Anil Jaiswal vs Smt. Khalida Fazli
2021 Latest Caselaw 5993 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved
 
Court No. - 21
 
Case :- CIVIL REVISION No. - 101 of 2012
 
Revisionist :- Anil Jaiswal
 
Opposite Party :- Smt. Khalida Fazli
 
Counsel for Revisionist :- N.N.Jaiswal,Deepak Seth,Dipak Seth,Prashant Jaiswal,Ratnesh Chandra,Ravindra Pratap Singh
 
Counsel for Opposite Party :- S.W.Zaman,Awadhesh Kumar,Sanjay Kumar Srivastava
 
Hon'ble Jaspreet Singh,J.

********

The instant revision has been preferred under Section 25 of the Provincial Small Causes Court Act, 1887 against the judgment and order dated 03.09.2012 passed by the Additional District Judge, Court No. 1, Barabanki in SCC Suit No. 3 of 2007 by means of which the SCC Suit No. 3 of 2007 seeking arrears of rent and ejectment preferred by the plaintiff-respondents has been decreed and the defendant-revisionist has been directed to handover the possession of the property in question within three months to the plaintiff/landlord.

The revisionist-tenant has assailed the judgment dated 03.09.2012 primarily on two grounds.

(i) It has been urged by Sri Ratnesh Chandra, learned counsel for the revisionist that the lease which was granted was of a permanent nature and it was not open for the landlord/respondent to terminate the said tenancy. The lease being permanent was not capable of termination and this aspect of the matter has not been considered in the correct perspective and has been decided against the weight of the material on record.

(ii) The other submission of Sri Chandra is that the landlord had leased out an open piece of land. That being so in view of Section 15 of the Act of 1887 read with Article 4 as appended to the Second Schedule of the Provincial Small Causes Court Act, the suit was not maintainable before the Judge, Small Causes and the decree passed by the Court being wholly without jurisdiction is liable to be set aside.

Per contra, Sri Sanjay Kumar, learned counsel for the landlord/respondent submits that the lease was though of an open piece of land but the covenants of the lease clearly provided that the tenant could only raise temporary constructions and upon termination of the lease or upon expiry of its term the tenant would have 3 month's time to remove the same, in case if he fails to do so, the said constructions would vest with the landlord and in such a case where the landlord seeks eviction from the land and building, hence, such a suit would be cognizable by the Judge, Small Causes.

It is further urged that the lease which was executed on 13.04.2000 comprised of both land and temporary construction and thus when the lease expired, even at the time of issue of notice and as also at the time of filing of the suit the eviction was sought from both land and building, hence, the suit was filed before Judge Small Cause and this has been adequately considered by the court below.

It has also been urged that the lease was not permanent and the submission to the contrary is misconceived, inasmuch as, the lease deed clearly indicated the term to be 5 years and upon the expiry of the aforesaid term, the tenant was required to vacate. There is no covenant nor there is any material to indicate either by intention or by any deed that the parties ever contemplated creating a perpetual lease. This aspect of the matter has also been considered by the Trial Court and has been negatived, consequently, only to harass the landlord, the instant revision has been preferred which deserves to be dismissed.

The learned counsel for the respondents has relied upon a decision of this Court in the case of (i) M/s Kedarnath Baijnath and Others Vs. Sri Ram Chandra Ji, Sri Jankiji, Sri Lakshman Ji, Virajman Mandir and Others reported 1991 ARC page 420 (ii) C.Albert Morris Vs. K. Chandrasekaran and Others reported in 2006 (1) SCC 228, (iii) Santosh Kumari Anand Vs. U.P. Power Corporation Vidyut Transmission Khand Thru. Exe. Engg. reported in 2012 (2) ARC 420, (iv) Smt. Mehroon Nisha Vs. Allah Tala Waqf No. 232 Masjid Akhoon Zada Shahib, Bareilly reported in 2009, ACJ, 183 and (v) Govardhan Goyal and Others Vs. Rishi Raj Singhal reported in 2013 (9) ADJ 138..

