Jharkhand High Court
Hindustan Petroleum Corporation Ltd. A ... vs Malan on 9 April, 2018
Author: Rajesh Kumar
Bench: Rajesh Kumar
-1-
Second Appeal No. 28 of 2016
(Appeal under Section 100 of the Code of Civil Procedure)
...
1. Hindustan Petroleum Corporation Ltd. a company incorporated under Indian Companies Act having its registered office at 17 Jamshedji Tata Road, Bombay 400020 carrying on business at 6 Church Lane Post Box No. 146, Calcutta represented by Navin Kumar, Senior Regional Manager, Ranchi
2. Senior Regional Manager, Hindustan Petroleum Corporation Ltd, Patna Now Ranchi
3. Gupta Service Station carrying on Petroleum business at Jaharia represented by Ashok Kumar Gupta. ....... .....Appellants Vrs.
Sri Dilip Agarwalla ...... Respondent
..............
For the Appellants : M/s Amar Kr. Sinha, Sailendra Kumar Singh & Sandeep Verma, Advs.
For the Resp. : M/s Umesh Pd. Singh, Sr. Adv. & Lukesh Kumar, Adv.
....
PRESENT HON'BLE MR. JUSTICE RAJESH KUMAR C.A. V. on 27/03/2018 Pronounced on 09/04/2018 Heard leaned counsel for the parties.
2. The present Second Appeal is arising out of concurrent findings of both the Courts below.
3. It is the case of the plaintiff that a vacant piece of land having an area 9,000 sq. ft. lease out in favour of the predecessor of the appellants- defendants. Lease was executed for 20 years commencing from 01.05.1965 at monthly rent of Rs. 250/- to be paid on quarterly basis in advance and accordingly a registered agreement was entered into on 17.07.1965 between the plaintiffs and the said Esso Standard Eastern Inc Agency. The said agreement had expired on 01.05.1985. As there was a renewal clause, the appellants-defendants have exercised their option for renewal. As per the terms of agreement that could have been renewed for 10 years, as such, at best the agreement will survive till the year 1995.
4. The case of the plaintiff-respondent is that defendants - appellants have failed to pay rent for the period May, 1985 to October, 1985 and accordingly, notice on 07.12.1985 was given to the defendants - appellants duly received by them and replied through letter dated 06.02.1986. Plaintiff-respondent had replied the same vide letter dated 06.02.1986 on the same day.
5. Since the appellants-defendants has made default in payment of -2- rent and accordingly, the Title (Eviction) Suit No. 13 of 1986 has been filed for vacating the suit premises on the ground of default in payment of rent. Defendants had appeared and filed their written statement taking one of plea that the suit is bad for non-issuance of notice under Section 106 of the Transfer of Property Act, 1882.
6. Learned Court below has framed the issues regarding relationship of landlord and tenant and further default in payment of monthly rent as alleged.
7. On both issues, both the Courts below have returned the concurrent finding by holding therein that relationship of landlord and tenant exist between the parties and appellants-defendants have defaulted in payment of rent from May, 1985 to October, 1985. On the basis of said findings, the suit has been decreed in favour of the plaintiff-respondent and the Appellate Court also confirmed the judgment and decree passed by the learned Trial Court.
8. The present Second Appeal has been admitted on the following substantial question of law:-
" The land in question belonging to the plaintiff-respondent which is admittedly the vacant land, the instant title suit under the provision of B. B. C. Act is maintainable or not ?"
9. Learned senior counsel for the respondent-plaintiff has raised the issue that the substantial question of law as framed in the present second appeal is not a substantial question of law at all in view of the judgment rendered by the Apex Court in the case of Syeda Rahimunnisa Vs. Malan Bi (Dead) by Legal Representative and Anr. reported in (2016) 10 SCC 315 and further the present substantial question of law as framed is not borne out from the fact of the present case.
10. Learned counsel for the appellant, on the other hand, has submitted that the substantial question of law framed herein is proper. It is settled law that for vacant piece of land, Bihar Buildings (Lease, Rent and Eviction) Control, Act, 1982 (in short BBC Act) is not applicable rather suit is maintainable under Transfer of Property Act, 1882.
11. Coming to the issue on the substantial question of law, relevant para- 25 of the judgment relied by the learned counsel for the respondent- plaintiff in the case of Syeda Rahimunnisa (Supra) are quoted hereinbelow:-
"25. A three-Judge Bench of this Court in Santosh Hazari v. Purushottam Tiwari speaking through R.C. Lahoti, J. (as his -3- Lordship then was) examined the scope of Section 100 CPC in detail and laid down the following propositions in paras 9, 10, 12 and 14 as under: (SCC pp. 185-88) "9. The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty cast on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the Code. (See Kshitish Chandra Purkait v. Santosh Kumar Purkait, Panchugopal Barua v. Umesh Chandra Goswami and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar.)
