Pattem Gangi Reddy and ors. Vs. Pattem Subba Reddy - Court Judgment

Excerpt:
- all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - a-1 and a-2 recite that the vendors are the owners of the property and the actual and physical possession of the same has been handed over together with a well, trees etc standing thereon and that from the said date onwards, neither themselves nor any person claiming through them has got any concern and that the vendees shall be entitled to enjoy the same without any disturbance or interruption by the vendors or any person claiming through them and if the vendees sustain any loss, the vendors will indemnify the same.orderb. subhashan reddy, j.1. this revision petition is directed against the order passed by the court below in admitting two documents and marking them as exs.a-1 and a-2. objection was raised when the same were sought to be marked as exhibits. the objection was that the documents are not agreements to sell as projected by the plaintiff, but they are outright sale deeds and as they are neither stamped nor registered in accordance with law, they are inadmissible in evidence. repelling the contentions of the defendants, who are the revision petitioners, the court below has held that the documents filed are agreements to sell as they are titled as 'kararunamas'. no doubt, 'kararunamas' (agreements) are admissible in evidence as they are not compulsorily registrable. of course again, there is a distinction as to whether the agreement is simpliciter without delivery of possession or with delivery of possession as the same has got significance for the documents executed on or after 16-8-1986. but these being documents of 30-7-1982, there is no difference if the agreements are simpliciter or coupled with delivery of possession. the question for consideration is as to whether these documents which are marked by the court below as exs.a-1 and a-2 in spite of the objection raised by the party in possession are really agreements to sell or sale deeds. one should not be led away by the title of the document. title may be agreement, but recitals connote a real sale deed. one may be termed as sale deed, but in effect, it may be a mortgage deed. as such, the title of the document is not determinative of the true nature of the document. the recitals of the document had to be taken into consideration for construing the nature of a document. these two documents exs.a-1 and a-2 recite that the vendors are the owners of the property and the actual and physical possession of the same has been handed over together with a well, trees etc standing thereon and that from the said date onwards, neither themselves nor any person claiming through them has got any concern and that the vendees shall be entitled to enjoy the same without any disturbance or interruption by the vendors or any person claiming through them and if the vendees sustain any loss, the vendors will indemnify the same. it is also stated that the vendees are entitled to get their names mutated as owners. nothing further to be done is stated in the alleged agreements. these documents are out-and-out sale deeds and not agreements to sell.2. in the circumstances, the order of the court below is set aside and exs.a-1 and a-2 shall be taken out of the record of the suit and they shall not be taken cognizance of, for considering the evidence on behalf of the plaintiff. the revision petition is allowed. no costs.

Judgment:
ORDER

B. Subhashan Reddy, J.

1. This revision petition is directed against the order passed by the Court below in admitting two documents and marking them as Exs.A-1 and A-2. Objection was raised when the same were sought to be marked as exhibits. The objection was that the documents are not agreements to sell as projected by the plaintiff, but they are outright sale deeds and as they are neither stamped nor registered in accordance with law, they are inadmissible in evidence. Repelling the contentions of the defendants, who are the revision petitioners, the Court below has held that the documents filed are agreements to sell as they are titled as 'Kararunamas'. No doubt, 'Kararunamas' (agreements) are admissible in evidence as they are not compulsorily registrable. Of course again, there is a distinction as to whether the agreement is simpliciter without delivery of possession or with delivery of possession as the same has got significance for the documents executed on or after 16-8-1986. But these being documents of 30-7-1982, there is no difference if the agreements are simpliciter or coupled with delivery of possession. The question for consideration is as to whether these documents which are marked by the Court below as Exs.A-1 and A-2 in spite of the objection raised by the party in possession are really agreements to sell or sale deeds. One should not be led away by the title of the document. Title may be agreement, but recitals connote a real sale deed. One may be termed as sale deed, but in effect, it may be a mortgage deed. As such, the title of the document is not determinative of the true nature of the document. The recitals of the document had to be taken into consideration for construing the nature of a document. These two documents Exs.A-1 and A-2 recite that the vendors are the owners of the property and the actual and physical possession of the same has been handed over together with a well, trees etc standing thereon and that from the said date onwards, neither themselves nor any person claiming through them has got any concern and that the vendees shall be entitled to enjoy the same without any disturbance or interruption by the vendors or any person claiming through them and if the vendees sustain any loss, the vendors will indemnify the same. It is also stated that the vendees are entitled to get their names mutated as owners. Nothing further to be done is stated in the alleged agreements. These documents are out-and-out sale deeds and not agreements to sell.

2. In the circumstances, the order of the Court below is set aside and Exs.A-1 and A-2 shall be taken out of the record of the suit and they shall not be taken cognizance of, for considering the evidence on behalf of the plaintiff. The revision petition is allowed. No costs.