In order to appreciate the rival contentions, certain facts giving rise to the instant revision are being noticed first:-

That the landlord-respondent instituted a suit bearing SCC Suit No. 3 of 2007 before the Court of Civil Judge, Senior Division, Court No. 20, District Barabanki acting as Judge, Small Causes. In the plaint, it was specifically pleaded that the land bearing No. 805M, 645M, 646M situated in Gram Paisar, Pargana and Tehsil Nawabganj, District Barabanki was leased out to the father of the revisionist namely Bharion Prasad. The boundaries of the leased land was also mentioned in paragraph 1.

It was specifically pleaded that a lease deed was executed by the landlord in favour of Sri Bharion Prasad and Sri Anil Jaiswal on 13.04.2000. The said lease was for a period of 5 years. The lease provided that the lease would commence from the year 1997 and for the first 5 years, the rate of rent would be Rs. 4,000/-, in case if after the first 5 years, the lease is renewed then the rate of rent would be Rs. 5,000/- for the next 5 years. It was further pleaded that upon the expiry of the first five years, with consent, the lease was extended on the existing terms except that the rate of rent stood enhanced to Rs. 5,000/-. Since Bharion Prasad, the father of the revisionist expired, hence, the revisionist alone succeeded to the lease hold rights. The said lease came an end on 31.12.2006. since the tenant had stopped paying the rent, hence, a notice determining the tenancy was issued on 30.11.2006 which was served on the revisionist and as the tenant did not comply or vacate the premises, hence, the suit was instituted.

The tenant-revisionist filed his written statement wherein he admitted the plaintiff-respondent to be the landlord. He also admitted the execution of the lease deed dated 13.04.2000. However, took the defence that the lease was of a permanent nature and the plaintiff-respondent did not have the right to evict the tenant-revisionist. In the additional plea, it was stated that the tenant had raised permanent constructions which was in the knowledge and with consent of the landlord. The defendant had spent more than Rs. 75 lakhs on the said constructions and the same continued since long.

It was also pleaded that initially the father of the respondent namely Chaudhary Mohd. Azimuddin Asharaf had executed a lease in favour of the father of the revisionist namely Bharion Prasad on 01.09.1967. In pursuance thereof, the father of the revisionist had raised constructions and erected sheds for the purposes of opening a Service Station and a workshop. Initially the rent was Rs. 160/- per month for the period of 10 years.

After the said lease expired in the month of September, 1977, Chaudhary Mohd. Azimuddin Asharaf instituted SCC Suit No. 22 of 1977 wherein a compromise was arrived at and in terms of the said compromise decree, the lease was extended till 01.09.1987 with an enhanced rate of Rs. 300/- per month. It was also pleaded that the father of the revisionist had not only established a service station but had also taken an agency for tractors and also raised 10 shops with slab and other permanent constructions and as the lease was renewed from time to time but on an enhanced rate of rent which was continued to be paid by the revisionist.

It was also pleaded that after the lease expired in the year 1987, the same was further extended for a period of 5 years on enhanced rate of rent of Rs. 1,000/- per month. After the death of Chaudhary Mohd. Azimuddin Asharaf, a fresh lease was executed on 13.04.2000 which was for a period of 5 years w.e.f. 1997. The rate of rent was again enhanced to Rs. 5,000/- for the first 5 years and Rs. 10,000/- for the next term and that the lease would continue till the time the constructions remained. These pleadings related to the plea regarding the lease being of permanent nature.

Another defence taken by the revisionist in paragraph 29 of the written statement was that the Court did not have the jurisdiction to try the suit.

The parties led the evidence and the SCC Court after considering the material evidence as well as the submissions of the learned counsel for the parties while writing its judgment framed 5 points for determination to effectively answer the controversy.

