Karnataka High Court
Shri Y T Narendra Babu vs The Indian Oil Corporation on 21 July, 2022
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 21ST DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
R.F.A.NO.1251 OF 2021
BETWEEN
SHRI Y.T. NARENDRA BABU
S/O LATE Y. THAMMAIAH
AGED ABOUT 64 YEARS
R/AT NO.3, YELEMANE,
1ST MAIN, 1ST STAGE, 1ST CROSS
WEST OF CHORD ROAD, RAJAJINAGAR
BENGALURU - 560 010.
...APPELLANT
(BY SRI. G.A.SRIKANTE GOWDA, ADVOCATE)
AND
1. THE INDIAN OIL CORPORATION
REPRESENTED BY ITS CHIEF DIVISIONAL
RETAIL SALES MANAGER, BANGALORE DIVISION
NO.29, P. KALING RAO ROAD
BENGALURU - 560 027.
2. M/S. IBP CO.LTD.,
REP. BY DEPUTY GENERAL MANAGER (MARKETING)
IBP HOUSE,
NO.34-A, NIRMAL CHANDRA STREET
CALCUTTA - 700 013.
3. SMT. K.S. RASHMI RAMESH
W/O (NOT KNOWN), PETROL BUNK PROPERTY
42/5, NAGADEVANAHALLI
KENGERI HOBLI, KENGERI
BENGALURU - 560 056.
...RESPONDENTS
(BY SRI. S. VIGHNESHWARA SHASTRY, SENIOR ADVOCATE FOR
SMT. AZRA.J. BUNDGE, ADVOCATE FOR
SRI. M. DINESH BHAT FOR R-1 & R-2;
2
SRI. A.S. HARISHA, ADVOCATE FOR R-3)
THIS APPEAL IS FILED UNDER ORDER XLI RULE 1 R/W
SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE
DATED: 18.11.2021 PASSED IN O.S.NO.3396/2018 ON THE FILE OF
THE VII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, DISMISSING THE SUIT FOR EJECTMENT AND MESNE
PROFIT.
THIS APPEAL COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the unsuccessful plaintiff in O.S.No.3396/2018 is directed against the impugned judgment and decree dated 18.11.2021 passed by VII Additional City Civil and Sessions Judge, Bengaluru (for short "the trial Court") whereby the said suit filed by the appellant/plaintiff against the respondent-defendant for ejectment/eviction of the respondent from the suit schedule immovable property, for mesne profits/damages and other reliefs was dismissed by the trial Court.
2. The material on record indicates that the plaintiff instituted the aforesaid suit making averments with regard to the facts and circumstances under which the plaintiff entered into a registered lease deed dated 02.06.2003 with defendant 3 No.2 leasing out the suit schedule property in its favour for a period of 15 years with effect from 01.04.2003 and expiring on 31.03.2018. It was contended that there was a dispute between the plaintiff-lessor (landlord) and defendant No.2 - lessee (tenant) with regard to dealership of the plaintiff to the retail outlet of defendant No.2 that was being run in the suit schedule property. Though the said claim of the plaintiff was allowed by a learned Single Judge of this Court and confirmed by the Hon'ble Division Bench, the Apex Court vide Order dated 16.07.2013, allowed the appeal filed by respondent No.1 - Indian Oil Corporation and rejected the claim of dealership of the appellant. In the meanwhile, in the year 2007-08, respondent No.2 - M/s. IBP Company Limited in whose favour the aforesaid lease deed dated 02.06.2003 was executed by the appellant stood merged with respondent No.1-Indian Oil Corporation, who acquired the rights and liabilities of respondent No.1 in the suit schedule property including the lease hold rights.
