Karnataka High Court
S Gopal Krishna vs Hotel Ajantha Rep By Its Managing on 25 July, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.F.A NO. 120 OF 2008(RES)
C/W
R.F.A NO.262 OF 2008(RES)
IN RFA NO.120/2008
BETWEEN:
M/S HOTEL AJANTHA
REP BY ITS MANAGING PARTNER
A PRABHAKAR(DEAD)
SRI P J BAGILTHAYA
S/O LATE DASAPPAYYA
AGED ABOUT 85 YEARS
MANAGING PARTNER
M/S HOTEL AJANTHA
NO.22, M G ROAD, BANGALORE-1
1. SRI.P.SUBRAMANYA BAGILTHAYA
S/O LATE P.J.BAGILTHAYA
AGED ABOUT 52 YEARS
(AMENDED AS PER COURT ORDER
DATED 12.12.2011)
2. SMT LAKSHMI BAGILTHAYA
W/O SRI P J BAGILTHAYA
AGED ABOUT 76 YEARS
3. SMT SHOBA BAGILTHAYA
W/O SRI SUBRAMANYA BAGILTHAYA
AGED ABOUT 45 YEARS
2
ALL ARE R/AT NO 18, INDIRANAGAR
BANGALORE-560038
4. SMT P SHASHIKALA
W/O SRI A PRABAHAKAR
AGED ABOUT 50 YEARS
R/AT NO 817,17TH 'F' MAIN, I CROSS
6TH BLOCK, KORAMANGALA
BANGALORE-92
...APPELLANTS
(BY SRI.K.SUMAN, SR.COUNSEL FOR
SRI.SIDDARTH SUMAN, ADOVATE)
AND:
SMT KAMALA(DEAD)
W/O V P SUDARSHANAM NAIDU
(BY THEIR LEGAL REPRESENTATIVES & ALSO
THE PLAINTIFFS IN THE TRIAL COURT)
1. SRI S GOPAL KRISHNA
S/O LATE V P SUDARSHANAM NAIDU
A/A 64YRS, R/AT NO 42, LINDEN STREET
AUSTIN TOWN, BANGALORE-47
2. SMT SHANTHI NAIDU
D/O LATE V P SUDARSHANAM NAIDU
A/A 65 YEARS,
R/AT NO 62, UAS LAYOUT, R M V EXTENSION II
BANGALORE-54
3. SMT PREMA NAIDU
D/O LATE V P SUDARSHANAM NAIDU
A/A 57 YEARS, R/AT NO 26, SHAMSEY ROAD
LANGFORD GARDENS, BANGALORE-25
...RESPONDENTS
(BY SRI.K.B.S.MANIAN,ADVOCATE FOR
3
SRI.K M JAGANATH, ADVOCATE)
THIS RFA IS FILED U/S.96 OF CPC AGAINST THE JUDGMENT
AND DECREE DT.23.10.2007 PASSED IN O.S.NO.10786/1995 ON
THE FILE OF THE XXVI ADDL. CITY CIVIL AND SESS. JUDGE, MAYO
HALL UNIT, BANGALORE, DISMISSING THE SUIT FOR EVICTION.
IN RFA NO.262/2008
BETWEEN:
1. S GOPAL KRISHNA
S/O.LATE.V.P.SUDARSHANAM NAIDU,
AGED ABOUT 65 YEARS,
R/AT.NO.42, LINDEN STREET, AUSTIN TOWN,
BANGALORE-47.
2. SHANTI NAIDU
D/O LATE.V.P.SUDARSHANAM NAIDU,
AGED ABOUT 67 YEARS,
R/AT.NO.62, U.A.S.LAYOUT,
BANGALORE-94.
3. PREMA NAIDU
D/O.LATE.V.P.SUDARSHANAM NAIDU,
AGED ABOUT 59 YEARS, R/AT.NO.26,
'SHAUGHNESSY' ROAD, LANGFORD GARDENS,
BANGALORE-25.
