Allahabad High Court
Hindustran Petroleum Corporation vs Satish Chandra Jain And Others on 31 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 1892, 2020 (1) ALJ 578, (2020) 138 ALL LR 822, (2020) 2 ADJ 676 (ALL)
Author: Jayant Banerji
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 53 Case :- SECOND APPEAL No. - 881 of 2006 Appellant :- Hindustran Petroleum Corporation Respondent :- Satish Chandra Jain And Others Counsel for Appellant :- Vikas Budhwar Counsel for Respondent :- Pankaj Agarwal Hon'ble Jayant Banerji,J.
This second appeal has been filed by the defendant-appellant against the judgement and decree dated 1.8.2006, passed by the Additional District Judge, Court No. 6, Bareilly in Civil Appeal No. 222 of 1998 arising out of O.S. No. 203 of 1988 from the Court of Additional Civil Judge (Senior Division), Bareilly.
In this appeal the following substantial questions of law were framed:
"A. Whether in the facts and circumstances of the case the trial court was justified in striking off the defence of the defendant under Order 15 Rule 5 CPC?
B. Whether by a composite order the court could have struck off the defence under Order 15 Rule 5 CPC and simultaneously decree the suit either under Order 15 Rule 1 or Order 12 Rule 6 CPC?
C. Whether after framing as many as 13 contentious issues including the availability of the protection of U.P. Act No. 13 of 1972 to the defendant, as well as the jurisdiction of the court, the courts were justified in law by taking recourse to the provisions of Order 15 Rule 1 and Order 12 Rule 6 CPC for decreeing the suit without recording of evidence?
D. Whether it is permissible for the court to rely on an alleged admission made in the written statement for the purpose of decreeing the suit under Order 12 Rule 6 CPC particularly when the defence has already been struck off under Order 15 Rule 5 CPC?
E. Whether from the own case of the plaintiff coupled with the registered lease deed, the provisions of Section 29-A of the U.P. Act No. 13 of 1972 were attracted thereby protecting the tenancy from termination of efflux of time?
F. Whether for purpose of determining the applicability of U.P. Act No. 13 of 1972 in view of Section 29-A, the lower appellate court was justified in holding that the constructions on the suit property were temporary, only on the basis of the clause in the lease deed that provides that the lessee shall remove the constructions made by him on determination of the lease, without recording a categorical finding that the constructions actually existing on the suit property were temporary or permanent in nature?"
BACKGROUND OF THE CASE.
The plaint case is that by means of a lease deed dated 20.8.1969 between the plaintiffs and Smt. Darshan Devi Jain (the lessors of the one part) and Caltex India Limited,(the lessee of the other part), lease was granted in respect of suit property to Caltex India Limited on the terms and conditions mentioned in the lease deed. A few years after execution of the lease deed, the Caltex India Limited was merged and vested in the defendant, Hindustan Petroleum Corporation Limited1 and the identity of the Caltex India Limited got extinct. It is alleged that after the aforesaid merger, the tenancy came to an end but to avoid any conflict the plaintiffs accepted the defendant-appellant as month to month tenant and the tenancy period of ten years granted to M/s Caltex India Limited expired at the end of February, 1978 and the defendant-appellant continued to be a month to month tenant.
It is stated that one option regarding renewal of lease was granted in the year 1978 and the defendant-appellant was not entitled to any further option of renewal and thus the defendant-appellant remained a month to month tenant only. After defendant-appellant's tenancy expired at the end of February, 1988, it was liable to be evicted but to avoid any dispute, a notice for termination of tenancy was given by the plaintiff-respondent to the defendant-appellant treating it to be a month to month tenant and was informed that its tenancy would stand terminated on the expiry of 30 days from the date of receipt of the notice. Though the defendant-appellant's tenancy was terminated through registered notice dated 10.2.1988, the defendant-appellant did not vacate the land. To this notice, the defendant-appellant gave a reply to the notice that the defendant-appellant's tenancy is protected by U.P. Act No. 13 of 1972 and it is entitled to renewal of lease for a further term.