4
3. The plaintiff contended that as per the terms and conditions of the lease, in particular, Clause No.6 of the lease deed dated 02.06.2003, respondent No.1 was liable to quit, vacate and deliver vacant possession of the suit schedule property to the plaintiff. The said lease deed contained renewal clause No.9, which stipulated that the lease could be renewed for a further period of 15 years only upon mutually agreeable terms and a fresh document has to be executed between the lessor and lessee for a further extension of lease. However, since the appellant-lessor did not want to renew the lease further beyond 31.03.2018, he addressed a communication dated 11.04.2017 and also got issued a legal notice dated 03.10.2017 to respondent No.1 intimating it that he is not interested in renewing the lease for any further period and called upon respondent No.1 to vacate and hand over vacant possession of the schedule property to the plaintiff immediately upon expiry of the lease period ending on 31.03.2018. It is further contended that instead of complying with the demand made in the aforesaid letter and notice 5 issued by the plaintiff, respondent No.1 issued a letter dated 05.10.2017 and 28.06.2018 (after institution of the suit on 08.05.2018) calling upon the plaintiff to renew the lease for a further period of 15 years from 01.04.2018 and to inform respondent No.1 about the terms and conditions of renewal so as to enable it to take further action on organizing negotiation with their Lease Rental Negotiation Committee. It is also contended that since the defendant did not comply with the demands and requests made by the plaintiff and the lease expired, terminated and came to an end by efflux of time on 31.03.2018, the plaintiff instituted the aforesaid suit against the defendant.
4. The defendants filed their written statement inter alia disputing the claims and contentions of the plaintiffs and sought for dismissal of the suit. It was contended that defendant No.2 in whose favour the lease by the plaintiff had been executed stood merged with defendant No.1 in 2007-08, all rights of defendant No.2 were acquired and taken over by defendant No.1 including the rights created in the suit 6 schedule property under the lease deed dated 02.06.2018. It was also contended that in view of the renewal clause, defendants are entitled to renewal of lease and the intention of defendant No.1 to renew the lease has been communicated to the plaintiff vide letters dated 05.10.2017, 29.12.2017 and 28.06.2018 and consequently, the plaintiff is not entitled to any relief in the suit. It is further contended that defendant No.1 is entitled to a decree of Specific Performance of the renewal of the lease deed for a further period of 15 years and a counter claim in this regard was sought for by defendant No.1. In this context, it is relevant to state that though at para No.24, defendant No.1 stated that he was entitled to seek renewal of the lease by way of a counter claim, defendant No.1 did not pay any Court fee or seek suitable relief of Specific Performance of the renewal clause as can be seen from the trial Court records. In other words, except merely stating that defendant No.1 is entitled to specific performance of the renewal clause in the lease deed, defendant No.1 did not make a proper, legal or correct counter claim as mandatorily 7 required under Order VIII Rule 6-A CPC. Under these circumstances, the trial Court framed the following issues.
1. Whether the plaintiff proves that defendants have not manner of right to continue to be in possession of suit schedule property in pursuance of the terms of lease expired on 31.03.2018?
2. Whether the Plaintiff further establishes that on 11.04.2017 he made a representation to the 1st defendant requesting them not to allot the dealership to any other person beyond lease period?
3. Whether defendants proves that plaintiff has executed registered sale deed in favour of 2nd Defendant which was merged with defendant No.1 and as per Clause-9 of the said lease deed, lessee shall be desirous of renewing this present lease?
4. Whether an enquiry with regard to mesne profit/damages as claimed by plaintiff in respect of suit schedule property against defendant is necessary?
5. What order or decree?
5. The plaintiff examined himself as PW.1 and documentary evidence at Exs.P-1 to P-13 were marked. On 8 behalf of the defendants, the authorised agent of defendant No.1 was examined as DW.1 and documentary evidence at Exs.D-1 to 3 were marked.
6. By the impugned judgment and decree, the trial Court came to the conclusion that in view of the merger of defendant No.2, the original lessee with defendant No.1 in 2007-08 coupled with the renewal clause No.9 in the lease deed dated 02.06.2003 executed by the plaintiff in favour of defendant No.2, defendant No.1 is desirous of renewing the lease for a further period of 15 years from 01.04.2018 and consequently, the plaintiff was not entitled to the reliefs sought for by him. The trial Court also held that since the plaintiff had not succeeded in his litigation for acquiring dealership from defendant No.1 and because he did not send any reply to the notices of renewal issued by defendant No.1, there was tacit/implied acceptance by plaintiff for renewal of lease and as such, the plaintiff was not entitled to seek eviction of defendant No.1 from the suit schedule premises. Aggrieved by the impugned judgment and decree passed by the trial 9 Court, plaintiff is before this Court by way of the present appeal.
7. The following points arise for my consideration in the present appeal:
i. Whether the trial Court was justified in coming to the conclusion that the lease dated 02.06.2003 executed between the plaintiff and defendant No.2 for a period of 15 years commencing from 01.04.2003 and expiring on 31.03.2018 was extended for a further period of 15 years commencing from 01.04.2018 in favour of defendant No.1?
ii. Whether the impugned judgment and decree warrants interference by this Court in the present appeal?