...APPELLANTS
(BY SRI.K.B.S.MANIAN, ADVOCATE FOR SRI.K MUNIVENKATAPPA &
SRI.K.M.JAGANATH, ADVOCATES)
AND:
1. HOTEL AJANTHA
REP BY ITS MANAGING PARTNER
A.PRABHAKAR(DEAD)
P.J.BAGILATHAYA
4
S/O LATE.DASAPPAYYA,
AGED ABOUT 86 YEARS,
MANAGING PARTNER HOTEL AJANTHA,
R/AT.NO.22-A, MAHATMA GANDHI ROAD,
BANGALORE-01.
(DELETED VIDE COURT ORDER
DATED 18.01.2010.
SRI.SUBRAMANYA BAGILTHAYA
(SUBSTITUTED VIDE COURT ORDER
DATED 18.01.2010)
2. LAKSHMI BAGILATHAYA
W/O.P.J.BAGILATHAYA,
AGED ABOUT 72 YEARS
3. SHOBHA BAGILATHAYA
W/O SUBRAMANYA BAGILATHAYA
AGED ABOUT 42 YEARS
BOTH R/AT.NO.18, INDIRANAGAR,
BANGALORE-38.
4. P SHASHIKALA
W/O LATE.A.PRABHAKAR,
AGED ABOUT 44 YEARS,
R/AT.NO.817, 17TH 'F' MAIN,
1ST CROSS, VI BLOCK, KORAMANGALA,
BANGALORE-92.
...RESPONDENTS
(BY SRI.K.SUMAN, SR.COUNSEL FOR SRI.SIDDARTH SUMAN,
ADVOCATE FOR R1 TO R3;
SRI.M.MOHAN RAO, ADVOCATE FOR R4)
THIS RFA IS FILED U/S.96 OF CPC AGAINST THE JUDGMENT
AND DECREE DT.23.10.2007 PASSED IN O.S.NO.10786/1995 ON
THE FILE OF THE XXVI ADDL. CITY CIVIL AND SESS. JUDGE, MAYO
HALL UNIT, BANGALORE, DISMISSING THE SUIT FOR EVICTION.
5
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 05.04.2022, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned appeal in RFA.No.262/2008 is filed by the unsuccessful plaintiffs questioning the judgment and decree passed in O.S.No.10786/1995 wherein the Court below has dismissed the suit for ejectment filed by the plaintiffs where as the connected appeal in RFA.No.120/2008 is filed by the defendants questioning the findings recorded by the Trial Court on issue No.5 and additional issue No.2.
2. For the sake of brevity, the parties are referred to as per their rank before the Court below.
3. The facts leading to the case are as under:
The subject matter of the suit is a commercial building bearing Municipal No.22/A situated at M.G.Road. The plaintiffs have instituted the present suit seeking recovery of possession. It is the specific case of the plaintiffs that their 6 father namely Sudarsanam Naidu had a limited right in the suit schedule property. The plaintiffs claim that their grandfather V.Papaiah Naidu bequeathed the suit schedule property thereby creating right, title and interest in favour of the plaintiffs' father namely Sudarsanam Naidu. It is the specific case of the plaintiffs that lease is created by their father Sudarsanam Naidu and his brother V.P.Perumalswamy Naidu for a period of 25 years commencing from 1st day of March 1974 with an option for renewal for a further period of 5 years is illegal. The plaintiffs claim that their father had only life interest and therefore, he could not have created lease during his lifetime. The plaintiffs specifically contended that on account of death of their father V.P.Sudarsanam Naidu, the lease stood determined and therefore, the plaintiffs are entitled to recover possession of the suit schedule property from the defendants. The plaintiffs claim that they have issued a legal notice on 08.03.1994 and 12.02.1995 requesting the defendants to vacate and handover possession.7
The present suit is filed as defendants refused to handover vacant possession.
