ORDER
K.S. Radhakrishnan, J.
1. Would the bar under Section 11(9) of Act 2 of 1965 affect an application filed under Section 11 of the Act if the parties are governed by an unregistered lease deed is the interesting question that has come up for consideration in these cases.
2. Tenants are the revision petitioners in these cases. Petitions for eviction preferred under Section 11(2)(b), 11(4)(ii) and 11(4)(v) were resisted by the tenants under Section 11(9) of the Act on the ground that where the tenancy is for a specific period agreed to between the landlord and the tenant, landlord is not entitled to apply before the Rent Control Court for an order of eviction before the expiry of that period.
3. C.R.P. No. 1628 of 1997 arises out of R.C.P. No. 2 of 1990, a petition filed by the landlord under Sections 11(2)(b) and 11(4)(ii) of the Act. Parties are governed by Ext. A2 rent agreement dated 5.9.1988. Room was let out on a monthly rent of Rs. 750/-. Rent Control Petition was filed on 3.2.1990 claiming arrears of rent under Section 11(2)(b) and the Rent Control Court found that tenant had committed default in payment of rent from 5.10.1988 onwards till 31.12.1990 at the rate of Rs. 750/- per month and ordered eviction under Section 11(2)(b). Rent Control Court also allowed the plea of the landlord that the tenant has used the building in such a manner as to destroy or reduce its value or utility, materially and permanently. Appellate Authority also confirmed the findings of the Rent Control Court.
4. C.R.P.No. 1764 of 1999 arises out of R.C.P.No. 35 of 1995 which is a petition filed by the landlord under Sections 11(2)(b) and 11(4)(v). Parties are governed by Ext.A1 rent dated 17.1.1994. Schedule room was rented out on a monthly rent of Rs. 400/-. Landlord claimed arrears for the period from January 1995 to July 1995. Rent Control Court noticed that there is no arrears of rent. Consequently claim under Section 11(2)(b) was rejected. Noticing that the tenant had ceased to occupy the building continuously for a period of six months without reasonable cause, the Rent Control Court ordered eviction. Appeal filed against that order was rejected.
5. C.R.P. No. 1985 of 1999 arises out of the order in LA. No 291 of 1998 in R.C.P. No. 30 of 1997. I.A.No. 291 of 1998 was filed for setting aside the ex parte order. Rent Control Court found no reason to set aside the order and dismissed the application. Appellate Authority confirmed the said order against which this revision was filed by the tenant.
6. Ext. A2 unregistered lease deed dated 5.9.1988 governs the parties in C.R.P.No. 1628 of 1997. Ext. A2 would indicate that the petition schedule building was let out for a period of 15 years for the purpose of carrying on the business of selling gold and silver ornaments. Rate of rent shown in the document is Rs. 750/- per month which had to be paid by the tenant on or before fifth of every month. Rent Control Petition was filed on 3.2.1990 before the expiry of fifteen years from the date of agreement. In CRP No. 1764 of 1999 parties are governed by Ext. A1 rent chit dated 17.1.1994. Rate of rent fixed was Rs. 400 per month and the period of lease is for five years. Rent Control Petition was filed on 24.7.1995. In CRP No. 1985 of 1999 also parties are the same in CRP No. 1764 of 1999 and are governed by the same rent chit dated 17.1.1994. In that case rent control petition was filed on 4.7.1997 within a period of five years.