The SCC Court first dealt with the point of jurisdiction and found that in terms of Clause 11 of the lease deed which provided that in case if the tenant did not remove the said constructions within three months, the same would vest with the landlord and as the said condition was breached and the eviction was from the building, hence, the suit was cognizable by the Judge, Small Causes. The court below also relied upon a decision of this Court in the case of M/s Kedar Nath Baijnath (Supra).

While considering the plea of permanent lease, the SCC Court found that the lease was for a fixed term with no option of renewal or extension, hence, it decided the same against the tenant. It further found that since the relationship of the landlord and tenant was admitted and also the rate of rent as well as the fact that the term of the lease stood expired and the notice was duly served, hence, the suit was decreed by means of judgment and decree dated 03.09.2012.

It is in the aforesaid backdrop that the said judgment has been assailed on the twin issues as raised by the learned counsel for the revisionist.

The Court has heard the learned counsel for the parties and also perused the record.

At the outset it will be apposite to notice that this Court is exercising revisional powers under Section 25 of the Provincial Small Cause Court Act.

The power under Section 25 of the Provincial Small Cause Court Act though is wider than Section 115 C.P.C. but the very nature of the revisional power is that it is truncated. The Apex Court in the case of Trilok Singh Chauhan Vs. Ram Lal and Others reported in 2018 (2) SCC 566 had the occasion to consider the scope of the revisional powers under Section 25 of the Provincial Small Cause Court Act and by relying upon an earlier decision of the Apex Court in the case of Hari Shanker Vs. Rao Girdhari Lal Chaudhary reported in AIR 1963 SC 698 and a subsequent decision of Mundrilal Vs. Sushila Rani reported in 2007 (8) SCC 609, in paragraphs 15 and 16 has held as under:-

15. The scope of Section 25 of the 1887 Act, came for consideration before this Court on several occasions. In Hari Shankar v. Rao Girdhari Lal Chowdhury [Hari Shankar v. Rao Girdhari Lal Chowdhury, AIR 1963 SC 698] , in paras 9 and 10, this Court laid down the following: (AIR p. 701)

"9. The section we are dealing with, is almost the same as Section 25 of the Provincial Small Cause Courts Act. That section has been considered by the High Courts in numerous cases and diverse interpretations have been given. The powers that it is said to confer would make a broad spectrum commencing, at one end, with the view that only substantial errors of law can be corrected under it, and ending, at the other, with a power of interference a little better than what an appeal gives. It is useless to discuss those cases in some of which the observations were probably made under compulsion of certain unusual facts. It is sufficient to say that we consider that the most accurate exposition of the meaning of such sections is that of Beaumont, C.J. (as he then was) in Bell & Co. Ltd. v. Waman Hemraj [Bell & Co. Ltd. v. Waman Hemraj, 1937 SCC OnLine Bom 99 : (1938) 40 Bom LR 125 : AIR 1938 Bom 223] , where the learned Chief Justice, dealing with Section 25 of the Provincial Small Cause Courts Act, observed: (SCC OnLine Bom paras 3-4)

''3. ... The object of Section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law.

4. The section does not enumerate the cases in which the Court may interfere in revision, as does, Section 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at.'

This observation has our full concurrence.

10. What the learned Chief Justice has said applies to Section 35 of the Act, with which we are concerned. Judged from this point of view, the learned Single Judge was not justified in interfering with a plain finding of fact and more so, because he himself proceeded on a wrong assumption."

16. Another judgment which needs to be noted is judgment of this Court in Mundri Lal v. Sushila Rani [Mundri Lal v. Sushila Rani, (2007) 8 SCC 609] . This Court held that jurisdiction under Section 25 of the 1887 Act, is wider than the revisional jurisdiction under Section 115 CPC. But pure finding of fact based on appreciation of evidence may not be interfered with, in exercise of jurisdiction under Section 25 of the 1887 Act. The Court also explained the circumstances under which, findings can be interfered with in exercise of jurisdiction under Section 25. There are very limited grounds on which there can be interference in exercise of jurisdiction under Section 25; they are, when (i) findings are perverse or (ii) based on no material or (iii) findings have been arrived at upon taking into consideration the inadmissible evidence or (iv) findings have been arrived at without consideration of relevant evidence.