Re. Point No.i:
8. The material on record discloses that it is an undisputed fact that the lease deed was executed between defendant No.2 and plaintiff for a period of 15 years commencing from 01.04.2003 and expiring on 31.03.2018. It is also not in dispute that defendant No.2 merged with 10 defendant No.1 in 2007-08 and that the lease deed contains a renewal clause, which reads as under:
"9) If the lessee shall be desirous of renewing this present lease and of such desire shall have given to the lessor not less than three months notice prior to the expiration hereof and shall have duly observed and performed all the terms and conditions hereof the lessor shall grant to them a renewal lease of the said premises for a further period of 15 years at mutually agreeable terms and a fresh document may be executed by the lessee and the lessor for the further extension of the lease."
A perusal of the said Clause will clearly indicate that the lease can be renewed for a further period of 15 years at mutually agreeable terms i.e., terms to be arrived at by mutual consent between respondent No.1 and the plaintiff and that a fresh lease deed evidencing further extension of time by a further period of 15 years has to be executed between the plaintiff and respondent No.1.
9. The material on record clearly indicates that no further extension of lease deed was executed between the 11 plaintiff and defendant No.1; so also, no consensus/consent has been arrived at between the plaintiff and defendant No.1 for the purpose of extension of lease and instead, the plaintiff called upon defendant No.1 to quit, vacate and deliver vacant possession of the suit schedule property to the plaintiff by issuance of letter at Ex.P-12 dated 11.04.2017 and legal notice dated 03.10.2017 at Ex.P-7 categorically and clearly informing respondent No.1 that he was not interested in either renewing the lease or extending it by a further period. It is therefore clear that both the requirements contemplated in the renewal clause No.9 to the lease deed viz., mutual agreeable terms and execution of a lease deed had not happened between the parties thereby indicating that the lease had not been extended by a further period of 15 years from 01.04.2018 as wrongly held by the trial Court.
10. The trial Court also came to the erroneous conclusion that the letters at Exs.D-2 and 3 dated 05.10.2017 and 29.12.2017 issued on behalf of respondent No.1 had not been replied to by the plaintiff, which was sufficient to 12 establish extension of lease. This finding is incorrect and contrary to law and facts in as much as the plaintiff had intimated respondent No.1 much prior to the said notices that he was not interested in renewal/extension of the lease by issuing Ex.P-12 and Ex.P-7 referred to supra and as such, merely because the plaintiff did not send any reply to Ex.D-2 and D-3, in the absence of mutual negotiations and agreement between the plaintiff and defendant No.1 culminating in a lease deed in terms of the renewal clause and as sought for by respondent No.1 itself in Ex.D-2 and 3, it cannot be said that there was any renewal/extension of lease as wrongly held by the trial Court. It is needless to state that the subsequent letter dated 28.06.2018 at Ex.P-13 was issued by respondent No.1 to the plaintiff after institution of the suit and consequently, the said document being a post litem document, the same cannot be relied upon by defendant No.1 in support of its defence.
11. In so far as the claim/defence urged by defendant No.1 at paragraph 24 of the written statement with regard to 13 renewal of the lease for a further period of 15 years is concerned, the said plea cannot be construed, interpreted or treated as a counter claim within the meaning of Order VIII Rule 6-A CPC and the said defence/plea cannot be made the basis to non-suit the plaintiff especially when no steps whatsoever including payment of Court Fee etc., had been taken by defendant No.1 after filing the written statement and as such, even this defence of defendant No.1 cannot be accepted. At any rate, specific performance of the said renewal clause cannot be sought for by defendant No.1 in view of the express language employed in Clause No.9, which mandates consensus ad idem and renewal/extension of lease by a further period of 15 years only on mutually agreeable terms, which had not been arrived at between the parties. Under these circumstances, even this contention urged by defendant No.1 cannot be accepted. In the case of Hardesh Ores Private Limited Vs. Hede and Company - (2007) 5 SCC 614, the Apex Court held as under:
"28. The next averment in the plaint which is relevant is para 23 thereof wherein the appellant-14
plaintiff stated that since the original period of 5 years was to end on 31-12-2001 in terms of clause 2.2 of the agreement, the appellant-plaintiff exercised its option to renew the said agreement for further period of 5 years which was conveyed to the respondent vide its letter dated 4-12-2001 and which was received by the respondent-defendant on 7-12-2001. In the same paragraph it is stated that the extraction agreement entered into between the plaintiff-appellant and the defendant-respondent was operative and stood renewed up to 31-12-2006. A copy of the letter dated 4-12-2001 has been annexed to the plaint and marked as Ext. 41. The plaintiff-appellant further goes on to say that it received the reply from the defendant- respondent dated 29-12-2001 alleging that the plaintiff-appellant was not entitled to exercise the option of renewal. The said letter has been annexed to the plaint and marked as Ext. 43. A mere perusal of the letter dated 4-12-2001 addressed by the appellant to the respondent is enough to satisfy the court that in terms of clause 2.2 of the agreement the appellant exercised its option to renew the captioned agreement for a further period of 5 years commencing from 1-1-2002 on the same terms and conditions as contained in the original agreement. The letter clearly states that after 31-12-2001 the captioned agreement will stand renewed for the period 1-1-2002 to 31-12- 2006. To this the respondent-defendant replied by its 15 letter dated 29-12-2001, the relevant part whereof reads as follows:
"We do not agree with your contention in your letter dated 4-12-2001 that the agreement in reference stands renewed as alleged from 1-1- 2002 to 31-12-2006 or for any other period whatsoever."