It is further stated that the lease granted to Caltex India Limited was in respect of a piece of land measuring 150 X 120 X 93 X 105 feet for the purpose of running a Petrol Pump and all the constructions, fittings and fixtures which have been made by the defendant-appellant are liable to be removed and the defendant-appellant cannot claim any benefit from the constructions whether permanent or temporary. It is mentioned that only land was given on lease hence the provisions of the U.P. Act No. 13 of 1972 were not applicable. Since the defendant-appellant failed to vacate the land despite notice of termination of tenancy, therefore, the suit was filed. It is alleged that the defendant-appellant had not paid rent with effect from 1.3.1988. That land of the plaintiff-respondents is at important locality in the city of Bareilly and the existing market value of the tenanted land would be Rs. 20,000/ per month. The defendant-appellant is liable to pay compensation for use and occupation at the rate of Rs. 20,000/ per month. It is stated that the cause of action for the suit arose firstly on 10.2.1988 when the notice for termination of tenancy was given to the defendant-appellant and, thereafter on or about 15.2.1988 when the notice of termination of tenancy was served and finally on 15.3.1988 when the period of notice of termination of tenancy expired and on the defendant-appellant's failure to vacate the land. Therefore, decrees for ejectment, recovery of arrears of rent, compensation and mesne profit were sought.
In the written statement, the allegations levelled by the plaintiff-respondents are denied. It is stated that Caltex India Limited was the original lessee of the demised land which subsequently merged in the defendant-appellant by Act No. 13 of 1977 and the Company Law Board Order No. S.O. 312(E) dated 9 May 1978. The allegation of the plaintiff-respondents that on merger of Caltex India Limited, tenancy came to an end was denied. It was stated that the defendant-appellant had exercised his option for renewal of lease after ten years from 1.3.1988 and the tenancy was renewed for a further ten years with effect from 1.3.1988. The renewal was granted pursuant to the registered lease deed. The receipt of notice dated 10.2.1988 was admitted but it was denied that such a notice could be deemed as a notice for termination of tenancy. Reply to the notice by the defendant-appellant was admitted. It was denied that the provisions of U.P. Act No. 13 of 1972 were not applicable. It was stated that the tenancy of the defendant-appellant was continued and stood renewed. In paragraph No. 25 of the written statement, it was stated that the predecessor of the defendant-appellant had erected permanent structure and construction and incurred expenses in connection thereto with the consent of the then landlords hence also provisions of Section 20 of the U.P. Act No. 13 of 1972 apply and suit was barred by the provisions of Section 20 read with Section 29A of the U.P. Act No. 13 of 1972. The termination of tenancy was denied.
The trial court framed 13 issues on 5.9.1988 and 28.2.1990 as under:-
1. Whether the U.P. Act 13 of 1972 is applicable over land/ premises in suit, if so its effect?
2. Whether this Court has court has no jurisdiction to try the suit?
3. Whether the tenancy in question stands terminated as alleged in plaint?
4. Whether the plaintiff is entitled to any compensation or mesne profit, if so at what rate?
5. Whether the suit is barred by the principle of estoppel and acquiescence?
6. Whether the defendant is protected under Section 20 read with Section 29 of U.P. Act 13 of 1972?
7. To what relief , if any, the plaintiff is entitled?
8. Whether the suit is not properly valued and court fee is also insufficient?
9. Whether the daughter of late Shri Heera Lal Jain became co-owner of the disputed property in dispute on the death of Shri Heera Lal Jain, if so its effect?
10. Whether the plaintiffs are sole owner of the disputed property?
11. Whether plaintiff's lease stand renewed upto the period of 29.2.1998 as per term of registered lease deed dated 20.8.69?
12. Whether the suit is bad for non-joinder of necessary parties?
13. Whether the suit is misconceived and not properly framed?"
However, thereafter, an application bearing paper No. 84-Ga was filed by the plaintiff-respondents to the effect that in view of the admission made by the defendant-appellant in its written statement, the suit for eviction be decreed under Order 15 Rule 1 of the Code of civil Procedure, 19082 keeping in view the determination of the tenancy. The defendants-appellants filed an objection paper No. 86-Ga. Another application paper No. 85-Ga was filed by the plaintiff-respondent to the effect that since the defendant-appellant has not deposited the rent in the court under the provisions of order 15 Rule 5 CPC, therefore, his defence be struck off. The defendant-appellant filed his objection 87-Ga.
