Rajasthan High Court - Jodhpur
Bharat Petroleum Corporation Limited vs Mangilal on 19 August, 2020
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Second Appeal No. 62/2020
Bharat Petroleum Corporation Limited, Bharat Bhawan, 4 And 6
Currimbhoy Road Ballard Estate, Mumbai 38 Through Its
Secretary.
----Appellant
Versus
1. Mangilal S/o Late Sh. Tejkaran, R/o Phalodi , District
Jodhpur.
2. M/s Ratan Filing Station, Phalodi Through Its Director
Ramesh Chandra S/o Ratan Chandra Bachawat, R/o
Phalodi.
3. Jayprakash S/o Lt. Tejkaran Thaanvi, R/o Phalodi
4. Shantilal, R/o Phalodi
5. Shakuntla D/o Late Tejkaran Thaanvi, R/o Phalodi
(Deleted)
6. Ashoka D/o Late Tejkaran Thaanvi, R/o Phalodi
7. Uma D/o Late Tejkaran Thaanvi, R/o Phalodi
8. Durga D/o Late Tejkaran Thaanvi, R/o Phalodi
9. Shaanti W/o Late Tejkaran Thaanvi, R/o Phalodi (Deleted)
----Respondents
For Appellant(s) : Mr. Vinay Kothari.
Mr. Pradeep Singh Khichi.
For Respondent(s) : Mr. R.K.Thanvi, Sr. Adv. assisted by
Mr. Narendra Thanvi &
Mr. Mahendra Thanvi.
HON'BLE MR. JUSTICE ARUN BHANSALI
Judgment 19/08/2020 This second appeal under Section 100 CPC is directed against the judgment and decree dated 11/2/2013 passed by Civil Judge (Sr. Div.), Phalodi and judgment & decree dated 21/9/2019 passed (Downloaded on 19/08/2020 at 08:37:58 PM) (2 of 14) [CSA-62/2020] by Addl. District Judge, Phalodi District, Jodhpur, whereby, the suit filed by the respondent no.1 - plaintiff has been decreed and first appeal filed by the appellant has been rejected.
The respondent no.1 filed a suit for eviction, recovery of arrears and mesne profit qua the premises situated opposite Railway Station, Phalodi on 27/4/1998 with the averments that the property in question belonging to the plaintiff and defendant nos. 3 to 9 originally belonged to the plaintiff's grand father - Aidan Thanvi, which has been let out to various tenants. Aidan Thanvi executed a Will dated 21/10/1974 in favour of Tej Karan Thanvi, father of the plaintiff; Aidan Thanvi died on 30/3/1977 and Tej Karan died on 20/9/1986 and, therefore, the plaintiff and defendant nos. 3 to 9 being legal representatives and heirs of deceased Tej Karan are owners of the suit premises. The suit premises were let out by Aidan Thanvi vide lease deed dated 1/7/1968 for a period of 15 years to Burmah Shell Oil Storage and Distribution Company of India Limited at Rs. 135/- p.m. as lease rent. The area of the leased premises is 10,000 sq. ft. The lessee was first converted into Burmah Shell Refinery Limited and ultimately as Bharat Petroleum Corporation Limited. It was alleged that the period of lease expired on 30/6/1983 and the defendant Corporation is in possession as tenant by sufferance. Allegations were made pertaining to material alterations having been affected at the suit premises and, therefore, by notice dated 16/12/1997 the tenancy was terminated w.e.f. 31/1/1998 and the Corporation was required to pay the outstanding lease rent and handover the vacant possession of the premises. The respondents no. 3 to 9 were impleaded being necessary parties, however, no relief was (Downloaded on 19/08/2020 at 08:37:58 PM) (3 of 14) [CSA-62/2020] being sought against them. The suit was filed on the grounds of default in payment of rent, reasonable and bonafide requirement of the premises and material alteration without consent.
The appellant-defendant filed written statement disputing the fact of Will dated 21/10/1974 executed by Aidan Thanvi; ownership of plaintiff and defendants no. 3 to 9 of the suit premises after the death of Tej Karan. It was indicated that after the death of Tej Karan, for a period of 20 years none claimed himself to be the legal representative of Aidan and did not seek lease rent. The defendant was ready and willing to pay the lease rent and defendant no.2 is the licensee of defendant no.1. It was submitted that the claim of rent was barred by limitation and the defendant was prepared to deposit the due rent within limitation. The provisions of Rajasthan Premises (Control of Rent & Eviction) Act, 1950 ('the Act, 1950') are not applicable and the suit was liable to be dismissed.