29. It is thus apparent that the appellant-plaintiff exercised its right under the agreement to claim a renewal of the term of the lease and the respondent- defendant refuted that claim and denied the assertion that the agreement stood renewed as alleged from 1- 1-2002 to 31-12-2006 or for any other period whatsoever. In view of the correspondence exchanged between the parties, clearly a cause of action accrued to the appellant-plaintiff since its right of renewal as a matter of course claimed by it was denied by the respondent-defendant. Whether the denial was justified or not is another matter. In the facts and circumstances of the case, a right accrued to the appellant-plaintiff to sue the respondent- defendant and to get a declaration that the agreement stood automatically renewed for a further period of 5 years. It is the admitted position that the appellant- plaintiff did not pursue the matter further and never sought relief from any court of law of competent jurisdiction for a declaration that the lease stood renewed automatically upon the appellant-plaintiff 16 exercising its option under the agreement. It was contended on behalf of the respondent-defendant that there is no question of automatic renewal of an agreement or lease by mere exercise of the option which the appellant-plaintiff may claim under the agreement. The respondent contends that renewal of an agreement or lease requires execution of another document evidencing such renewal and, in its absence, it cannot be argued that the agreement or lease stood automatically renewed. It was also urged relying upon the decision of this Court in Ambica Quarry Works v. State of Gujarat [(1987) 1 SCC 213] that the grant of renewal is a fresh grant and must be consistent with law. The respondents relied on the decision of this Court in Provash Chandra Dalui v. Biswanath Banerjee [1989 Supp (1) SCC 487] wherein this Court considered the difference between "extension" and "renewal" of a lease. This Court observed thus: (SCC p. 496, para 14) "14. It is pertinent to note that the word used is 'extension' and not 'renewal'. To extend means to enlarge, expand, lengthen, prolong, to carry out further than its original limit. Extension, according to Black's Law Dictionary, means enlargement of the main body; addition to something smaller than that to which it is attached; to lengthen or prolong. Thus extension ordinarily implies the continued existence of something to be extended. The distinction between 'extension' and 'renewal' is chiefly that in the case of renewal, a new lease 17 is required, while in the case of extension the same lease continues in force during additional period by the performance of the stipulated act."
"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."
31. Having regard to these decisions we must hold that in order to give effect to the renewal of a lease, a document has to be executed evidencing the renewal of the agreement or lease, as the case may be, and there is no concept of automatic renewal of lease by 18 mere exercise of option by the lessee. It is, therefore, not possible to accept the submission urged on behalf of the appellant-plaintiffs that by mere exercise of option claiming renewal, the lease stood renewed automatically and there was no need for executing a document evidencing renewal of the lease.