4. On receipt of summons, the defendant No.1 tendered appearance and filed written statement. The defendant No.1 specifically contended that the present suit is not at all maintainable and if plaintiffs intend to seek possession, they have to take recourse to the provisions of the Karnataka Rent Control Act, 1961. The defendant No.1 also questioned the locus standi of plaintiffs and stoutly denied the averments questioning the lessors authority to lease the property in their favour. The defendant No.1 claimed that suit schedule property is jointly purchased by V.P.Perumalswamy Naidu and V.P.Sudarsanam Naidu, who are the sons of one V.Papaiah Naidu under registered sale deed dated 22.10.1936. The defendant No.1 claimed that they have acquired leasehold rights pursuant to registered lease deed dated 04.03.1974. The period stipulated under the registered lease deed is 25 years which would commence from 04.03.1974. The 8 defendants have also placed reliance on a declaration dated 01.09.1989 given by V.P.Sudarshanam Naidu consenting for further lease. Under the said agreement, defendant No.1 claimed that he is entitled to seek extension of lease by another 25 years. The defendant No.1 also contended that they have improved the suit schedule property by putting up further construction and the suit schedule property is developed by investing huge amount.
5. Questioning the locus of plaintiffs, the defendant No.1 also contended that the present plaintiffs are not the absolute owners of the suit schedule property and therefore, in absence of other co-owners, the present suit is not maintainable and therefore, contended that plaintiffs are not entitled to recover possession for a total period of 55 years commencing from 01.03.1974. The defendants also contended that there is an arbitration clause in the lease deed and on these set of defences, the defendant No.1 sought for dismissal of the suit.
9
6. The defendant Nos.2 to 4 have adopted the written statement filed by the defendant No.1.
7. Based on the rival contentions, the Trial Court formulated the following issues:
"1) Whether the plaintiffs prove that V.P.Sudarsanam Naidu had only life interest in the Suit Schedule Property?
2) Whether the plaintiffs prove that with the death of V.P.Sudarsanam Naidu, the leasehold right in favour of the defendant stands extinguished?
3) Whether the suit of the plaintiffs is barred under Karnataka Rent Control Act, 1963?
4) Whether the defendants prove that the suit property has been purchased jointly by V.Perumalswamy Naidu and Sri V.P.Sudarsanam Naidu?
5) Whether the defendants prove that defendant firm is entitled to continue in view of declaration made on 01.09.1989 by V.P.Sudarsanam Naidu?
6) To what relief parties are entitled?
7) What Order or Decree?
10Additional Issues:
1) Whether plaintiffs are entitled to any mesne profits; if so, at what rate?
2) Whether defendants prove that its lease is extended after the expiry of option period as per declaration of V.P.Sudarsanam Naidu dated 01.09.1989?
3) Whether plaintiffs have properly terminated the tenancy of the defendants?"
8. The plaintiffs to substantiate their claim have let in ocular evidence and have examined plaintiff No.3 as PW.1 and have relied on documentary evidence vide Exs.P-1 to P-13. The defendants to counter the claim of plaintiffs have examined the Managing Partner as DW.1 and one independent witness as DW.2 and have produced documentary evidence vide Exs.D-1 to D-66.
9. The learned Judge having examined the rival contentions has answered issue Nos.1 and 2 in the negative. The learned Judge has come to conclusion that plaintiffs have 11 failed to prove that their father V.P.Sudarsanam Naidu had life interest in the suit schedule property. While answering issue No.2, learned Judge has come to conclusion that plaintiffs have failed to prove that on account of death of V.P.Sudarsanam Naidu, the leasehold rights in favour of defendants stands terminated. While answering issue No.4, the learned Judge has come to conclusion that defendants have succeeded in proving that suit schedule property was jointly purchased by the plaintiffs' father Sudarsanam Naidu and their uncle Perumalswamy Naidu. While examining issue No.5 and additional issue No.2, the learned Judge has recorded a finding that defendants are not entitled to continue based on declaration dated 01.09.1989 alleged to have been made by V.P.Sudarsanam Naidu. On these set of reasonings, the learned Judge has proceeded to dismiss the suit. Questioning the dismissal decree, the plaintiffs have preferred appeal in RFA.No.262/2008 and questioning the findings on 12 issue No.5 and additional issue No.2, the defendants have preferred appeal in RFA.No.120/2008.