Now in the aforesaid backdrop, the Court shall examine the submissions of the learned counsel for the parties. In order to finally determine the two submissions, it will be necessary to notice the relevant clauses of the lease deed.

The lease was executed on 13.04.2000. A term of 5 years was specifically provided in the deed and the tenant was permitted to raise temporary structure according to the plan annexed with the said lease and the specifications attached with it.

The lease specifically provided that the tenant shall not raise any permanent structures. The lease rent was agreed at Rs. 4,000/ per month for a period of 5 years from 01.01.1997.

Clause 2 of the said lease provided that upon the commencement of the lease, the lessee with all possible expedition raise suitable temporary structure in confirmity with the map and plan annexed so that the same is completed within a period of 6 months. It further provided that such constructions shall remain the property of the tenant during the term of the tenancy but immediately on expiry of such term or its sooner determination the tenant shall remove the same from the said land otherwise the same shall become the absolute property of the landlord who shall be entitled to enter upon and to take possession of the same.

In Clause 6 of the lease deed it was specifically provided that the tenant shall carry on his business but shall not make any construction of permanent nature.

Clause 11 of the lease deed provided that the tenant shall have the option to extend the lease of the said land and structure erected thereon for a further period of 5 years on the expiry of the lease period provided the lessee gives a notice in writing by registered post to the lessor of his intention to do so at least 3 calender months before the termination of the present lease provided that such notice shall be accompanied with a deposit of Rs. 5,000/- as security for regular payment of rent during the extended term. It further provided that the lease rent for the extended term would be Rs. 5,000/- and after the expiry of the said fixed term of 5 years, the lessor shall not be entitled to exercise a further option of renewal of the tenancy and shall hand over and deliver the land and structure (if not removed within three months) to the landlord/lessor in good condition as hereinbefore provided.

Clause 18 of the lease deed further provided that the lessee within 30 days before expiry of the period of this lease will intimate the lessor of his intention in writing to continue for a fresh term on the terms and conditions setforth by the lessor and the lessee to be finalized before the term of 5 years expiring on 31.12.2006 and no payment of rent will be withheld beyond a period of 90 days failing which the lessor shall be entitled to claim the interest at the rate of 18% per annum on the amount so withheld.

Clause 19 of the lease deed further provided that if the lessee continues even after the expiry of 10 years as mentioned above, the lessor will be entitled to claim the rent of Rs. 10,000/- per month and the second party i.e. the lessee would have no objection to pay the enhanced rent.

In the aforesaid backdrop, considering the covenants contained in the lease deed as well as the defence raised by the revisionist, it is to be ascertained whether the parties intended to create a permanent lease.

At this juncture, it will be relevant to notice that in India a lease may be in perpetuity as neither the Transfer of Property Act, 1882 nor the general law prohibits a lease in perpetuity. However, there are certain conditions as well as principles which have to be noticed in order to arrive at a conclusion whether a lease in question is in perpetuity. It will be also relevant to notice the difference between an extension of a lease as well as its renewal and what implications does it entail.