10. At the very outset we may point out that the memo of second appeal filed by the appellant-plaintiff before the High Court suffered from a serious infirmity. Section 100 of the Code, as amended in 1976, restricts the jurisdiction of the High Court to hear a second appeal only on "substantial question of law involved in the case". An obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the High Court. The High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. Such questions or question may be the one proposed by the appellant or may be any other question which though not proposed by the appellant yet in the opinion of the High Court arises as involved in the case and is substantial in nature. At the hearing of the appeal, the scope of hearing is circumscribed by the question so formulated by the High Court. The respondent is at liberty to show that the question formulated by the High Court was not involved in the case. In spite of a substantial question of law determining the scope of hearing of second appeal having been formulated by the High Court, its power to hear the appeal on any other substantial question of law, not earlier formulated by it, is not taken away subject to the twin conditions being satisfied: (i) the High Court feels satisfied that the case involves such question, and (ii) the High Court records reasons for its such satisfaction.
* * *
12. The phrase "substantial question of law", as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying "question of law", means -- of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with -- technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta, the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 110 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Chunilal V. -4- Mehta & Sons Ltd. v. Century Spg. and Mfg. Co. Ltd. the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju: (Chunilal V. Mehta case, AIR p. 1318, para 5) '5. ... when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law.' And laid down the following test as proper test, for determining whether a question of law raised in the case is substantial: (AIR p. 1318, para 6) '6. ... The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.' * * *
14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."
12. The Apex Court has clearly declared the law to the effect that the question of law already decided by the Court or if two views are not possible then, it is not a substantial question of law.
-5-13. The present substantial question of law formulated cannot have two views. The law is clear that the vacant piece of land is not covered under the definition of building and accordingly, BBC Act is not applicable. Even learned counsel for the appellants-defendants does not dispute this preposition of law rather this preposition of law is well settled by the Hon'ble Division Bench and by the Highest Court and there is no requirement to reexamine the issue.
14. So far as the present proceeding is concerned, it is admitted position by both parties that learned Trial Court has jurisdiction to entertain the suit, be territorial, pecuniary and subject matter. The present dispute has been raised regarding the subject matter. Learned Trial Court has jurisdiction to entertain the suit under both law i.e. Transfer of Property Act, 1882 and BBC Act. The suit has proceeded in accordance with the provisions of Code of Civil Procedure. Documentary and oral evidence has been laid by both the parties, which are as follows:-
"5. In support of their case the plaintiff/respondent had examined Dilip Agarwal as P. W. 1.
6. Besides the oral evidence of this witness the plaintiff has got exhibited following documents:-
Ext. '1' : Duplicate copy of lease deed NO. 12197 dated 17.7.1965.
Ext. '2' : letter dated 15.7.1975.
Ext. '3' :Certified copy of letter dated 7.12.1985. Ext. '4' to '4/b' : postal receipts.
Ext. '5' :letter dated 14.1.1986.
Ext. '6', :Registered A/D dated 6.2.1986.
Ext '6/A' to '6/B': Registered slips.
To support their case the defendants have examined Hari Niwas Prasad as D. W. 1 and also produced following documents for marking exhibits as under.
Ext. 'A' :under certificate of posting dated 24.7.85. Ext. 'B', :Registered A/D dated 14.1.86, Ext. 'C': Registered Slip, Ext. 'D': Original letter dated 6.2.1986, Ext. 'E' to 'E/3' Money Order coupons."
15. The lease agreement, Ext-1, the relevant clause 4(d) is quoted hereinbelow:-
"(d) If any rent shall be 60 days in arrear (whether legally demanded or not) or if the tenant shall omit to perform or observe and covenant or condition on the part of the tenant herein contained and shall continue for 30 days after notice thereof to the tenant the landlord may re-enter forthwith upon the demised premises or upon any part thereof in the name of whole and the tenancy shall thereupon determine but without prejudice to any claim which either of the parties hereto may have against the other in respect of any breach, non-performance of any of the covenant and conditions herein contained."-6-
16. The Appellants/defendants failed to pay rent for the period May, 1985 to October, 1985 and accordingly, notice had been given by the respondent-plaintiff vide letter dated 07.12.1985, which was duly received by the appellants-defendants, which is exhibited as Annexure- 4 to 4/b and also Ext.-C where it has been admitted and the appellants- defendants has replied vide letter dated 14.01.1986 reiterating its stand. Ext. 3 and 5 are quoted hereinbelow:-
"Registered A/D Dated 07/12/1985
To,
The Sr. Regional Manager,
Hindustan Petroleum Corporation Limited, Boring Canal Road, Post Box No. 40 Patna- 800001 Sub- Renewal of lease of H.P. Petrol pump site situated at Jharia, mouza, Jharia, Khas, Parganas & P.S. Jharia, Khewat No. 1 in Sub-Registration District-Dhanbad in the district of Dhanbad, State- Bihar Admeasuring-9000 Sft. Ref- Your letter No. PKG/0Ps dated 23rd April, 1984 and cheque No. 007285 dated 01.11.1985 for Rs. 750.00 towards rent of Gupta S.S. Jharia RPO for the period Nov'85 to January, 1986.