10. Learned counsel appearing for the plaintiffs reiterating the grounds urged in the appeal memo would contend that the contention of the defendants that suit is premature is not at all tenable. He would also point out that the finding recorded by the Trial Court on Ex.D-1 which is the alleged agreement executed by V.P.Sudarsanam Naidu thereby agreeing to extend the lease period for a further period of 25 years is not only perverse but contrary to the findings recorded on issue No.5. He would submit that while dealing with issue No.5, learned Judge has rightly held that there is absolutely no evidence that in terms of Ex.D-1, parties have mutually agreed to extend the period. Learned counsel would stress more on the expiry of the lease period. He would contend that even as per the defendants' case, the lease was executed on 04.03.1974 vide Ex.D-2 and therefore, he would contend that the lease period of 25 years and with further 13 extension for 5 years as agreed under the lease deed would expire on 28.02.2004. Therefore, he would contend that the Court below has not taken cognizance of subsequent events.
11. To buttress his arguments, learned counsel has placed reliance on the judgment rendered by the Hon'ble Apex Court in the case of Vithalbhai (P) Ltd. vs. Union Bank of India1. Placing reliance on the principles laid down by the Hon'ble Apex Court cited supra, he would contend that even if a suit is found to be premature, the Court can still mould the reliefs, if no manifest injustice or prejudice is caused to the defendants. Placing reliance on the judgment of the Hon'ble Apex Court rendered in the case of Virgo Industries (Eng.) Private Limited vs. Venturetech Solutions Private Limited2, he would emphasis on the principle that there is no universal rule to dismiss the suit in the event it is found that it is premature unless the question of a suit being premature does not go to the root of the jurisdiction of the Court. He 1 (2005) 4 SCC 315 2 (2013) 1 SCC 625 14 would further place reliance on the judgment rendered in the case of Chennai Sri Ekambaraswarar Devasthanam vs. Dungarchand Narasingji3. Placing reliance on the said judgment, he would contend that it is well within the jurisdiction of this Court to grant appropriate reliefs which would shorten the litigation and avoid multiplicity of litigation. Placing reliance on the said judgment, he would contend that it is permissible under law to mould the relief and allow the ejectment suit.
12. To counter the defence of defendants that all co- owners have not joined in the present suit for ejectment, he has place reliance on the judgment rendered by the Hon'ble Apex Court in the case of India umbrella Manufacturing Co. and Others vs. Bhagabandei Agarwalla (Dead) By Lrs. Savitri Agarwalla (Smt.) and others4. Placing reliance on the dictum rendered by the Apex Court in the judgment cited supra, he would contend that consent of other co-owners 3 1991 SCC Madras 214 4 (2004) 3 SCC 178 15 is assumed as taken unless it is shown that the other co- owners have not consented for ejectment of the tenant and the suit is filed inspite of their objections. Questioning the admissibility of Ex.D-1, he would submit that the said declaration which creates a new lease cannot be looked into as Ex.D-1 creates a new lease and a creation of new lease can be only by way of registered instrument. Therefore, he would contend that mere alleged declaration as per Ex.D-1 cannot supersede the terms of registered document vide Ex.P-2 dated 04.03.1974 wherein lease was created in favour of defendants for a period of 25 years.
13. Learned counsel appearing for the plaintiffs has also brought to the notice of this Court that the subsequent suit filed by defendants in O.S.No.6325/2005 who are claiming that they are the tenants in view of extension of lease under Ex.D-1 is stayed by the Court. He would also take this Court through the orders passed by the Court below on I.A.No.6 in O.S.No.6325/2005. He would conclude his arguments by 16 contending that lease, even otherwise, has expired way back in 2004 and respondents/defendants taking undue advantage of pending litigation are squatting over the suit premises without any semblance of right and therefore, he would request this Court to allow the appeal and consequently direct the defendants to handover vacant possession.
14. Per contra, learned counsel appearing for the defendants repelling the contentions canvassed by the learned counsel appearing for the plaintiffs would reiterate the defence set up by the defendants in the suit. Learned counsel would point out that the present plaintiffs cannot maintain a suit for ejectment without impleading other co-owners. Referring to the recitals in the registered lease deed vide Ex.P-2, he would bring to the notice of this Court that lease was admittedly executed by two brothers and therefore, the present plaintiffs who are the legal heirs of V.P.Sudarsanam Naidu cannot assert absolute title over the suit schedule property and initiate ejectment suit. Referring to the averments made in 17 the plaint, he would submit that plaintiffs are asserting absolute title and in absence of consent by other co-owners, there is no valid termination. Taking this Court through the reply issued by the defendants, he would contend that defendants have amply replied to the legal notice and the plaintiffs are notified that they cannot terminate the lease unilaterally which was created under the registered lease deed for a period of 25 years commencing from 1974. He would also refer to that part of the averments made in the reply notice wherein defendants have also notified the plaintiffs that they are entitled for further renewal after expiry of initial period of 30 years.