39. We are of the view that the respondents are right in contending that enforcement of the negative covenants presupposes the existence of a subsisting agreement. As noticed earlier, the law is well settled that the renewal of an agreement or lease requires execution of a document in accordance with law evidencing the renewal. The grant of renewal is also a fresh grant. In the instant case, the appellant-plaintiff did exercise their option and claimed renewal. The respondents denied their right to claim renewal in express terms and also unequivocally stated that the agreement did not stand renewed as contended by the appellants. Having regard to these facts it must be held that a cause of action accrued to the appellant- plaintiff when their right of renewal was denied by the respondents. This happened in December 2001 and, therefore, within three years from that date they ought to have taken appropriate proceedings to get their right of renewal declared and enforced by a court of law and/or to get a declaration that the agreement stood renewed for a further period of 5 years upon the 19 appellants' exercising their option to claim renewal under the original agreement. The appellant-plaintiffs have failed to do so. However, the plaint proceeds on the assumption that the original agreement stood renewed including the negative covenants contained in clauses 15 and 20 of the original agreement which authorised only the appellants to extract ore from the mine with an obligation cast on the respondent- defendants not to interfere with the enjoyment of their rights under the agreement. In the facts of this case, in the suit prayer for injunction based on negative covenants could not be asked for unless it was first established that the agreement continued to subsist. The use of the words "during the subsistence of this agreement" in clause 15, and "during the pendency of this indenture" in clause 20 of the agreement is significant. In the absence of a document renewing the original agreement for a further period of 5 years and in the absence of any declaration from a court of law that the original agreement stood renewed automatically upon the appellants exercising their option for grant of renewal, as is the case of the appellants, they cannot be granted relief of injunction, as prayed for in the suit, for the simple reason that there is no subsisting agreement evidenced by a written document or declared by a court. If there is no such agreement, there is no question of enforcing clauses 15 and 20 thereof. The appellants ought to 20 have prayed for a declaration that their agreement stood renewed automatically on exercise of option for renewal and only on that basis could they have sought an injunction restraining the respondents from interfering with their possession and operation. Having not done so, they cannot be permitted to camouflage the real issue and claim an order of injunction without establishing the subsistence of a valid agreement. In the instant suit as well they could have sought a declaration that the agreement stood renewed automatically but such a claim would have been barred by limitation since more than 3 years had elapsed after a categoric denial of their right claiming renewal or automatic renewal by the respondent- defendants."
12. So also, in the case of C. Albert Morris Vs. K. Chandrasekaran and others - (2006) 1 SCC 228, the Apex Court held as under:
"We are, therefore, of the opinion that mere acceptance of rent by the landlord, the first respondent herein, from the tenant in possession after the lease has been determined either by efflux of time or by notice to quit would not create a tenancy so as to confer on the erstwhile tenant the status of a tenant 21 or a right to be in possession. We answer this issue accordingly.
42. The argument of Mr L.N. Rao, learned Senior Counsel appearing for the appellant is that the words "right to site" appearing in Rule 153(1) of the Petroleum Rules must be given liberal interpretation having regard to the public interest subserved by the petrol bunks which are essential for the smooth flow of goods and services as also for the movement of persons. Rule 153(1)(i) of the Petroleum Rules is "right to the site" for storing petroleum. It is not the right for storing petroleum on the site. That is so because that aspect is dealt with specifically in sub- clause (ii) of Rule 153(1) which refers to a no- objection certificate, which the District Authority or the State Government is required to give. No-objection certificate which is granted under Rule 144 is the one given by the authority concerned stating that it has no objection for the storage of petroleum on the site after examining the site plan and other relevant factors. The words "right to the site" have, therefore, to be understood as referring to the right to the site on which the petroleum is stored. A person can be said to have a right to something when it is possible to find a lawful origin for that right. A wrong cannot be a right of a person who trespasses on to another's land and a trespasser cannot be said to have a right to the land 22 vis-à-vis the owner because he happens to be in possession of that land. Mere presence on the land by itself does not result in a right to the land. Such presence on the premises may ripen into a right by reason of possession having become adverse to the true owner by reason of the passage of time and possession being open, uninterrupted, continuous and in one's own right.