7. The question that is posed for consideration as we have already mentioned, is whether tenant could use the unregistered lease deed as a defence under Section 11(9) of the Act to defeat a claim raised by the landlord within the period specified in the lease deed for eviction of the tenant on any of the grounds mentioned in Section 11 of the Act? The Kerala Buildings (Lease and Rent Control) Act, 1965 is an Act enacted to regulate the leasing of buildings and to control the rent of such buildings in the State of Kerala. The reason for the enactment is to regulate the leasing of the buildings, prevention of unreasonable eviction of tenants and also for control of rent. The Act is a self contained statute and the rights and liabilities of the landlord and tenant are to be governed by its provisions. Rights available to the tenant and landlord under the general law and the Transfer of Property Act are substantially curtailed by the provisions of the Rent Control Act. Though Rent Control Act is a piece of social legislation mainly to protect tenants from frivolous eviction, certain salutary provisions have also been made in the Act in order to do justice to the landlord. The legislation is neither pro-tenant nor-pro-landlord. Rent Control Act does not clearly disable the provisions contained in the Transfer of Property Act as far as rights of parties are concerned. At the same time, it makes provision for eviction on such specified grounds and it cannot be resisted on the basis of rights conferred under the Transfer of Property Act. When eviction is sought by the landlord under the provisions of the Rent Control Act and once the requirement contemplated under the Rent Control Act are satisfied, tenant cannot claim total prohibition of eviction on the basis of the provisions contained in the Transfer of Property Act or the provisions contained in the Contract Act.
8. Section 11 of the Act confers certain rights on the landlord to get the tenant evicted on specified grounds. But Section 11(9) gives an assurance to the tenant that he would not be evicted for a specified period if parties so agree so that he could modulate his future course of action accordingly. Grounds of bonafide need for own occupation or his dependent who is a member of his family or requirement of additional accommodation etc. are not available to be raised by the landlord during that specific period. But if the tenant fails to pay rent or without the consent of the landlord sublets the building or transfers his rights or uses the building in such a manner as to reduce its value or utility materially or permanently or ceased to occupy the building, landlord can seek an order of eviction even if a specific period is mentioned in the lease deed and Section 11(9) will not therefore be a bar. There are certain statutory prohibitions, which the tenant is bound to honour unless a contrary intention is spelt out from the agreement. On the guise of specific period mentioned in the agreement the tenant is not expected to sublease the premises unless otherwise agreed to or destroys the utility or value of the tenanted premises materially and permanently or commits default in payment of rent or violates the statutory obligations. Section 11(9) calls for a purposive interpretation so as to promote the purpose and object of the Act and not to circumvent the statutory obligations cast on the tenant by the Rent Control Act.
9. 'Landlord' defined in Section 2(3) of the Act includes any person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others is one of the essential terms is the landlord-tenant relationship. If rent is not paid by the tenant Section 11(2) comes to the rescue of the landlord. Section 11(3) also enables the landlord to apply for an order of eviction if the landlord bonafide needs the building for his own occupation or for the occupation by any member of his family dependent on him. Section 11(4)(i) prohibits sublease as well as transfer of tenant's rights in the event of which it enables the landlord to apply for eviction of the tenant. Section 11(4)(ii) also would caution the tenant that he shall not use the building in such a manner as to destroy or reduce its value or utility, materially and permanently. Section 11(4)(iii) states that the Rent Control Court can order eviction if the tenant has in his possession a building or subsequently acquires possession of or puts up a building reasonably sufficient for his requirement in the same city, town or village. Section 11(4)(iv) enables the landlord to apply for eviction of the building if the building is in such a condition that it needs reconstruction and if the landlord requires bona fide to reconstruct the same and if he satisfies the Court that he has the plan and licence, if any required and the ability to rebuild and if the proposal is not made as a pretext for eviction. Section 11(4)(v) enables the landlord to apply if the tenant ceases to occupy the building continuously for six months without reasonable cause. Section 11(5) enables the landlord who wants to renovate the building to apply for an order directing the tenant to permit him to enter and carry out the renovation within a time to be fixed by the Court. Section 11(8) enables the landlord to apply for eviction if he requires additional accommodation for his personal use. Sections 11(2) and 11(3) gives various rights and obligations to the tenant as well as to the landlord, so also Section 11(8). Contention was raised that when the landlord and tenant agree themselves that the tenancy is for a specified and stipulated period as per the agreement, registered or otherwise, parties are bound by the said agreement and irrespective of the grounds available to the landlord under Sections 11(2), 11(4)(ii) and 11(4)(iv) landlord is not entitled to apply for eviction before the expiry of the said period as per Section 11(9) of the Act.