After hearing the counsel for the parties on the aforesaid two applications ( 84-ga and 85-Ga), by means of the order dated 9.10.1998, the trial court directed striking off the defence of the defendant-appellant. The trial court, simultaneously, relying on paragraph nos. 6 and 20 of the written statement of the defendant-appellant observed that the defendant-appellant had admitted that the tenancy was extended upto 28.2.1998 and as such till 28.2.1998 they cannot be evicted. Therefore, the trial court under the provisions of Order 15 Rule 1 CPC held that since the defendant-appellant had no right to continue in possession over the disputed premises after 28.2.1998, it is liable to be evicted and directed the defendant-appellant to hand over peaceful possession to the plaintiffs-respondents alongwith outstanding rent and damages.
Challenging the decision of the trial court, an appeal under section 96 of the CPC was filed by the defendant-appellant before the lower appellate court. In the appeal, while noticing that the defence of the defendant-appellant had been struck off, the lower appellate court observed that it was open for the defendant to make his submissions and to cross examine the plaintiff. However, the lower appellate court held that when the defendant-appellant admitted the facts in any manner, then the court had authority to proceed under Order 12 Rule 6 CPC to dispose of the suit on the basis of admitted facts.
The lower appellate court observed that any such kind of construction which is to be removed after determination of tenancy would come under the meaning of temporary construction and by making such construction, the premises would not come within the definition of word 'building'. As such, the lower appellate court observed that the provision of Section 29A of the U.P. Act No. 13 of 1972 would not be applicable. It held the after striking off the defence, the defendant-appellant had opportunity to make their submissions. The lower appellate court further observed that the lease was renewed for a period of ten years twice and if during the period of lease, the tenancy was not renewed, the termination of tenancy would be deemed and, therefore, the conclusion drawn by the trial court were in accordance with law. The lower appellate court also observed that the notice for termination of tenancy was correctly given to the defendant.
SUBMISSIONS OF THE LEARNED COUNSEL.
It is contended by Sri Vikas Budhwar, learned counsel for the defendant-appellant, that though the trial court had decreed the suit only on the alleged admission made by the defendant in its written statement, the lower appellate court went a step further and entered into the merits of the case. He referred to paragraph number 7 of the plaint that the lease was granted to the predecessor-in-interest of the defendant-appellant in respect of a piece of land for purpose of running a petrol pump and that all construction, fittings and fixtures which were made by the defendant-appellant, which were of the time of its predecessor-in- interest, Caltex India Limited, were to be removed and the allegation was that the defendant cannot claim any benefit from the construction whether permanent or temporary. It is contended that there is no averment in the plaint that the constructions were illegal or without consent. Learned counsel has referred to the lease deed (paper No. 17Ga), and stated that in terms of paragraph no.2 thereof, open land was given to the predecessor-in-interest of the defendant-appellant together with right to the lessee to install, erect and maintain permanent constructions in and upon the said piece of land.
It is, therefore, contended that the lower appellate court ought to have recorded a finding about the nature of the constructions actually existing over the land in dispute in order to ascertain the applicability of the U.P. Act No. 13 of 1972. Learned counsel has referred to various paragraphs of the plaint to demonstrate that the issue of applicability of provision of U.P. Act No. 13 of 1972 was clear from a reading of the plaint itself and, therefore, the lower appellate court was bound to record a finding regarding the nature of the constructions actually existing on the land in dispute, with reference to the provisions of Section 29-A (2) read with Section 20 of the U.P. Act No. 13 of 1972.
The learned counsel has stated that specific and serious objections also with regard to jurisdiction were taken in the written statement and several contentious issues were framed on 15.9.1998 and 28.2.1990 and therefore, it was incumbent on the court below to have permitted proper cross examination of the plaintiff witness after the defense was struck off. The learned counsel relied upon the judgements of the Supreme Court rendered in Himani Alloys Limited Vs. Tata Steel Limited3, Payal Vision Limited Vs. Radhika Chodhary4, M/s Bharat Petroleum Corporation Ltd and another Vs. Smt. Indira Pandey and another5 and an unreported decision dated 26.8.2008 of the Supreme Court in the case of Hindustan Petroleum Corporation Ltd Vs. Diwan Bahadur Visheshwar Nath Trust, in Civil Appeal No. 5414 of 2000 and also a judgement in the case of S.M. Asif Vs. Virendra Kumar Bajaj6.
