The admissibility of unregistered tenancy/lease deed as the basis of the original suit and its impact on the judgment of the first appellate court.

Pramod Kumar Srivastava, J. –

Heard counsel for the parties on point of admission of second appeal and perused the record.

2. Admittedly, the plaintiff (present respondent) was tenant of shop at disputed place. It is also admitted fact that said shop was in dilapidated condition, therefore, parties had executed a deed dated 29.4.2001 wherein it was agreed between them that plaintiff will handover possession of shop to defendant-landlord (present respondent) and also Rs. 30,000/- from which defendant will re-construct the shop and hand it over to plaintiff after construction. It was also agreed between them that if any further amount will be needed for reconstruction of the shop, the same will be paid by plaintiff to defendants. It is also admitted that after construction of major portion of the disputed shop only shutter was not fixed by defendant-landlord for long period and notice was given by defendant-plaintiff terminating his rights because of non payment of additional demand of money for completing construction of the shop. Then plaintiff filed suit for recovery of possession of that shop.

3. Trial court had dismissed the original suit by its judgment dated 13.8.2013. Against the said judgment, Civil Appeal No. 32 of 2013 was preferred which was allowed by judgment dated 28.1.2016 of Additional District Judge/Special Judge (PC) Act, Court No. 5, Gorakhpur with finding that notice sent by defendant landlord to plaintiff regarding termination of tenancy was in fact sent after completion of construction of the shop in question. Therefore, it was erroneous and incorrect notice, and the plaintiff is entitled to recover possession of the shop in question. Accordingly, first appellate court allowed the appeal and decreed the suit for relief sought in plant.

4. Against the judgment of first appellate court, present second appeal has been preferred.

5. It is pertinent to mention that in original suit, defendant appellant had taken factual ground for denying and opposing the plaint case. Non concurrent judgment of two courts below are based on finding of facts, but in second appeal only point raised by counsel for appellant was that the basis of claim of the original suit was unregistered agreement/lease deed dated 29.4.2001 which is in nature of permanent lease, but since law requires mandatory registration of said deed for being admissible in evidence, therefore, basis of suit in original suit is unregistered deed was inadmissible and judgment of lower appellate court based on such inadmissible evidence is apparently erroneous and perverse.

6. Counsel for respondent contended that such grounds, as being argued in this matter, was not taken by defendant-appellant in written statement or in memo of first appeal. He contended that in Rule 2 Order 41 such new grounds cannot be directly taken in appeal, therefore, on factual grounds, this appeal cannot be admitted and is liable to be dismissed.

Order 41, Rule 2 CPC reads as under:

"The appellant shall not, except by leave of the court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the court under this rule:

Provided that the court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground."

7. It is admitted legal position that without permission of the court appellant cannot urge, argue or be heard in support of any ground of objection or defence unless such grounds are not set-forth in memo of appeal. It is also admitted that in memo of first appeal such grounds of non registration of lease deed in question was not taken.

8. But this point raised before the court in second appeal directly is not such which could be ignored or rejected outright. Section 17 (1) (d) of the Re