The trial court framed 13 issues on the pleadings of the parties. On behalf of the plaintiff four witnesses were examined and six documents were exhibited. On behalf of the defendants three witnesses were examined.
After hearing the parties, the trial court came to the conclusion that as the landlord tenant relationship between Aidan Thanvi and Corporation is admitted, in view of the Will executed by Aidan Thanvi in favour of Tej Karan Thanvi, plaintiff and defendants no.3 to 9 being legal representatives of Tej Karan Thanvi, they are landlord of the premises and defendant no.1 Corporation is tenant, the lessor lessee relationship between the parties has come to an end at the end of 15 years inasmuch as (Downloaded on 19/08/2020 at 08:37:58 PM) (4 of 14) [CSA-62/2020] even under the provisions of Section 5(2) of the Burmah Shell (Acquisition of Undertakings in India) Act, 1976 ('the Act, 1976'), no proposal for renewal / extension of the lease deed was sent. It was found that the Corporation has not paid rent since 1977 and, therefore, it has defaulted in payment of rent and the plaintiff was entitled to the amount of arrears of rent and mesne profit. It was found that the suit premises was reasonably and bonafidely required by the landlord, partial eviction was not possible, probate of the Will was not necessary in view of provisions of Section 57
(a) & (b) of the Indian Succession Act, 1925 ('the Act, 1925'). The additional submissions made in the written statement were not tenable and the suit was maintainable. There was no necessity to seek declaration of title, the suit was not barred under Order II Rule 2 CPC, comparatively more hardship would be caused to the landlord if the premises were not vacated, the tenant has materially altered the premises without permission from the landlord.
Based on the said findings and further finding that the provisional rent under Section 13 (4) of the Act, 1950 was determined on 8/2/1999 and it was required of the defendant to deposit the same month by month, however, rent for the period 1/2/2002 to 31/3/2003 and 1/2/2004 to 31/1/2005 has not been deposited, therefore, based on default in payment of rent, material alteration and reasonable & bonafide requirement, the suit for eviction was decreed along with arrears of rent and mesne profit.
Feeling aggrieved, the appellant filed first appeal. The first appellate court after hearing the parties, upheld the findings (Downloaded on 19/08/2020 at 08:37:58 PM) (5 of 14) [CSA-62/2020] recorded by the trial court on all the issues and consequently dismissed the first appeal.
Learned counsel for the appellant made submissions that the two courts below were not justified in decreeing the suit filed by the plaintiff and dismissing the appeal filed by the appellant. Though, apparently no submissions were made before the trial court, a plea was raised that in view of proviso to Section 2(2) of the Act, 1950, the said Act was inapplicable and, therefore, the suit was liable to be dismissed as not maintainable. It was emphasized that as the objection in this regard was raised before the trial court in the written statement, an issue in this regard should have been framed and failure whereof has vitiated the impugned judgments passed by the two courts below.
Further submissions were made that in view of the provisions of Section 5(2) of the Act, 1976, the appellant is entitled to renewal of the lease deed on the same terms and conditions on which the lease was held by Burmah Shell immediately before the appointed day and as the said renewal lease deed has not been entered into by the landlord, irrespective of the fact that the original lease deed had expired in the year 1983, and the appellant has been in possession now for over 37 years beyond the original lease period, it is entitled to another renewal and, therefore, the decree passed by the two courts below deserves to be quashed and set aside.
Submissions were also made that once the plaintiff had earlier filed a suit for injunction, not seeking the relief of eviction in the said suit would attract bar of Order II Rule 2 CPC and on that count also the suit was liable to be dismissed and the courts (Downloaded on 19/08/2020 at 08:37:58 PM) (6 of 14) [CSA-62/2020] below were not justified in deciding the issue in this regard against the appellant.
Submissions were made that though apparently the appellant did not deposit the provisional rent during the pendency of the suit for the period 1/2/2002 to 31/3/2003 and 1/2/2004 to 31/1/2005 after the determination was made on 8/2/1999, the trial court could not have passed the decree based on such default as the appellant was entitled to hearing in relation to the cause of not depositing the rent and to seek condonation of delay and failure on that count has resulted in passing of a wrong decree.