10. The lease of immovable property is governed by Chapter V of the Transfer of Property Act. The term 'lease' defined in Section 105 of the Transfer of Property Act reads as follows:
'A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.'
Contract to the contrary mentioned in Section 106 is from the date of notice of termination of the lease and not with regard to the period of lease. Lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from, year to year, terminable, on the part of either lessor or lessee, by six months' notice and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days notice unless there is a contract to the contrary. Section 106 deals with duration of certain leases in the absence of written contract. Section 107 of the Transfer of Property Act states that 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 registered instrument. Rights and liabilities of the lessor and lessees are dealt with in Section 108 of the Act. Section 108(A) deals with rights and liabilities of the lessor. Section 108(B) deals with rights and liabilities of the lessee. Section 107 stipulates that 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 document.
11. The effect of non-registration of document required to be registered is dealt with in Section 49 of the Registration Act, 1908, which says that 'no document required by Section 17 or by any provision of the Transfer of Property Act, 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. Proviso states that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 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 or as evidence of any collateral transaction not required to be effected by registered instrument. Inter relation between Section 49 of the Registration Act read with Section 107 of the Transfer of Property Act and Section 91 of the Evidence Act has come up for consideration before the Apex Court and various High Courts. Counsel on either side took us through the various decisions on the point.
12. Apex Court in Anthony v. K.C. Ittoop & Sons, (2000) 6 SCC 394, examined the relationship between landlord and tenant on the basis of the unregistered instrument. That was a case where lease deed was intended to be operative for a period of five years. The deed was unregistered document. Apex Court held that such lease could not create a lease on the basis of the inhibition contained in Section 107 of the Transfer of Property Act, 1882 and Sections 17(1) and 49 of the Registration Act, 1908. The Court held that the resultant position is insurmountable that so far as the instrument of lease is concerned there is no scope for holding that the appellant is a lessee by virtue of the said instrument. The Court is disabled from using the instrument as evidence and hence it goes out of consideration, hook, line and sinker. In Satish Chand Makhan and Ors. v. Govardhan Das Byas and Ors., 1984 (1) SCC 369, the Apex Court examined the scope of unregistered draft lease agreement. While dealing with the provisions of Section 17(1)(d) and 49 read with Section 106 of the Transfer of Property Act, held as follows:
'The unregistered draft lease agreement Ext.B2 was clearly inadmissible in evidence under Section 4 of the Registration Act, except for the collateral purpose of proving the nature and character of possession of the defendants. The document Ext.B2 was admissible under the proviso to Section 49 only for a collateral purpose of showing the nature and character of possession of the defendants. The proviso to Section 49 was however not applicable in the present case inasmuch as the terms of a lease are not a 'collateral purpose' within its meaning. It follows that the unregistered draft lease agreement Ext.B2 was inadmissible in evidence to prove the transaction of lease. It was also ineffectual to create a valid lease for a renewed term of nine years for want of registration as required under Section 17(1)(d) of the Registration Act.'
The Apex Court in Samir Mukherjee v. Davinder K. Bajaj and Ors., (2001) 5 SCC 259, examined the scope of Sections 106 and 107 of the Transfer of Property Act and held as follows:
'Section 106 lays down a rule of construction which is to apply when the parties have not specifically agreed upon as to whether the lease is yearly or monthly. On a plain reading of this section it is clear that the Legislature has classified leases into two categories according to their proposes and this section would be attracted to construe the duration of a valid lease in the absence of a contract or local law or usage to the contrary. Where the parties by a contract have indicated the duration of a lease, this section would not apply. What this section does is to prescribe the duration of the period of different kinds of leases by legal fiction - Leases for agricultural or manufacturing purposes shall be deemed to be lease from year to year and all other leases shall be deemed to be from month to month. Existence of a valid lease is a prerequisite to invoke the rule of construction embodied in Section 106 of the Transfer of Property Act.