Sri V.K.Singh, learned Senior Advocate appearing for the plaintiff-respondents has rebutted the contention of the learned counsel for the appellant and has referred to paragraph no. 6 and 20 of the written statement to contend that admissions were made by the defendant which have been justifiably relied upon by the courts below. He stated that a condition precedent for applicability of section 29A of U.P. Act No. 13 of 1972 is the consent of the landlord with regard to making any permanent construction over the land in dispute, but no such consent is on record. Learned counsel has stated that the defendant-appellant was required to remove the constructions at the site on determination of the tenancy and thus, it is clear that the constructions were temporary in nature. It is contended that the tenancy lease was of open land and, therefore, the provision of the U.P. Act No. 13 of 1972 will not apply.
Learned counsel for the plaintiff-respondents, in support of his contentions, has relied upon two judgements of this Court in the case of Bharat Petroleum Corporation Limited Vs. Ramavati Devi7 and Rameshwar Dayal Agarwal Vs. Pawan Kumar8.
DISCUSSION & ANALYSIS Two applications bearing paper No. 84Ga and 85Ga, both dated 25.7.1998 were filed on behalf of the plaintiffs-respondents. Paper No. 84Ga is an application filed with a prayer that the extremely old suit be disposed of and decided immediately, and, on the basis of admission of the defendant-appellant, the tenancy of the defendant-appellant having determined, the suit be decreed under the provision of Order 15 Rule 1 CPC.
The application paper No. 85-Ga was filed with a prayer that the suit be heard on a day to day basis in compliance of a direction of the High Court, Allahabad and the defence of the defendant-appellant be struck off for non-deposit of rent. (This order of the High Court does not appear to be on record.) Two objections were filed by the defendant-appellant in respect of the aforesaid two applications bearing paper No. 87-Ga and 86-Ga respectively both dated 7.9.1998. In the objections, it is stated that the property in dispute is an accommodation which is protected under the Act No. 13 of 1972 and the suit is barred by the said Act. That the contractual tenancy of the defendant-appellant stood renewed till 28.2.1998 and it is wrong to say that the plaintiffs-respondents has any right to evict the defendant-appellant after expiry of the period of renewal. The defendant-appellant cannot be evicted, as provided for under the Act 13 of 1972. It is stated that the rights of the parties are to be decided on the date of filing of the suit and the plaintiffs-respondents is not entitled to evict the defendant-appellant even now. It is denied that the defendant-appellant had not deposited the admitted rent under Order 15 Rule 5 CPC. It is stated that up to date rent had been deposited in court which is a matter of record of the court.
With regard to the issue of striking off the defence of defendant-appellant, the trial court observed that the defendant-appellant was bound to prove that it had deposited the rent as per rule upto date which it failed to do. The trial court held that the defendant-appellant cannot participate in the proceedings of the suit and the application (paper No. 85-Ga) was allowed. The trial court, further, relied upon the averments contained in paragraph No. 6 and 20 of the written statement of the defendant-appellant which, as per the trial court, amounted to an admission that the period of tenancy of the defendant-appellant would automatically come to an end in February 1998. It was held that after 28.2.1998, the defendant-appellant had no right to retain possession of the property in dispute.
The lower appellate court, while referring to the provisions of Order 12 Rule 6 CPC, held that the tenancy having terminated on 28.2.1998 was admitted by the defendant-appellant and that if in any manner, an admission is made, the court is competent to dispose of the suit on the basis of admitted facts. While considering the applicability of provision of U.P. Act No. 13 of 1972, the lower appellate court held that in terms of original lease deed (Paper No. 17-Ga), the construction made by the defendant-appellant were not permanent in nature inasmuch as it was mentioned that after termination of tenancy, the tenant would remove the construction and would give possession of the vacant land. Such kind of construction would not come within the definition of word 'building' and as such the provisions of Section 29A of U.P. Act No. 13 of 1972 would not apply. However, the lower appellate court held that in view of the judgement of the Supreme Court in the matter of Modula India V. Kamakshya Singh Deo9, the defendant-appellant is not rendered helpless after his defence is struck off but is entitled to challenge the validity and legality of the notice and is entitled to cross examine the witness. The lower appellate court observed that 9.10.1998 was not the first date of hearing and, therefore, the application ( paper No. 84-Ga) was an application actually under Order 12 Rule 6 CPC. The lower appellate court held that in case there was only an application under Order 15 Rule 5 CPC then definitely the trial court was required to give time to the defendant-appellant to challenge the evidence of the plaintiffs-respondents and point out its falsity and weakness. However, the submission of the learned counsel that the order dated 9.10.1998 was passed without hearing him, was brushed aside by the lower appellate court on the ground that the decision of the trial court was made after hearing both the applications. While considering the deposit of rent made by the defendant-appellant, the lower appellate court held that there were several instances where the rent was deposited after the due date without there being any application/representation filed within ten days. The lower appellate court observed that the original lease deed was registered and the case was instituted on the basis of its not being renewed which proved that the lease was never renewed. Since, the defendant-appellant itself stated that the term was extended once for ten years and the extended terms of 10 years each came to an end during the pendency of the suit and, therefore, there was no necessity for giving another notice of termination of tenancy. Once a notice was given for termination of the tenancy and admittedly, the defendant-appellant's extended term of tenancy of ten years came to an end during the pendency of the suit, there was no ground or necessity for giving a separate notice. Accordingly, the summary order of the trial court was upheld, it being under the provision of Order 12 Rule 6 CPC.