It was submitted that though the appellant does not question the bonafide requirement of the landlord, the issue pertaining to partial eviction has been wrongly decided inasmuch as out of large land available to the plaintiff a portion was let out to the appellant and the appellant was willing to give some portion of the said land to the landlord for his requirement, which aspect has not been considered by the two courts below.
Submissions were also made that the finding in relation to the material alteration is perverse as digging in the premises for putting up additional dispensing unit cannot be termed as material alteration.
Another submission was made that the suit was barred by limitation under Article 67 of the Limitation Act, 1963 ('the Act, 1963') inasmuch as the period of lease deed came to an end in 1983 and the suit was filed in the year 1998.
It was prayed that the present appeal gives rise to substantial questions of law and the same be admitted and the decree passed by the two courts below be stayed. (Downloaded on 19/08/2020 at 08:37:58 PM)
(7 of 14) [CSA-62/2020] Reliance was placed on Rahman Jeo Wangnoo vs. Ram Chand & Ors. : AIR 1978 SC 413 and B.P.Khemka Pvt. Ltd. vs. Birendra Kumar Bhowmick & Anr. : (1987) 2 SCC 407.
Learned counsel appearing on caveat vehemently opposed the submissions. It was submitted that the two courts below have recorded concurrent findings of fact on all the three grounds of eviction i.e. default in payment of rent, material alteration and bonafide requirement of the respondent, which findings do not call for any interference in second appeal inasmuch as the appellant has failed to point out any perversity in the said findings.
Submissions were made that out of the three grounds on which the decree has been granted by the trial court and upheld by the first appellate court, in the entire memo of appeal no ground has been raised in relation to the ground of default in payment of rent and material alteration. Further, no substantial question of law on the said aspect has been suggested and as no challenge has been laid on the said two grounds of eviction by the appellant, rest of the arguments inter alia based on partial eviction are meaningless, as even otherwise the bonafide requirement has not been challenged, as conceded by learned counsel for the appellant and, therefore, the appeal deserves to be rejected on this ground alone.
Submissions were made that the grounds now sought to be raised based on alleged inapplicability of provisions of the Act, 1950, the appellant having right for another renewal after 37 years since expiry of original lease period and that the suit was barred by limitation are absolutely baseless and, therefore, the appeal deserves to be dismissed.
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Submissions were also made that the appellant-defendant
failed to produce any documentary evidence in support of submissions sought to be made and the two courts below have meticulously considered the evidence available on record and have correctly decided the issues, which findings do not give rise to any substantial question of law and, therefore, the appeal deserves to be dismissed.
I have considered the submissions made by learned counsel for the parties and have perused the record of the two courts below.
It would be appropriate to quote the substantial questions of law, which in the submissions of the appellant are involved in the present second appeal as per the memo of appeal, which read as under:
"Following substantial questions of law are involved in this second appeal:
(I) Whether in view of s.2(2) Proviso (b) of Rent Premises (Control of Rent and Eviction) Act,1950 and in view of non-applicability of said Act, the learned Courts below have fallen in error to decide \the said suit while provisions of Act of 1950?
(II) Whether the learned Courts below had fallen in error in not framing a very vital issue with regard to maintainability of suit in question and with regard to applicable law i.e. Act of 19050 or Transfer of Property Act, 1882?
(III) Whether the learned Courts below erred in not reading and appreciating the provisions of the Burmah Shell (Acquisition of Undertakings in India) Act, 1976 read alongwith notice dtd.6.4.1983 by virtue of which the lease should have been deemed to be extended?
(IV) Whether the lease of property in question would be termed to be extended in terms of concept of 'holding over' as defined under TP Act or would the tenant be a tenant at sufferance?
(V) Whether the plaintiff could prove his bonafide necessity beyond reasonable doubt with regard to land in question and in view of admitted position of additional adequate land being available to suffice for plaintiff's needs?
(VI) Whether the issue of suitably dividing the land in question, so as to meet needs of both parties has been properly adjudicated upon by the learned Court below?"(Downloaded on 19/08/2020 at 08:37:58 PM)
(9 of 14) [CSA-62/2020] In the questions of law suggested, none of the questions pertain to the grounds of default in payment of rent and material alteration. Further in grounds (a) to (j) raised in the memo of appeal, none of the grounds relate to the above two grounds of eviction i.e. default in payment of rent and material alteration. The failure on the part of the appellant to question the validity of the two grounds of eviction concurrently found in favour of the plaintiff and against the appellant, forecloses the appeal itself inasmuch as even if the ground pertaining to partial eviction was to be found in favour of the appellant, the same cannot save the appellant from eviction.
