition of law in view of the provisions of Section 49 of the Indian Registration Act that when a document is required to be registered under a provision of law, it cannot be accepted in evidence of any transaction affecting an immovable property in absence of registration of that document. It is also true that in accordance with the provisions of Section 107 of the Transfer of Property Act, 1882, a lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent can be made only by a registered instrument.
17. But the above observation does not exhaust the scope of determination of a question as regards admissibility of an instrument which has been improperly admitted in evidence. The decision of Javer Chand & Ors. v. Pukhraj Surana; reported in AIR 1961 SC 1655 is an authority for the proposition that once a document has been marked as an exhibit in a case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, it is not open either to the trial court itself or to a court of appeal or revision to go behind that order. The relevant portions of the above decision are quoted below:
4.....Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section 35 is in the nature of a penal provision and has far-reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the court. The court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. The record in this case discloses the fact that the hundis were marked as Exts.P-1 and P-2 and bore the endorsement admitted in evidence under the signature of the court. It is not, therefore, one of those cases where a document has been inadvertently admitted, without the court applying its mind to the question of its admissibility. Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses. Section 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial court itself or to a court of appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same court or a court of superior jurisdiction. [Emphasis supplied]
18. The above settled proposition of law was repeated and reiterated by the Hon ble Supreme Court in the matter of Shyamal Kumar Roy, (AIR 2007 SC 637) (supra). The relevant portions of the above decision are quoted below:
17. Objection as regards admissibility of a document, thus, specifically is required to be taken that it was not duly stamped. On such objection only the question is required to be determined judicially.
18. Reliance has been placed on Ram Rattan v. Bajrang Lal, (AIR 1978 SC 1393) which in our opinion has no application to the fact of the present case.
19. When there had been no determination as regards sufficiency of the stamp duty paid on an instrument and in the event the document is taken in evidence with an endorsement, that objected, allowed subject to objection , this Court in Ram Rattan held that the objection was not judicially determined and the document was merely tentatively marked and in such a situation Section 36 would not be attracted. Ram Rattan also, therefore, is an authority for the proposition that the party objecting to the admissibility of the document must raise an objection so as to enable the trial Judge to determine the issue upon application of his judicial mind at the appropriate stage.
20. If no objection had been made by the appellant herein in regard to the admissibility of the said document, he, at a later stage, cannot be permitted to turn round and contend that the said document is inadmissible in evidence.
21. The appellant having consented to the document being marked as an exhibit has lost his right to reopen the question. [Emphasis supplied]
19. Therefore, parties to a litigation, where a controversy with regard to admissibility is raised, have to be circumspect and the party challenging the admissibility has to be alert to see that the document is not admitted in evidence by the Court. No material is produced before us to show that objection had been raised by the respondent to show that step was taken to challenge the admissibility of the unregistered agreement under reference.
20. Admittedly, the above unregistered agreement had been marked as Exhibit-4 in this case and as also had been used by the parties in examination and cross-examination of their witnesses. Once the above Exhibit-4 had been admitted in evidence, as aforesaid, it was not open to the learned Court below to go behind that order. Such an order was not one of those orders which were liable to be reviewed or revised by the same Court or a Court of superior jurisdiction.
21. In view of the settled proposition of law, as discussed hereinabove, we are of the opinion that the learned Court below erred in law in refusing to take into consideration the unregistered agreement dated August 7, 2006 which had been properly proved in absence of raising question as to the admissibility of the above document at the time of tendering the same in evidence.
22. The learned Court below committed an error in passing the decree in favour of the respondent. The impugned judgment is, therefore, requires to be interfered with and the validity of the notice dated October 30, 2008 is required to be reconsidered by the learned Court below looking into the Exhibit-4 .
23. The question of admissibility of a document, which had been admitted in evidence, was not taken up for consideration in the decisions of Ram Kumar Das (AIR 1952 SC 23) (supra), Satish Chand Makhan, (AIR 1984 SC 143) (supra), Anthony (AIR 2000 SC 3523) (supra), K.B. Saha & Sons Private Limited, (AIR 2008 SC (Supp) 850) (supra), Surya Kumar Manji & Ors., (AIR 1955 Cal 495) (supra), Kunju Kesavan, (AIR 1964 SC 164) (supra) and Prasanta Ghosh & Anr. (supra). Therefore, the above decisions do not help the respondent.
24. We accordingly allow this appeal, set aside the impugned judgment and decree and the suit is remanded back to the learned Court below for reconsideration from the stage of examining the question of validity of notice dated October 30, 2008 on the basis of the documents admitted in evidence including Exhibit-4 .
25. Let the Lower Court Records be sent to the learned Court below expeditiously.
26. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
Ishan Chandra Das, J.:--
27. I agree.
Appeal allowed.
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