Dear Sir, In reply to your above the lease agreement in question of the Jharia P.P.Site expired on 1st May, 1985 and you exercised your option of renewal in time as such I have nothing to say in the matter.
Rent for the month of April'85 was received on 25.04.1985. Two days back I have received your cheque for Rs.750.00 rent for the period November, 1985 to January, 1986. In between the period of May, 1985 to October, 1985 i.e. six months I have not received any rent from you nor heard anything further in the matter.
Since you have defaulted and failed to pay your rent regularly, as stipulated, you have made yourselves defaulter and I request you to vacate the site in question and handover vacant position thereof within 30 days from the date of receipt of this letter failing which you will also make yourselves liable for damages for the period of unauthorized occupation and you will be held responsible, all costs and consequence.
Your above cheque is returned herewith.
Yours faithfully (Sd/- Prabhash Agarwalla) Cc to : General Manager, H.P. Corp. Ltd.
17, Jamshedji Tata Rd.
P.B. No. 11041
Bombay 400020
REF: RD/RET January 14, 1986
REGISTERED A/D POST
SHRI. PRABHAS AGARWALLA
POST: JHARIA
DIST: DHANBAD
PIN: 828111
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Dear Sir,
Rental payment for Retain Outlet site at Jharia operated by Gupta Service Stn.
We are in receipt of your letter No. Nil dated 07.12.1985.
We have no doubt sent the rental payment for the month of November, 1985 to January, 1986 as usual by cheque for a sum of Rs. 750/-. We are however surprised to hear from you that you have not received the rental payment for the period May, 1985 to October, 1985, which please note was sent by us in time. Since you have not received the cheques for the aforesaid months, we have once again sent the payments to you. We are in the meantime looking into the matter as to what happened to the lost cheques.
We assume that it is not a case of default as we have been regularly sending you the rental cheques in time. Hence, we request not to complicate the matter by draw this to the Court of law.
We look forward to your usual co-operation in the matter.
Thanking you,
17. Thus from the contents of Exhibits, it appears that 30 days notice was given to the appellants-defendants, which is requirement under Section 106 of the Transfer of Property Act, 1882. Default in payment of rent is the ground for eviction under the BBC Act but in the present case, the matter is covered under Section 111(g) of the Transfer of Property Act, 1882, which is quoted hereinbelow:-
"111. Determination of lease- A lease of immoveable property determines-
(a) by efflux of the time limited thereby;
(b) where such time is limited conditionally on the happening of some event- by the happening of such event;
(c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event- by the happening of such event;
(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right;
(e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them;
(f) by implied surrender;
(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter [****]; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself;
[or (3)the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event]; and in [any of these cases] the lessor or his transferee [gives notice in writing to the lessee of] his intention to determine the lease;
(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly -8- given by one party to the other."
18. From conjoint reading of Section 111(g) of the Transfer of Property Act, 1882 and terms of lease as quoted hereinabove, it is clear that default in payment of rent is a ground for evicting lessee from the suit land as per the terms of lease. For eviction from suit land, 30 days notice was contemplated in the agreement that has also been complied by the plaintiff-respondent.
19. Counsel for the appellants-defendants could not point out any reason or logic wherein it can be held that both the Courts below has granted relief under the BBC Act and not under the Transfer of Property Act, 1882.
20. In view of the above discussion, this Court finds no merit in the present Second Appeal, as substantial question of law framed herein is not a substantial question of law being settled principle of law and also for reason that no two opinion is possible. Even if it is held that it is a substantial question of law, in that case no factual foundation is there to support the contention of the appellants-defendants.
21. Accordingly, the present Second Appeal is dismissed.
(Rajesh Kumar, J.) Jharkhand High Court, Ranchi Dated 09./04.2018 Kamlesh/AFR