The Apex Court in the case of State of Uttar Pradesh Vs. Lalji Tandon reported in 2004 (1) SCC 1 had the occasion to consider the aforesaid aspect of the matter wherein it quoted with approval the proposition laid down by a Division Bench of the Andhra Pradesh High Court in the case Syed Jaleel Zane v. P. Venkata Murlidhar AIR 1981 AP 328. The Apex Court also approved a decision of the Division Bench of Calcutta High Court in the case of Secretary of State of India in Council Vs. A.H. Forbes. The relevant proposition quoted with approval by the Apex Court and as mentioned in paragraph 15, 16 and 17 of the case of Lal Ji Tandon (supra) is being reproduced hereinafter:-

15. A Division Bench decision of the Andhra Pradesh High Court in Syed Jaleel Zane v. P. Venkata Murlidhar [AIR 1981 AP 328] wherein Jeevan Reddy, J., as His Lordship then was, spoke for the Division Bench makes almost an exhaustive discussion of the relevant English and Indian law available on the point and we express our respectful agreement with the exposition of law as made therein. We note with approval the following proposition of law laid down therein: (AIR pp. 332 & 334, paras 14 & 19)

(i) In India, the law does not prohibit a perpetual lease; clear and unambiguous language would be required to infer such a lease. If the language is ambiguous the court would opt for an interpretation negating the plea of the perpetual lease;

(ii) To find an answer to the question whether a covenant for renewal contained in the lease deed construed properly and in its real context, entitles the tenant to continue as long as he chooses by exercising the option of renewal at the end of each successive period of 5 years subject to the same terms and conditions depends on the deed of lease being read as a whole and an effort made to ascertain the intention of the parties while entering into the contract. No single clause or term should be read in isolation so as to defeat other clauses. The interpretation must be reasonable, harmonious and be deduced from the language of the document;

(iii) The court always leans against a perpetual renewal and hence where there is a clause for renewal subject to the same terms and conditions, it would be construed as giving a right to renewal for the same period as the period of the original lease, but not a right to second or third renewal and so on unless, of course, the language is clear and unambiguous.

16. Another illuminating decision on the point is by Sir Ashutosh Mookerjee, J., speaking for the Division Bench of the Calcutta High Court in Secy. of State for India in Council v. A.H. Forbes [(1912) 17 IC 180 : 16 CLJ 217 (Cal)] . The Division Bench on a review of several English decisions held:

"(1) A lease, which creates a tenancy for a term of years, may yet confer on the lessee an option of renewal.

(2) If the lease does not state by whom the option is exercisable, it is exercisable (as between the lessor and lessee) by the lessee only, that is to say, a covenant for renewal, if informally expressed, is enforced only in favour of the lessee.

(3) The option is exercisable not merely by the lessee personally but also by his representative-in-interest.

(4) If the option does not state the terms of renewal, the new lease will be for the same period and on the same terms as the original lease, in respect of all the essential conditions thereof, except as to the covenant for renewal itself.

(5) There is no sort of legal presumption against a right of perpetual renewal. The burden of strict proof is imposed upon a person claiming such a right. It should not be inferred from any equivocal expressions which may fairly be capable of being otherwise interpreted. The intention in that behalf should be clearly shown; otherwise, the agreement is satisfied and exhausted by a single renewal.

(6) A covenant for renewal runs with the land.

(7) The position of a lessee, who has been always ready and willing to accept a renewal on proper terms, is the same in equity as if a proper lease had been granted. Where the covenant for renewal was still specifically enforceable at the commencement of a suit for ejectment against the lessee, the position of the lessee in equity is the same as if it had been specifically enforced."

17.Green v. Palmer [(1944) 1 All ER 670 : 1944 Ch 328 : 113 LJ Ch 223 : 171 LT 49 (ChD)] bears a close resemblance with the facts of the present case. There the parties had entered into a lease agreement for six months. One of the covenants in the lease read so: (All ER p. 670 G-H)

"The tenant is hereby granted the option of continuing the tenancy for a further period of six months on the same terms and conditions including this clause, provided the tenant gives to the landlord in writing four weeks' notice of his intention to exercise his option."