Section 107 prescribes the procedure for execution of a lease between the parties. Under the first para of this section 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 and remaining classes of leases are governed by the second para, that is to say all other leases of immovable property can be made either by a registered instrument or by an oral agreement accompanied by delivery of possession'.
The above mentioned statutory provisions and the decisions would conclusively show in the absence of a registered instrument no valid lease from year to year or a term exceeding one year or reserving yearly rent can be created.
13. In the instant case, admittedly lease deeds are unregistered documents. Therefore, tenancy is to be treated as tenancy from month to month. Contention was raised even if lease agreements are unregistered, period mentioned in the unregistered agreement is the essential condition of the lease and consequently parties are bound by the said terms and conditions irrespective of the fact whether a document is registered or not. Counsel also submitted that unregistered document can be treated as evidence under the proviso to Section 49. Section 49 is extracted below for easy reference.
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 as 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, 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, or as evidence of any collateral transaction not required to be effected by registered instrument.
We may now examine even if document is an unregistered one, whether the period mentioned therein would be binding on the parties and consequently petition filed before the period mentioned in the document would be hit by Section 11(9) of the Act. In the absence of registration, lease of immovable property from year to year or for any term exceeding one year shall be deemed to be from month to month. Therefore, we may proceed as if rent agreements executed between the parties in these cases are leases from month to month. All the same, we may examine as to whether the period specified in the unregistered lease deeds could be treated as defence within the meaning of the proviso to Section 49 and consequently fall within the rigor of Section 11(9) of the Act. Section 17 of the Registration Act deals with documents of which registration is compulsory. Section 17(d) deals with leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent which requires compulsory registration. It is true that Section 17 does not say that unregistered document shall not be received in evidence. Section 49 bars reception in evidence of document or proceeding which is required to be registered under Section 17 of the Registration Act but not registered. The Apex Court in Champalal v. Samrathbai (AIR 1960 SC 629) held that filing of an unregistered award under Section 49 is not prohibited, what is prohibited is that it cannot be taken into evidence so as to affect immovable property falling under Section 17. In Dinaji and Ors. v. Daddi and Ors., AIR 1990 SC 1153, the Apex Curt held that non registration of a document which is required to be registered under Section 17(1)(b) of the Registration Act will not avail to create, declare, assign, limit or extinguish any right, title or interest in or to the immovable property comprised in the document. Section 49 stipulates that no document required to be registered under Section 17 of the Transfer of Property Act shall be received as evidence of any transaction affecting such property or conferring such power unless it has been registered. The Apex Court in Satish Chand Mukhan and Ors. v. Goverdhandas Byas and Ors., AIR 1984 SC 143, 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 Bajaj Auto Ltd. v. Bahari Lal Kolhi, AIR 1989 SC 1806, the Apex Court held that where a lease is entitled to create a sub-lease or not is undoubtedly a question of a term of the transaction of lease, and if it is incorporated in the document it cannot be disassociated from the lease and considered separately in isolation. If a document is inadmissible for nonregistration all its terms are inadmissible including the one dealing with the landlord's permission to his tenant to sublet. The Calcutta High Court in Pieco Electronics & Electricals Ltd. v. Smt. Tribeni Deve (AIR 1990 Cal. 135), held that ejectment cannot be sought on the basis of a duration clause in an unregistered lease. Unregistered lease 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. The Court held it could never have been the intention of the legislature that under the first part of the section we should discard an unregistered document for want of registration and at the same time under the camouflage of the proviso we should be permitted to look into and rely upon all the terms of the inoperative document which do form the integral parts of the principal transaction.