15. To buttress his arguments, learned counsel has placed reliance on the Full Bench judgment of the Gujarat High Court rendered in the case of Nanalal Girdharlal and Others vs. Gulamnabi Jamalbhai Motorwala and Others5. Taking this Court through the dictum rendered by the Full Bench of 5 AIR 1973 Guj 131 18 Gujarat High Court, he would contend that in absence of co- owners, the present plaintiffs are not entitled to maintain a suit for recovery of possession. Referring to para 11 of the said judgment, he would contend that the present plaintiffs are precluded from claiming that they are the exclusive owners of the lease property and therefore, the present quit notice issued by the plaintiffs asserting absolute title is therefore not sufficient to determine the lease. It is in this background, he would vehemently argue and contend before this Court that there is no valid termination and therefore, the ejectment suit is not at all maintainable.
16. To counter the claim made by the plaintiffs in the light of the principles laid down by the Hon'ble Apex Court in the case of India Umbrella Manufacturing Co. (supra), he would point out that the principles laid down by the Apex Court in the judgment cited supra are not at all applicable to the present case on hand. Referring to para 6 of the very same judgment, he would contend that the concept of implied 19 agency cannot be applied to the present case. Referring to the facts of this case, he would contend that in the said case, the suit was filed by two co-owners and one co-owner sold his portion and therefore, it was an eviction under the Rent Act. The principles laid down by the Hon'ble Apex Court in the judgment cited supra are not at all applicable to the present case on hand as the facts are totally different.
17. He would counter the contentions of plaintiffs by placing reliance on the judgment rendered by the Hon'ble Apex Court in the case of Sri Ram Pasricha vs. Jagannath and Others6. Taking this Court through para 20 of the said judgment, he would contend that the action that can be brought in against a tenant seeking eviction is permissible provided such an action is taken by all co-owners and therefore, he would contend that plaintiffs are estopped from asserting absolute title and therefore, he would contend that there is no locus standi to unilaterally terminate the lease. He 6 AIR 1976 SC 2335 20 would conclude his arguments by contending that the subsequent developments on the ground of expiry of lease period cannot be considered.
18. Heard learned Senior Counsel appearing for the plaintiffs and learned counsel appearing for the defendants. Perused the pleadings as well as ocular and documentary evidence. The following points would arise for consideration:
1) Whether the finding of the Trial Court that lease hold rights in favour of defendants created under the registered lease deed dated 04.03.1974 for a period of 25 years will not extinguish is palpably erroneous?
2) Whether the finding of the Trial Court that defendants have failed to prove that the lease created under Ex.P-2 is extended in terms of declaration dated 01.09.1989 given by plaintiffs father namely V.P.Sudarsanam Naidu is palpably erroneous?
3) Whether the plaintiffs are entitled for a decree for possession on account of expiry of lease period under Ex.P-2?21
Re: Point No.1:
19. It is the specific case of the plaintiffs that their father namely V.P.Sudarsanam Naidu has executed a registered lease deed dated 04.03.1974. The execution of registered lease deed in favour of defendants is not in dispute. However, plaintiffs have raised a contention in the plaint that their father had only life interest and therefore, have come up with the present suit by contending that on account of death of their father V.P.Sudarsanam Naidu who died on 16.12.1992 would ultimately determine the lease and the lease created under Ex.P-2 in favour of defendants stands terminated and therefore, the plaintiffs contend that they are entitled to seek possession. To substantiate their claim that their father had only life interest, no documents are produced. Even if Sudarsanam Naidu had only life interest in the property in question, the death would not determine the lease in the present case on hand as leasehold rights are created under the registered lease deed and the period fixed under lease 22 deed is 25 years with an option to seek extension for a further period of 5 years. Therefore, the present plaintiffs who are claiming to be the legal heirs of V.P.Sudarsanam Naidu are bound by the terms and recitals in the registered lease deed vide Ex.P-2. Therefore, the findings recorded by the Trial Court while answering issue Nos.1 and 2 is in accordance with law and therefore, would not warrant any interference at the hands of this Court. Accordingly, point No.1 formulated by this Court is answered in the negative.