The plea raised on behalf of the tenant was that the clause gave him a perpetual right of renewal. Uthwatt, J. of the Chancery Division held: (All ER p. 671 E-G)

"[T]he first thing one observes is that, in terms, there is granted to the tenant a single option exercisable only once upon the named event, and the subject-matter of that option is an option ''of continuing the tenancy for a further period of six months on the same terms and conditions including this clause'. To my mind, what that means is this: the tenant is to be allowed once, and once only, the opportunity of continuing the tenancy -- continuing it for a further six months. Then we come to the critical words ''on the same terms and conditions including this clause'. As I read it, that means there is included in the new tenancy agreement a right in the tenant, if he thinks fit, to go on for one further six months, and when you have got to that stage you have finished with the whole matter. In other words, it comes to this: ''Here is your present lease. You may continue that, but I tell you, if you continue it, you continue it on the same terms as you were granted the original lease. You may continue it for a further 6 months with the right to go on for another 6 months.'

Upon that footing, in the events which have happened, all the landlord was bound to do under this arrangement was to permit the tenant to occupy for a period not exceeding 18 months in the whole from the time when the original lease was granted."

As far as the difference between renewal and extension of a lease is concerned, it will be noticed that where a covenant for renewal exists, it is exercised of course as a unilateral act by the lessee and the consent of the lessor is unnecessary. However, where the principal lease executed between the parties contains a renewal clause then the renewal has to take place in accordance with the said covenants and it must give rise to a fresh deed. However, in the case of extension, it is not necessary to have a fresh deed of lease executed as the extension of lease for the term agreed upon shall be a necessary consequence of the clause of extension but the option for renewal consistently with the covenant for the renewal has to be exercised in terms of the clause itself and failing the execution of a fresh deed, another lease for a fix term shall not come in existence, though, the principal lease inspite of the expiry of the term may continue by holding over. This aspect of the matter has been succinctly held by the Apex Court in paragraph 13 and 14 of the report in the case of Lal Ji Tandon (supra) which reads as under:-

"13. In India, a lease may be in perpetuity. Neither the Transfer of Property Act nor the general law abhors a lease in perpetuity. (Mulla on the Transfer of Property Act, 9th Edn., 1999, p. 1011.) Where a covenant for renewal exists, its exercise is, of course, a unilateral act of the lessee, and the consent of the lessor is unnecessary. (Baker v. Merckel [(1960) 1 All ER 668 : (1960) 1 QB 657 : (1960) 2 WLR 492 (CA)] , also Mulla, ibid., p. 1204.) Where the principal lease executed between the parties containing a covenant for renewal, is renewed in accordance with the said covenant, whether the renewed lease shall also contain similar clause for renewal depends on the facts and circumstances of each case, regard being had to the intention of the parties as displayed in the original covenant for renewal and the surrounding circumstances. There is a difference between an extension of lease in accordance with the covenant in that regard contained in the principal lease and renewal of lease, again in accordance with the covenant for renewal contained in the original lease. In the case of extension it is not necessary to have a fresh deed of lease executed, as the extension of lease for the term agreed upon shall be a necessary consequence of the clause for extension. However, option for renewal consistently with the covenant for renewal has to be exercised consistently with the terms thereof and, if exercised, a fresh deed of lease shall have to be executed between the parties. Failing the execution of a fresh deed of lease, another lease for a fixed term shall not come into existence though the principal lease in spite of the expiry of the term thereof may continue by holding over for year by year or month by month, as the case may be.

14. The issue whether a right to a new lease consequent upon the option for renewal having been successfully exercised should again contain the covenant for renewal, is not free from difficulty and has been the subject-matter of much debate both in England and in India. It would all depend on the wordings of the covenant for renewal contained in the principal lease, the intention of the parties as reflected therein and as determinable in the light of the surrounding relevant circumstances."

Applying the principles as extracted above and from the perusal of the material on record, it would indicate that the parties are not at variance in so far as the execution of the lease deed dated 13.04.2000 is concerned. It would indicate that the lease clearly provided for extension only for the period of 5 years on the same terms and conditions except that the lease rent would stand enhanced from Rs. 4,000/- to 5,000/- per month. The lease in Clause-II also contained a negative stipulation that after the expiry of the term which came to an end on 31.12.2006. The lessee shall not be entitled to exercise a further option of renewal of the tenancy and shall handover and deliver the land and structure to the lessor.

