15 June 2021

After lapse of previous rent agreement if fresh rent agreement is not created, then the landlord can recover last payable rent but not the enhanced rent

The finding by both the learned Courts below on issue no.3 has been taken up for examination. In this regard, at the outset it must be seen that how far the Agreement for House Rent dated 29.02.2000 (Ext.3, also marked as Ext.D) can be read to determine the quantum of monthly rent for which the petitioner and proforma respondent no.2 had committed default, if there be any. In this regard, as per the provisions of Section 17(d) of the Registration Act, 1908 it is provided that leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent is required to be compulsorily registered. The consequences of non registration is prescribed in Section 49(c) of the said Act, which provides that no document required by section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered. However, as per the proviso appended thereto, such document may be received as evidence of any collateral transaction not required to be effected by registered instrument. Therefore, when both the Courts below were examining the issue of rent payable after 01.03.2003, there was no written agreement in existence commencing from 01.03.2003. However, the rent payable during the tenure of the agreement was the purpose of agreement, as such, for the purpose of the quantum of the
After lapse of previous rent agreement if fresh rent agreement is not created, then the landlord can recover last payable rent but not the enhanced rent
rent payable for the period commencing from 01.03.2003 onwards, the said rent agreement (Ext.3, also exhibited as Ext.D) cannot be read in evidence. After 28.02.2003, the petitioner and respondent no.2 were holding the status of statutory tenant. In view of the discussions above, the evidence to the effect that as per the terms of Ext.3/Ext.D, the rent last payable under the said agreement was Rs.2,640/- per month.
[Para No.22]

    It is the pleaded case of the respondent no.1 in the plaint that as per the tenancy agreement dated 29.02.2000, the monthly rent was fixed at Rs.2,640/- and that since 01.03.2003, the rent had been automatically enhanced by 20% i.e. Rs.3,168/-. As there was no agreement for paying enhanced rent, it was open to the respondent no.1 to approach the Court for determining the quantum of 'fair rent' under Section 4 read with Section 3 of the Assam Urban Areas Rent Control Act, 1972. The prayer made in the plaint for recovery of monthly rent at the rate of Rs.3,168/- w.e.f. 01.03.2003 was a mere claim, but without calling upon the Court for determination and/or fixation of 'fair rent'. Therefore, in the absence of any tenancy agreement 01.03.2003, the provisions of Section 49(d) of Registration Act, 1908 makes the clauses relating to purported enhancement of rent by 20% is not enforceable as the said clause cannot be read by the Court in evidence. Moreover, the agreement dated 29.02.2000 (Ext.D) had already lapsed by afflux of time and the present suit was not filed for enforcement of the said agreement. Therefore, the Court is inclined to hold that the rent due and payable by the petitioner and proforma respondent no.2 to the petitioner on and from 01.03.2003 for pre-suit, pendente lite and till evicted would be at the rate of Rs.2,640/- per month, unless otherwise determined by competent Court in accordance with law.[Para No.23]

Gauhati High Court

Ramawati Devi Singh
Bishwajit Choudhury

Decided on 14/06/2021

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