Re: Point No.2:
20. The defendants are relying on Ex.D-3 which is alleged to have been written by the plaintiffs father who has agreed to consider extension of lease period for a further period of 25 years. This letter is dated 24.05.1989. The defendants claim that they are entitled for a further extension of 25 years and therefore, have placed reliance on the declaration alleged to have been given by the father of the plaintiffs vide Ex.D-1 which is dated 01.09.1989. It would be 23 useful to refer to the said documents and the same is culled out as under:
"DECLARATION I, V.P.Sudarshana Naidu, S/o. Late Papiah Naidu aged 85 years residing at 42, Lynton Street, Austin Town, Bangalore-560 047 do hereby solemnly declare that, I have leased my property in No. 22-A, M.G. Road, now called Hotel Ajanta to the Partners of Hotel Ajanta for a period of 25 years and few years of lease period is left. I have been given to understand that the B.D.A. has ordered to credit a large amount as Betterment Fee for granting of permission for change of Land use for construction of commercial building in Hotel Ajantha premises. The Partners of Hotel Ajantha represented that the lease period left over is too short as such their investing over the property may not be economical unless the lease period is agreed to be extended. Hence after considering all the aspects, and in view of the fact that the said land is not required for the use of our family, I hereby agree, promise and declare that the present lease hold rights shall be extended after the expiry for a further period of minimum Twenty Five Years on reasonable rent to be fixed after mutual discussions. The Partners are requested to take up the development of the property on this assurance if necessary by approaching the financial institutions for loans. This option to continue the lease is not revocable.
All what is stated above is True.
Sd/-
(DECLARANT) Place: Bangalore Date: 01-09-1989"24
21. It would be also useful for this Court to refer to the letter dated 24.05.1989 at Ex.D-3 written by plaintiffs father addressed to the defendants. The same is culled out as under:
"BANGALORE, Date: 24th May, 1989 From, V.P.Sudarshana Naidu, No.42, Lynton Street, Austin Town, Bangalore - 560047.
To, The Partner, Hotel Ajantha, No.22-A, M.G.Road, Bangalore-560001.
Dear Sir, I have seen the orders of Commissioner, B.D.A., requiring to deposit of Rs. 39,180/- as betterment fee for the grant of permission for change of land use for construction of commercial building in Ajantha premises. I request that the amount may be paid and conversion orders obtained. Since you say that the remaining lease period is only for a short period and it will not be economical for you to invest, I hereby agree that the extension of lease period will be considered on mutual discussion at reasonable rent and we have no objection for continuance of the lease for some more period, as may be necessary to make the project economical for a period not less than 25 years.
Thanking you, 25 Yours faithfully, Sd/-
(V.P.Sudarshana Naidu)"
22. Now the question that needs to be examined by this Court is whether defendants can assert leasehold rights by placing reliance on Exs.D-1 and D-3. My answer in No. It is not in dispute that the defendants acquired leasehold rights under Ex.P-2 which is a registered lease deed dated 04.03.1974 as per Ex.P-2. The defendants now contend that there is an extension of lease for a further period of 25 years on the basis of alleged declaration vide Ex.D-1. This Court is of the view that the said declaration and letter would not in itself create any right in favour of defendants. In order to give effect to the renewal of lease agreement, there has to be a registered document. Therefore, I find some force in the submission made by the learned counsel for the plaintiffs. As rightly pointed out by the learned counsel appearing for the plaintiffs, a grant of renewal is a fresh grant and therefore, the 26 lessee cannot claim extension of lease on the basis of declaration which is sought to be written on a plain paper. Such a declaration would not in itself create a fresh leasehold rights nor would renew the existing leasehold rights. The judgment cited by the learned counsel for the plaintiffs in the case of Hardesh Ores (P) Ltd. vs. Hede and Company7, the judgment rendered by the Hon'ble Apex Court in the case of Sri Ram Builders vs. State of Madhya Pradesh and Others8 as well as the judgment rendered in the case of State of U.P. and Others vs. Lalji Tandon (Dead) Through LRs.9 are squarely applicable to the present case on hand.