14. The various provisions contained in Sections 11(2) to 11(8) of the Rent Control Act are substantial provisions. Compulsorily registerable document, though unregistered and inadmissible as evidence of a transaction affecting immovable property, may be admitted as evidence of collateral facts, or for any collateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. Reference be made to the decision of the Bombay High Court in Bai Gulabbai v. Shri Datgarji, 1907 (9) Bom.L.R. 393, and Panchapagesa v. Kalyanasundaram, AIR 1957 Madras 472). An unregistered deed of lease can be used for a collateral purpose to show the nature of possession. In Ishwar Dutt v. Sunder Singh (AIR 1961 J & K 45) it was held that the term of lease is not a collateral purpose. In Antonia Perreira v. Upendra Venkatesh Juarkar, AIR 1978 Goa 19, it was held that the duration of the lease for a fixed period exceeding one year is not a collateral purpose. In A.N. Parkas v. N.H. Nagvi, AIR 1989 Delhi 277, it was held that an unregistered document of lease can be looked into to know the purpose of letting whether residential or commercial, because the said term can be deemed to be collateral matter. In Jagajit Industries Ltd. v. Rajiv Gupta, AIR 1981 Delhi 359) it was held that term in a lease regarding notice of eviction in a term which affects immovable property and therefore it cannot be said to be a collateral transaction. In Zarif Ahmad and Anr. v. Satish Kumar and Anr., AIR 1983 All. 164) it has been held that an unregistered lease cannot be admitted in evidence for the purpose of ascertaining the date on which the tenancy began and what the rent reserved was. The Apex Court in Rai Chand Jain v. Miss Chandra Kanta Khosla, AIR 1991 SC 744, held that an unregistered lease can be looked into for collateral purposes like for ascertaining whether the purpose of the lease was residential or not.
15. The above mentioned judicial pronouncements and the principles laid down therein would clearly show that an unregistered document cannot be used for the purpose of establishing that that document created or declared or assigned or limited or extinguished a right to immovable property. Period of lease is integral part of the agreement and not a collateral one. Unregistered lease deeds 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. They create only month to month tenancyand only if the lease is registered under the Registration Act, it would create transferof right to enjoy the immovable property for a specific term exceeding one year. Wetherefore hold that unregistered lease deeds by which rights of parties in these casesare governed would not stand in the way of the landlord from filing application underSections 11(2)(b), 11(4)(ii) or 111(4)(v) of Act 2 of 1965 and the application would hot be hit by Section 11(9) of the Act.
16. Counsel appearing for the tenant contended that the landlord is not entitled to get eviction under Section 11(4)(ii) of the Act. In the rent chit it is specifically stated that the building shall not be subjected to material alteration. Contention of the tenant was that he had removed window situated on the northern side wall and closed down that portion using bricks. Similarly a window was also removed from the western wall and another door from the southern wall and closed down those portions using bricks. Tenant also lowered the level of the floor of the building and cut and removed six wooden pieces and has installed concrete pillars at a distance of one feet from the wall of the building. Landlord submitted that the tenant has used the building in such a manner as to destroy and reduce its value and utility materially and permanently. In order to establish the case landlord took out a commission. Ext. C1 is the commission report dated 23.11.1992. Tenant on the other hand contended that the modification he has made has not affected the utility or value of the building materially or permanently. Counsel also placed reliance on several decisions. Reference was made to the decision of the Apex Court in Manmohan Das Shah v. Bishum Das, AIR 1967 SC 643, Vipin Kumar v. Roshanlal Anand and Ors., (1993) 2 SCC 614, Seethalakshmi Ammal v. Nabeesath Beevi, 2003 (1) KLT 391, Waryam Singh v. Baldev Singh, (2003) 1 SCC 59, Aboobacker v. Nanu, 2001 (3) KLT 815, G. Arunachalam v. Thopndarperlenambi, AIR 1992 SC 977, and various other decisions. It is well settled to examine the question as to whether tenant used the building in such a manner as to reduce its value and utility permanently or materially, stand point of the landlord is important. The question as to whether the tenant has altered the tenanted premises reducing its value and utility materially or permanently has to be decided in the facts and circumstances of each case. Formation of the opinion by the landlord is subjective but the existence of circumstances relevant to the inference is a sine qua non for the formation of such opinion by the landlord.