The ground raised pertaining to the non-applicability of the Act, 1950 apparently has no substance. A bare look at the proviso to Section 2(2) of the Act, 1950 reveals that the proviso provides three contingencies in which the Act of 1950 would not be applicable, which inter alia reads as under:
"Provided that nothing in the Act shall apply:-
(a) to any premises belonging to the Central Government or the State Government or a local authority;
(b) to any tenancy or other like relationship created by a grant from the Central Government or the State Government in respect of premises taken on lease or requisitioned by the Government.
(c) to Devasthan premises managed and controlled by the State Government."
This Court in Hindustan Zinc Limited, Udaipur vs. Dr. K.C.Jain : 1985 RLW 461 setting aside the decree passed by trial court, which held that qua Hindustan Zinc Limited, which at the relevant time was a Govt. company, the Act, 1950 would not be applicable, laid down as under:
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(10 of 14) [CSA-62/2020] "8. A bare reading of the provisos makes it abundantly clear that only those premises which belong to the Central Government or the State Government or a Local Authority or the Devasthan premises managed and controlled by the State Government etc. have been exempted from the operation of the Act. Thus, if the premises belong to the Central Government etc. are let out, the exemptions contained in the provisos will at once at attracted and the provisions of the Act will then not apply. But the converse, where a citizen lets out his premises to the Central Government etc. the exemptions contained in the clauses
(a), (b) and (c) of the proviso to section 2(2) of the Act will not be applicable. Therefore, if a suit is brought by a citizen for eviction in respect of his premises, his suit will be governed by the provisions of the Act and eviction then can only take place if he is able to make out and prove any of the grounds of eviction enumerated in section 13 of the Act."
(emphasis supplied) In view of the plain reading of the provisions and the law laid down in the case of Hindustan Zinc (supra), the submissions made in this regard have no substance.
So far as the plea raised by the appellant regarding provisions of Section 5(2) of the Act, 1976 is concerned, the provision inter alia reads as under:
"(2) On the expiry of the term of any lease or tenancy referred to in sub-section (1), such lease or tenancy shall, if so desired by the Central Government, be renewed on the same terms and conditions on which the lease or tenancy was held by Burmah Shell immediately before the appointed day."
A bare look at the provision would reveal that any property held by Burmah Shell under any lease, the Central Government on or from the appointed day shall be deemed to have become the lessee in relation to such property and on expiry of the term of the lease, if so desired by the Central Government, the same is required to be renewed on the same terms and conditions on which the lease was held by Burmah Shell.
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(11 of 14) [CSA-62/2020] Further Section 7(3) of the Act, 1976 provides that provision of sub-section (2) of Section (5) would apply to Government companies as well, as they apply to the Central Government.
Admittedly, the lease commenced w.e.f. 1/7/1968 and the term of the lease was 15 years, which expired in the year 1983 and though it is claimed by the appellant that request for renewal was made, no material is available on record in this regard, as the appellant has failed to produce any document worth the name, even in terms of Section 5(2) read with Section 7(3), the period would have extended for another 15 years, which would have expired in the year 1998. Further, in terms of provisions of Section 111(g) of the Transfer of Property Act, 1882 ('the Act, 1882') the plaintiff gave notice in writing to the appellant of his intention to determine the lease deed by his notice dated 16/12/1997 w.e.f. 31/1/1998, therefore, the plea raised by counsel for the appellant based on the provisions of Section 5(2) of the Act, 1976 has no substance inasmuch as by dint of the said provision, the appellant cannot seek perpetual lease in its favour.
Reference in this regard may be made to the judgment of Hon'ble Supreme Court in State of U.P. & Ors. vs. Lalji Tandon :
(2004) 1 SCC 1.
The submission made that Section 5(2) of the Act, 1976 provides for one renewal and though 37 years have passed since the expiry of original lease deed in the year 1983, the appellant is still entitled under the said provision is absolutely baseless and without any foundation of law and, therefore, rejected.