23. Therefore, on meticulous examination of the covenants under the alleged declaration vide Ex.D-1 and the letter written by plaintiff's father vide Ex.D-3, this Court is of the view that the declaration is not an extension of lease. As 7 (2007) 5 SCC 614 8 (2014) 14 SCC 102 9 (2004) 1 SCC 1 27 rightly pointed out by the learned counsel for the plaintiffs, declaration vide Ex.D-1 and the letter correspondence vide Ex.D-3 at the most can be taken as a promise to extend the lease. In law, the said two documents vide Exs.D-1 and D-3 do not create any new lease. A new lease can be created only by way of registered instrument. A mere declaration in no way can extend the lease for a further period of 25 years as claimed by the defendants. Therefore, the finding recorded by the Trial Court on issue No.5 and additional issue No.2 is in accordance with law and the said findings does not warrant any interference at the hands of this Court. Accordingly, point No.2 is answered in the negative.
Re: Point No.3:
24. Learned Senior Counsel appearing for the defendants has set up a defence that suit for ejectment is a premature suit and therefore, same is not maintainable as the lease under Ex.P-2 which stipulates a period of 25 years clearly demonstrates that suit is premature and therefore, 28 same is liable to be dismissed. This defence is countered by learned counsel appearing for the plaintiffs. He has placed reliance on the judgment rendered by the Hon'ble Apex Court in the case of Raghbinder Singh vs. Bant Kaur and Others10. Placing reliance on the judgment rendered by the Hon'ble Apex Court, he would contend that in a case where question of suit being premature does not go to the root of the jurisdiction of the Court, the Court is required to examine whether any irreparable prejudice is caused to the defendant on account of such suit. Learned counsel for the plaintiffs has placed reliance on para 22 of the judgment rendered in the case of Vithalbhai (P) Ltd. (supra), which reads as under:
"22. We may now briefly sum up the correct position of law which is as follows:
A suit of a civil nature disclosing a cause of action even if filed before the date on which the plaintiff became actually entitled to sue and claim the relief founded on such cause of action is not to be necessarily dismissed for such reason. The question of suit being premature does not go to the root of jurisdiction of the court; the court entertaining such a suit and passing decree therein is not acting without jurisdiction but it is in the judicial 10 (2011) 1 SCC 106 29 discretion of the court to grant decree or not. The court would examine whether any irreparable prejudice was caused to the defendant on account of the suit having been filed a little before the date on which the plaintiff's entitlement to relief became due and whether by granting the relief in such suit a manifest injustice would be caused to the defendant. Taking into consideration the explanation offered by the plaintiff for filing the suit before the date of maturity of cause of action, the court may deny the plaintiff his costs or may make such other order adjusting equities and satisfying the ends of justice as it may deem fit in its discretion. The conduct of the parties and unmerited advantage to the plaintiff or disadvantage amounting to prejudice to the defendant, if any, would be relevant factors. A plea as to non maintainability of the suit on the ground of its being premature should be promptly raised by the defendant and pressed for decision. It will equally be the responsibility of the court to examine and promptly dispose of such a plea. The plea may not be permitted to be raised at a belated stage of the suit. However, the court shall not exercise its discretion in favour of decreeing a premature suit in the following cases: (i) when there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event; (ii) when the institution of the suit before the lapse of a particular time or occurrence of a particular event would have the effect of defeating a public policy or public purpose; (iii) if such premature institution renders the presentation itself patently void and the invalidity is incurable such as when it goes to the root of the court's jurisdiction; and (iv) where the lis is not confined to parties alone and affects and involves persons other than those arrayed as parties, such as in an election petition which affects and involves the entire constituency. (See Samar Singh v. Kedar Nath 13.) One more category of suits which may be added to the above, is: where leave of the court or some authority is 30 mandatorily required to be obtained before the institution of the suit and was not so obtained."