Once the execution of the lease is admitted and there is no material on record to indicate that the parties intended otherwise, while from the earlier lease onwards the term was always specified and no clause granted any right to the lessee to raise any permanent construction or that the lease was for a sufficiently long period to infer creation of a permanent lease. Moreover, as per the admitted case of the defendant in his written statement, that the lessor had instituted a SCC suit in 1977 wherein a compromise had been arrived at and as a consequence the lease was extended only till 1987. Thus, the material on record does not suggest any creation of lease of a permanent nature. There is no case made out by the revisionist that the lease was in the nature of perpetual lease. The principles as noted in the decision of the Lal Ji Tandon (supra) are clearly attracted in the present case and the deed dated 13.04.2000 itself created a lease for a specific term with a negative stipulation disentitling the revisionist to seek a further option of renewal. In the aforesaid circumstances, it cannot be said that the lease was in perpetuity.

The learned counsel for the revisionist has relied upon a decision of the Patna High Court reported in (i) AIR 1924 Patna 88 in the case of A.H. Forbes Vs. Hanuman Bhagat and Others, (ii) Society of State Vs. Itwari reported in AIR 1937 Alld. 572 and (iii) Savitri Devi and Others Vs. First Additional District and Sessions Judge reported in 1994 (24) ALR 181 to buttress his submissions on the point of permanent lease.

In the case of A.H. Forbes (supra) the lease in question was open ended i.e. without any fix term. It is in view of the aforesaid matter that the Division Bench of the Patna High Court found that the surrounding circumstances and intention indicated that the lease was of a permanent nature. However, the said decision can clearly be distinguished, inasmuch as, in the present case the lease as noticed above was for a particular period and also it contained a negative stipulation not entitling the revisionist for any further extension.

In the case of Itwari (Supra), the Court considered the principle of estoppel and noticed that the plaintiffs had failed to deny or rebutt that the defendant was allowed to erect pakka construction, but in the instant case there is a lease between the parties with specific stipulation, nor there are any pleadings or evidence to invoke the doctrine of estoppel, hence, the said case cannot be pressed into service in the present case.

The case of Savitri Devi is also not applicable as it relates to the applicability of Order 41 Rule 27 C.P.C. in respect of revision under Section 25 of the Provincial Small Cause Court Act and hence the aforesaid decisions also does not come to the rescue of the revisionist and moreover in view of the law settled by the Apex Court in the case of Lal Ji Tandon (supra) as noticed above, the first submission of the learned counsel for the revisionist fails.

The other submission of the learned counsel for the revisionist as to whether the SCC Court had the jurisdiction to hear and try the suit is concerned, it would be seen that it is pleaded in the plaint as well as as per the covenants of the lease deed that land was leased out to the defendant-revisionist who was permitted to raise temporary constructions. It was also agreed that upon the expiry of the term or upon determination of the lease, the lessee would remove the said constructions in case if he failed to do so within a period of three months then the same would vest with the lessor.

In this view of the matter where upon the expiry of the term of the lease in the year 2006, the defendant-revisionist refused to remove the said constructions then as per the covenants of the lease, the same vested with the landlord. Clause 11 of the lease contains the specific stipulation which is being reproduced for ready reference:-

"That the second party will have the option to extend the lease of the said land and structure erected thereon for a further period of five years on the expiry of the lease period, provided the second party gives a notice in writing by registered post to the first party of his intention to do so as at least three calender months before the termination of the present lease provided, as that with such notice the second party shall deposit with the First party the sum of Rs. 5,000/- as security for regular payment of rent during such extended term as hereinafter mentioned and for due performance of the term of tenancy. Provided further that the rent payable by the second party to the first party during the extended period of the lease shall be Rs. 5,000/- per month which will be the rent of the land under tenancy. After the expiry of the said fresh terms of Five years the second party shall not be entitled to exercise a further option of renewal of the tenancy and shall handover and deliver the land and structure (if not removed within three months) to the first party in a good condition as herein-before provided."