43. In our opinion, any right which the dealer has over his site was the right which he had acquired in terms of the lease. When that lease expired and when the landlord declined to renew the same and also called upon the erstwhile tenant to surrender possession, the erstwhile lessee could no longer assert that he had any right to the site. His continued occupation of something which he had no right to occupy cannot be regarded as source of a right to the land of which he himself was not in lawful possession. As observed by this Court in M.C. Chockalingam v. V. Manickavasagam [(1974) 1 SCC 48] litigious possession cannot be regarded as lawful possession. As rightly pointed out by the Division Bench of the High Court the right referred to in this rule has necessarily to be regarded as right which is in accordance with law and the right to the site must be one which is capable of being regarded as lawful. We have already referred to Bhawanji Lakhamshi v.23
Himatlal Jamnadas Dani [(1972) 1 SCC 388 : (1972) 2 SCR 890] wherein this Court held that the act of holding over after the expiration of the term does not create a tenancy of any kind. A new tenancy is created only when the landlord assents to the continuance of the erstwhile tenant or the landlord agrees to accept rent for the continued possession of the land by the erstwhile tenant. The contention of Mr L.N. Rao that the landlord's assent should be inferred from the conduct of the landlord who had filed the suit for ejectment, but did not pursue the same, has no force. This suit was withdrawn with liberty to file a fresh suit on the same cause of action, liberty for which the Court has granted. The possession of this site by the erstwhile lessee does not ripen into a lawful possession merely because the landlord did not proceed with the suit for ejectment at that time, but reserved the right to bring such a suit at a later point of time. That cannot amount to an assent on his part to the continued occupation of the land under cover of a right asserted by the erstwhile lessee. The words "right to the site" in Rule 153(1)(i) must, therefore, in our opinion, be given their full meaning and the effect that unless the person seeking a licence is in a position to establish a right to the site, he would not be entitled to hold or have his licence renewed. We have already rejected the contention of Mr L.N. Rao that the appellant tenant is a statutory tenant for the 24 reasons recorded earlier. The lease deed is very clear as to what was leased. The lease was of vacant land. That is evident from the recitals in the plaint, legal notice, lease deed, etc. It is, therefore, not in dispute that the lease of land is not covered by the statute, the Pondicherry Buildings (Lease and Rent Control) Act, 1969 in force extending protection to the tenants."
13. Similarly, in the case of Shanthiprasad Devi and Others Vs. Shankar Mahato and others - (2005) 5 SCC 543, the Apex Court held as under:
"18. We fully agree with the High Court and the first appellate court below that on expiry of period of lease, mere acceptance of rent for the subsequent months in which the lessee continued to occupy the lease premises cannot be said to be a conduct signifying "assent" to the continuance of the lease even after expiry of lease period. To the legal notice seeking renewal of lease, the lessor gave no reply. The agreement of renewal contained in clause (7) read with clause (9) required fulfilment of two conditions:
first, the exercise of option of renewal by the lessee before the expiry of original period of lease and second, fixation of terms and conditions for the renewed period of lease by mutual consent and in 25 absence thereof through the mediation of local mukhia or panchas of the village. The aforesaid renewal clauses (7) and (9) in the agreement of lease clearly fell within the expression "agreement to the contrary" used in Section 116 of the Transfer of Property Act. Under the aforesaid clauses option to seek renewal was to be exercised before expiry of the lease and on specified conditions.
19. The lessor in the present case had neither expressly nor impliedly agreed for renewal. The renewal as provided in the original contract was required to be obtained by following a specified procedure i.e. on mutually agreed terms or in the alternative through the mediation of Mukhias and Panchas. In the instant case, there is a renewal clause in the contract prescribing a particular period and mode of renewal which was "an agreement to the contrary" within the meaning of Section 116 of the Transfer of Property Act. In the face of specific clauses (7) and (9) for seeking renewal there could be no implied renewal by "holding over" on mere acceptance of the rent offered by the lessee. In the instant case, option of renewal was exercised not in accordance with the terms of renewal clause that is before the expiry of lease. It was exercised after expiry of lease and the lessee continued to remain in use and occupation of the leased premises. The rent 26 offered was accepted by the lessor for the period the lessee overstayed on the leased premises. The lessee, in the above circumstances, could not claim that he was "holding over" as a lessee within the meaning of Section 116 of the Transfer of Property Act.
20. So far as the cross-suit for specific performance of agreement of renewal of lease filed by the lessee is concerned, there are concurrent findings of all the courts that the option for renewal was exercised after the expiry of the lease period. The option for renewal exercised was, therefore, contrary to the terms of clause (9) of the lease agreement. The clauses of renewal requiring fixation of the terms and conditions for renewed period of lease mutually or in the alternative through village Mukhia and Panchas are uncertain and incapable of specific performance.
After legal notice of renewal, the lessor did not send any positive reply and instead filed a suit for ejectment, therefore, there was no mutual consent for renewal. The forum agreed to for deciding dispute was through local Mukhia and Panchas of the village. The renewal clauses of the agreement were vague and incapable of specific performance. The Mukhia and Panchas were not named in the agreement and the method of choosing either of the two forums was not specified.