25. Therefore, the principles enumerated in the above cited judgment clearly indicates that even if suit for ejectment is filed before the date on which the plaintiffs entitlement to relief becomes due, the Court is still vested with jurisdiction to decide the lis between the parties and grant appropriate relief. On examination of the dictum laid down by the Hon'ble Apex Court, what emerges is that if suit is premature, if it does not go to the root of the jurisdiction of the Court, the Court is vested with judicial discretion to grant decree. However, the Court is required to examine whether any irreparable prejudice would be caused to the defendant on account of the suit having been filed a little before the date on which the plaintiff's entitlement to relief became due. The Court has to also examine whether by granting the relief in such suit, the manifest injustice would be caused to the defendant. The Court has to also examine the conduct of the parties and 31 unmerited advantage to the defendant if the suit were to be dismissed only on that count.
26. As contended by the defendants before this Court, the Court shall not exercise discretion in favour of decreeing a premature suit in the following cases:
(i) when there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event;
(ii) when the institution of the suit before the lapse of a particular time or occurrence of a particular event would have the effect of defeating a public policy or public purpose;
(iii) if such premature institution renders the presentation itself patently void and the invalidity is incurable such as when it goes to the root of the court's jurisdiction; and
(iv) where the lis is not confined to parties alone and affects and involves persons other than those arrayed as parties.32
27. If these principles are examined, this Court would find that none of the ingredients cited supra are found in the present case on hand. Though plaintiffs were not justified in filing a recovery suit ignoring the recitals in Ex.P-2 which is a registered lease deed creating lease for a period of 25 years which commences from 04.03.1974 and the lease was to expire on 01.03.1999, the quit notice on 02.02.1995 could not have determined the lease. Obviously, the suit which was filed on 09.08.1995 was a premature suit. Though the suit was found to be prematurely instituted by the landlord seeking ejectment but from the records what emerges is defendants succeeded in squatting over the property even after expiry of lease; the lease has expired on 01.03.1999. We are in 2022. Therefore, the principles laid down by the Hon'ble Apex Court in the judgment cited supra are squarely applicable to the present case on hand. By instituting a premature suit, the plaintiffs have in fact created a scenario which has virtually enabled the defendants to use the suit schedule premises for 33 which purpose it was leased. The defendants have continued to carry out their business even after expiry of lease. Therefore, no prejudice is caused to the defendants. On the contrary, manifest injustice is meted out to the plaintiffs on account of one wrong move at the instance of the plaintiffs in filing a premature ejectment suit.
28. Therefore, at this juncture, if the plea/defence set up by defendants is accepted, it would clearly amount to abuse of process. The lease in favour of defendants stood determined in the year 1999. Therefore, this Court is of the view that merely because ejectment suit was a premature suit, that does not go to the root of the jurisdiction of the Court and therefore, the Court entertaining such a suit and passing decree therein is not acting without jurisdiction. The conduct of the parties and unmerited advantage to the defendants has to be taken note of by this Court. Therefore, having regard to the facts and circumstances of the case, this Court is bound to exercise judicial discretion in granting a 34 decree for eviction in favour of the plaintiffs. If the suit was premature as on the date of filing of the suit but, however, pending consideration of suit, if the lease period has expired, the suit though may be termed as 'premature', yet, cannot per se be dismissed to be presented on a future date. There is no universal rule to the above effect. The Court must weigh and balance several competing factors that are required to be considered including the question as to whether any useful purpose would be served by dismissing the suit as premature.
29. It is in this background, this Court is not inclined to accept the defence set up by the defendants. Respect for law is one of the cardinal principle for effective operation of the constitution law. The principle of justice is ingrained in our conscience and faith of the people in efficacy of judicial process needs to be sustained. Therefore, to do substantial justice, it is the primary duty and highest responsibility of the Court to advance substantial justice in favour of deserving 35 litigants. Accordingly, point No.3 is answered in the affirmative.
30. For the reasons stated supra, I pass the following:
ORDER
i) The appeal filed by the plaintiffs in RFA.No.262/2008 is allowed whereas the appeal filed by the defendants in RFA.No.120/2008 is dismissed. Consequently, suit is decreed with cost;
ii) The plaintiffs are entitled for damages from 01.03.1999 till handing over of vacant possession.
Sd/-
JUDGE CA