..........[Emphasis supplied by the Court]

From the perusal of the aforesaid clause, it would indicate that it was incumbent on the lessee to hand over and deliver the land and structure (if not removed within three months) to the lessor. This clearly indicates the intention of the parties which is manifested in the lease deed that in case if the lessee failed to remove the same, he was bound to handover both the land and the structures to the lessor.

Section 108 (q) of the Transfer of the Property Act also casts an obligation on the lessee to handover the vacant possession to the lessor. Whereas Section 108 (d) also indicates that any accession made to the property leased would vest with the lessor. The relevant portion of the aforesaid Section reads as under:-

108. Rights and liabilities of lessor and lessee.--In the absence of a contract or local usage to the contrary, the lessor and the lessee of immoveable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:--

-------****------****----

(A) Rights and Liabilities of the Lessor

(a) The lessor is bound to disclose to the lessee any material defect in the property, with reference to its intended use, of which the former is and the latter is not aware, and which the latter could not with ordinary care discover;

(b) the lessor is bound on the lessee's request to put him in possession of the property;

(c) the lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contracts binding on the lessee, he may hold the property during the time limited by the lease without interruption.

The benefit of such contract shall be annexed to and go with the lessee's interest as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.

(B) Rights and Liabilities of the Lessee

------*****----****-------

(d) If during the continuance of the lease any accession is made to the property, such accession (subject to the law relating to alluvion for the time being in force) shall be deemed to be comprised in the lease;

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(q) on the determination of the lease, the lessee is bound to put the lessor into possession of the property.

Thus, from the provisions of the Transfer of Property Act read in light of the covenants of the lease clearly indicates that the intention was that the structures would vest with the lessor in case if it is not removed. Admittedly, the defendant-revisionist did not remove the said constructions, hence, after having agreed and taken the benefit of the lease dated 13.04.2000 having enjoyed its complete term cannot approbate and reprobate by denying the same. Accordingly, this Court is of the view that the second submission regarding jurisdiction of the Court is also misconceived.

In light of the decisions of this Court in the case of Smt. Mehroonisha (supra). Govardhan Goyal (supra) as well for the reasons indicated hereinabove, the submissions of the learned counsel for the revisionist fails.

It has also been feebly argued by the revisionist that the revisionist was prevented by sufficient cause from contesting the proceedings before the SCC Court as the original defendant Sri Anil Singhal had suffered paralysis and for the said reasons, certain documents and material could not be placed on record of the Trial Court for which the application has been made before this Court and it has remained undisposed till the hearing began.

The Court has considered this aspect of the matter as well. In the instant case, the relationship of lessor and lessee is not disputed. The execution of the lease deed dated 13.04.200 is not disputed. The term of lease as agreed by the parties to the aforesaid lease has expired. The notice issued by the lessor terminating the tenancy is also not disputed. Apart from the fact that the two main issues raised by the revisionist have been considered and dealt with, hence, in this aforesaid factual background this Court at this stage is not inclined to entertain such a plea, accordingly, the same is also rejected and the application of the revisionist shall stand decided in terms of this judgment.

No other point has been pressed, accordingly, for the reasons recorded, the revision fails. The interim order, if any, shall stand vacated. The judgment passed by the Additional District Judge, Court No. 1, Barabanki acting as Small Causes Court dated 03.09.2012 in SCC Suit No. 3 of 2007 is affirmed.

The revision is dismissed. In the aforesaid facts and circumstances, there shall be no order as to costs. The office is directed to remit the record of the Trial Court to the court concerned within two weeks.

[Jaspreet Singh, J.]

Order Date: 03.06.2021

Asheesh