So far as the plea raised pertaining to Order II Rule 2 CPC is concerned, on account of plaintiff having filed a suit for injunction (Downloaded on 19/08/2020 at 08:37:58 PM) (12 of 14) [CSA-62/2020] and not seeking eviction in the same suit and, therefore, the present suit being barred is concerned, a bare look at the provision of Order II Rule 2 CPC would reveal that if the plaintiff omits to sue for all reliefs to which he is entitled to in respect of 'same cause of action' he shall not afterwards sue for any relief so omitted. The requirement is that the relief must arise from the same cause of action. As already noticed hereinbefore, the previous suit was a simple suit for injunction, which was filed by the plaintiff on account of material alteration being made in the suit property and the cause of action in the present suit is determination of tenancy vide notice dated 16/12/1997 w.e.f. 31/1/1998, therefore, the plea raised in this regard also has no substance.
The plea raised by the appellant regarding the suit being barred by limitation in terms of Article 67 of the Limitation Act has only been noticed for being rejected. The plea on the one hand by the appellant relying on the provisions of Section 5(2) of the Act, 1976 providing for renewal of lease deed and on the other hand claiming that the suit which was filed on 27/4/1998 is barred by limitation is mutually destructive.
Article 67 of the Limitation Act provides for 12 years limitation for a suit by landlord to recover possession from a tenant and time begins to run when the tenancy is determined. Admittedly, the tenancy was determined by notice dated 16/12/1997 w.e.f. 31/1/1998 and the suit has been filed on 27/4/1998 and, therefore, the plea raised in this regard cannot be countenanced. The mere fact that the appellant chose not to make payment since the year 1977 till the provisional rent was (Downloaded on 19/08/2020 at 08:37:58 PM) (13 of 14) [CSA-62/2020] determined by the trial court cannot be termed as determination of the relationship of landlord and tenant between the plaintiff and appellant so as to commence the period of limitation as provided by the Limitation Act. The above ground as raised has been considered and dealt with by this Court de hors the ground raised or question of law suggested by the appellant, as the said aspect is essentially legal.
Though, as noticed hereinbefore, no ground has been raised in the appeal in relation to default in payment of rent, the submission made based on the judgment of Hon'ble Supreme Court in the case of B. P. Khemka (supra) need not detain this Court inasmuch as while the judgment in the case of B.P.Khemka (supra) pertained to the West Bengal Tenancy Act, 1956 by a two judge bench, a three judge bench in Nasiruddin & Ors. vs. Sita Ram Agarwal : (2003) 2 SCC 577 in relation to the provisions of Section 13 (3), (4) and (5) of the Rajsathan Act of 1950, which deals with determination of provisional rent, its deposit during the pendency of the suit and consequences of non-deposit, laid down as under:
"41. In that view of the matter it must be held that in absence of such provisions in the present Act and Court did not have the power to either extend the period to deposit the rent or to condone the default in depositing the rent.
42. Coming to the second question, we are of the view that Section 5 of the Limitation Act, 1963 is not applicable where there is a default in depositing the rent by the tenant under Section 13(4) of the Act."
The judgment in the case of B.P.Khemka (supra) was also noticed and, therefore, in view of the larger bench judgment of Supreme Court in relation to present Act itself, the plea raised has no substance.
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(14 of 14) [CSA-62/2020] The ground raised in relation to partial eviction again with the aid of judgment in the case of Rahman Jeo Wangnoo (supra) apparently has no substance inasmuch as in case of Rahman Jeo (supra) no issue with regard to partial eviction appears to have been framed. In the present case, specific issue no. 6 has been framed by the trial court and based on the material available on record a finding of fact has been recorded regarding partial eviction being not possible, which finding has been upheld by the first appellate court.
As noticed hereinbefore, though a question in relation to bonafide necessity has been suggested in the memo of appeal, learned counsel for the appellant at bar submitted that the same was not being questioned.
In view of the above discussion, it is apparent that out of three grounds of eviction found concurrently by the two courts below, based on which decree of eviction has been passed, while the appellant has no questioned the correctness of two grounds i.e. default in payment of rent and material alteration, the other issues raised pertaining to jurisdiction of the court, provisions of Section 5(2) and 7(3) of the Act, 1976, Order II Rule 2 CPC, the ground of partial eviction and suit being barred by limitation have no substance and, therefore, the judgments impugned do not give rise to any substantial question of law.
In view of the above discussion, there is no substance in the appeal and the same is, therefore, dismissed.
(ARUN BHANSALI),J baweja/-
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