Question 'A':
So far as the question that whether in the facts and circumstances of the case, the trial court was justified in striking off the defence of the defendant under Order 15 Rule 5 CPC, no arguments have been advanced by the learned counsel for the defendant-appellant in this regard. It is also observed from the finding of fact recorded by the lower appellate court that there was default in payment of rent by the defendant-appellant and there was no representation filed by it within ten days as provided in clause (2) of Order 15 Rule 5 ( U.P. Amendment).
Order 15 Rule 5 was inserted by U.P. Act No. 57 of 1976. Under this provision, the defendant is mandated to deposit the entire amount admitted by him to be due along with the specified interest in a suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation and the defendant is required throughout the continuation of the suit to regularly deposit monthly amount due within a week from the date of its accrual and in the event of any default in making the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the court may, subject to the provisions of sub-rule (2) strike off his defence. Sub-rule (2) provides that before making an order for striking off the defence, the Court may consider any representation made by the defendant in that behalf provided such representation is made within 10 days of the first hearing or, of the expiry of the week referred to in sub-section (1) as the case may be.
A perusal of the record reveals that the monthly rent was being deposited in the Court after lapse of more than a week of its accrual. Admittedly, no representations were filed. Such deposit of rent cannot be said to be rent deposited in terms of Order 15 Rule 5(1) CPC. Therefore, striking off the defence of the defendant-appellant by the trial court under Order 15 Rule 5 CPC was justified.
Questions 'B' and 'D':
Striking off the defence would have the effect of parties being not at issue. That is to say, the material facts contained in the written statement would not be considered as denial of the truth or validity of the material facts contained in the plaint. In Wharton's Law Lexicon (Sixteenth Edition), the word 'defence' is defined as:
"popularly a justification, protection, or guard; in law, a denial by the defendant of the truth or validity of the plaintiff's complaint.
In civil matters, a defence (which is always in writing or printed) is either (1) by statement of defence, which may be a denial of the plaintiff's right, or may be an allegation of a set off or counter claim by the defendant which will cover wholly or in part the claim of the plaintiff; or (2) by a statement of defence raising a point of law, so as to show that the facts alleged by the plaintiff do not disclose any cause of action to which effect can be given by the Court."
Striking off the defence as envisaged in Order 15 Rule 5 of the CPC (U.P. Amendment) or for that matter, in Order 11 Rule 21, cannot be construed to mean as striking out of the pleadings in the manner referred to under Order 6 Rule 16 CPC. Therefore, it is not as if on striking off the defence, each and every statement made in the written statement would be struck off without reference to the fact whether a particular statement is in defence or otherwise. Thus, on striking off the defence, it is always open for the Court to consider those statements of the written statement other than in defence, which may include admissions. So the admissions made in the written statement could be looked into by the courts below.
Order 15 Rule 1 CPC and Order 12 Rule 6 CPC operate in distinguishable areas, borders of which may overlap. While proceeding to pass judgement on an admission under Order 12 Rule 6 CPC, the Court is guided by the provisions of Section 17 and onwards of the Indian Evidence Act. A combined reading of Section 31 and Section 58 of the Evidence Act cast a duty on the Courts to exercise discretion, in appropriate cases, in the matter of passing judgements on such admissions of fact to be proved otherwise than by such admissions.