17. As far as this case is concerned, Ext.C1 commission report would positively show that window was removed from the western wall and a window from the northern wall. Commission report would indicate that the commissioner could not see any door or window on the northern and western walls of the building. Tenant examined as CPW1 had admitted that at the time when he took the petition schedule building on rent there was a door on the western wall and a window on the northern wall and that he had removed both of them. He also admitted that he had removed two windows from the northern wall, one door and a window from the western wall and another door from the southern wall. Commission report would indicate that the scheduled room is the north-eastern room of a larger old building and that the floor of the scheduled room lies at a level lower by one feet from the floor level of the adjacent southern room. The floor of the southern room was found furnished with old tiles and the floor was seen cemented. Commissioner has also noted that in the other adjacent room there are only folding wooden frames whereas for the scheduled room alone concrete pillars and beam have been found installed to which rolling shutters have been fitted. It is also stated that for the purpose of installing the rolling shutter and above the shutter the eastern end of the rafters of the roof have been found cut and removed to a length of 2 ft. The above mentioned facts would show that tenant has used the building in such a manner as to reduce its utility and value materially and permanently. Both the Rent Control Court and the Appellate Authority found that ground against the tenant. We find no reason to take a different view in our revisional jurisdiction.
18. Tenant in CRP No. 1764 of 1999 has also attacked the order of eviction under Section 11(4)(v). It is trite law that it is the burden of the landlord to show that tenant has ceased to occupy the premises continuously for a period of six months without reasonable cause. In order to establish the case, it is the specific case of the landlord that the schedule room was never occupied by the first respondent after it is entrusted to him. Though for sometime tenant has been conducting vegetable shop thereafter the shop room was kept closed. After 1994 the shop room was always kept locked and unoccupied. Third petitioner gave evidence to the effect that first respondent has not used the building after it was taken on rent from the original landlord's father in November 1994. First respondent used to open the room and clean it. Thereafter the room was always remaining locked. First respondent was working at Bombay since January 1995 onwards. Exts. A3 and A4 are the notices issued to the first respondent which were returned undelivered. In order to show that the room was kept closed PW2 was examined. PW1 has also given evidence to that effect. In Ext.C1 commission report it has been stated that RW6 has stated that at the time of inspection on 24.7.1875 schedule room was seen closed and locked with rust and cobwebs on the front shutters. There were posters affixed on the front shutters. First respondent has stated that for doing the business in soda, cigarette, beedi, pan etc. no licence was obtained by him. Fifth respondent who inspected the schedule room on 25.7.1995 could not find any business in cool drinks as claimed by RW3. The fact that there was no shelf or other device to keep the vegetables in the schedule room would indicate that no such business was carried on there. All these factors were taken into consideration by the Rent Control Court and the Appellate Authority and came to the conclusion that tenant has ceased to occupy the premises. We find no reason to interfere with the orders of the courts below in our revisional jurisdiction. The revision petition stands dismissed.
19. C.R.P.No. 1985 of 1999 also has to be dismissed. Order of eviction was passed in this case since tenant failed to pay the rent. Though application to set aside the order was filed the same was dismissed which was later confirmed by the Appellate Authority. Since we have already found that landlord is entitled to get eviction under Section 11(4)(v) this revision is also liable to be dismissed. We do so. The tenants in all these cases are given three month's time from today for vacating the premises on condition that each of them should file an undertaking before the Rent Control Court within one month from today that they would vacate the premises within the aforesaid period and would pay arrears of rent, if any and future rent.