27
21. The cross-suit filed by the lessee for specific performance of the agreement of renewal was rightly dismissed throughout. The original period of lease expired on 19-7-1977 and the suit for ejectment on the ground of expiry of the lease was filed on 16-6- 1978 which was well within the period of limitation and rightly decreed.
22. For the additional reasons discussed by us above, the appeals have no force.
23. As the leased premises were in use for running a petrol pump, we grant the appellant a reasonable period of two months from the date of this order to deliver possession of the leased premises after removing her installations and other movables.
24. The above grace period to vacate is granted to the appellant only on her filing an undertaking on affidavit to this Court, within a period of two months that she would pay all arrears of rent and mesne profits at the originally agreed rate for the total period of occupation of the property. The lessee shall also undertake to deliver vacant possession of the property in the same condition in which it was initially taken.
25. For the aforesaid reasons, we find no merits in these appeals preferred by the lessee, they are accordingly dismissed with costs."
28
14. The contention of the respondent that since the trial Court did not render any finding on issue Nos.1, 2 and 4, the matter is liable to be remitted back to the trial Court cannot be accepted in view of the fact that issue Nos.1, 2 and 4, which pertains to eviction of respondent / defendant No.1 from the suit schedule premises are dependent on finding on issue No.3, which has already been answered by me above in favour of the appellant-plaintiff. Further the material on record discloses that both parties have adduced oral and documentary evidence on all issues including issue Nos.1, 2 and 4 also and have been cross-examined by the parties and no application for additional evidence or additional documents has been filed by either of the parties in the present appeal.
15. Under these circumstances, merely because no findings have been recorded by the trial Court on issue Nos.1, 2 and 4, the said circumstance cannot be relied upon by respondent No.1 to contend that there was a mistrial or that the matter requires to be remitted back to the trial Court particularly when both parties went to trial being fully 29 conscious and aware of each others rival claims and contentions. It is also relevant to state that since both parties were fully aware of the rival contentions and had adduced oral and documentary evidence in support of their respective claims, coupled with the fact that the finding on issue No.3 has been set aside by me as stated hereinbefore and the said issue is held in favour of the appellant, there is not warrant or reason to remand/remit the matter back to the trial Court since the same would be only an exercise in futility. Accordingly, this contention urged by the respondents cannot be accepted.
16. Upon re-evaluation and re-appreciation of the entire material on record, I am of the considered opinion that the trial Court completely misdirected itself in coming to the erroneous conclusion that the lease between the plaintiff and respondent No.1 stood extended and renewed by a further period of 15 years commencing on 01.04.2018, which is contrary to law and the material on record warranting interference by this Court.
30
17. Accordingly, point No.i is answered in favour of the appellant and against the respondents by holding that there was no renewal of the lease dated 02.06.2018 beyond the stipulated period of 31.03.2018 and the said lease stood expired and terminated by efflux of time and pursuant to which defendant No.1 did not have any right to continue to remain in occupation and enjoyment of the suit schedule property.
Re. point No.ii :
18. A perusal of the impugned judgment and decree will indicate that after answering issue No.3 in favour of defendant No.1 by holding that the lease has stood renewed/extended by a further period of 15 years, the trial Court held that the remaining issues did not arise for consideration. However, in view of my finding above at point No.i that there was no renewal of the lease dated 02.06.2018 beyond the stipulated period of 31.03.2018 and the said lease stood expired and terminated by efflux of time and pursuant to which defendant No.1 did not have any right to continue to 31 remain in occupation and enjoyment of the suit schedule property, I am of the considered opinion that the finding recorded by the trial Court on issue No.3 would necessarily have to be set aside and answered in favour of plaintiff and consequently, the remaining issues would also have to be answered in favour of the plaintiff by setting aside the impugned judgment and decree passed by the trial Court and decreeing the suit in favour of the plaintiff as sought for by him.
Accordingly, point No.ii is answered in favour of the appellant.
19. In the result, I pass the following:
ORDER i. The appeal is hereby allowed.
ii. The suit of the plaintiff is decreed as prayed for.
iii. However, having regard to the fact that respondent No.1 is a Public Sector Undertaking, nine months time is granted 32 to quit and deliver vacant possession of the suit schedule premises to the appellant.
Sd/-
JUDGE SV/BMC