The word 'admission' is defined under Section 17 of the Indian Evidence Act, 1972 which is as follows:-
"17. An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned".
Sections 31 and 58 of the Indian Evidence Act read as follows:
"31. Admissions not conclusive proof, but may estop.- Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions hereinafter contained."
"58. Facts admitted need not be proved.- No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions."
Thus, the first requirement of admission is a statement whether oral or documentary which is made by any of the person and under the circumstances provided in sections subsequent to Section 17 of the Indian Evidence Act. In the present case, the statement of admission of the defendant-appellant is stated to be in its written statement.
Rule 6 of Order 12 of CPC reads as under:-
"6. Judgment on admissions-(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgement is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced".
Rule 6 of Order 12 CPC, therefore, is referable to any admission of fact made either in pleading or otherwise whether oral or in writing. It also vests a discretion in the Court, by usage of the word 'may', to make or not to make such order or give such judgement, having regard to such admissions.
Rule 1 of Order 15 CPC reads as follows:
"1. Parties not at issue.- Where at the first hearing of a suit it appears that the parties are not at issue on any question of law or of fact, the Court may at once pronounce judgement."
Parties may not be at issue for want of denial or in view of clear, categorical and unequivocal admissions. Where there is want of specific denial or an allegation of fact in the plaint is stated to be not admitted in the written statement, it shall be taken to be admitted, but even in such a case, the court has discretion to require any fact so admitted to be proved otherwise than by such admission (Order 8 Rule 6 CPC). Order 15 Rule 1 CPC vests in the Court the discretion to pronounce judgement forthwith at the first hearing of the suit where it appears that the parties are not at issue on any question of law or of fact.
However, while looking into an admission under Order 12 Rule 6 CPC the court is required to be more careful. The lower appellate court has correctly observed that 9.10.1998 was not the first date of hearing and that the application, paper no. 84-Ga, was an application under Order 12 Rule 6 CPC and not under Order 15 Rule 1 CPC. That having been said, in the present case before the trial court, on 9.10.1998, not only were the alleged admissions of the defendant-appellant in the written statement being considered, but the defence itself was struck off. The defendant-appellant was visited by these twin consequences simultaneously, albeit after hearing. But there is no gainsaying the fact that prior to passing of the impugned order dated 9.10.1998, there was no clue what decision would visit each of the applications, paper nos. 84-Ga and 85-Ga.
The so-called admission of the defendant-appellant as referred to by the courts below is stated to be in paragraph Nos. 6 and 20 of the written statement. Paragraph Nos. 6 and 20 of the written statement are as follows:
"6. With regard to Para 6 of the plaint it is stated that there is a provision of 2 firm renewals of 10 years each in the Lease Deed dated 20.8.1969 and lease was renewed firstly for 10 years on 1.3.1978 to 29.2.1988 and stands renewed for a further period of 10 years from 1.3.1988 to 28.2.1998 as defendant has exercised his option for renewal orally and amongst other through registered letter dated 15.12.87 duly received by the plaintiff. It is not admitted that the plaintiff (sic defendant) is not entitled to further renewal. It is also not admitted that renewal which was granted to the defendant in 1978 was through registered document hence defendant was month to month tenant. It is also not admitted that the defendant tenancy has been rightly or in any way terminated through notice dated 10.2.88."
"20. That the lease renewed firstly upto 28.2.88 and thereafter upto 28.2.98 in pursuance of the registered lease deed mentioned earlier. In fact plaintiffs and their predecessors accepted and have been accepting this preposition and acting upon the same".
In light of above facts and law, it is to be considered whether the statements made in paragraphs 6 and 20 of the written statement are admissions and if so, whether they are clear, unconditional and unequivocal. The courts below have held that the averments in the aforesaid two paragraphs of the written statement that the lease stood renewed up till 28.2.1998 is an admission by the defendant-appellant that the term of the lease expired on 28.2.1998.
The averment in paragraph no. 6 of the written statement, that the lease was renewed upto 28.2.1998 is a reply to paragraph no. 6 of the plaint which is as follows:
"6. That the facts are that one renewal was permitted as per the lease deed dated 20.8.1969 which has already been granted to the defendant and now the defendant was and is not entitled to any further renewal and as the renewal which was given to the defendant in the year 1978 was not through a registered document, hence the defendant was month to month tenant and the defendant's tenancy was rightly terminated through notice dated 10.2.1988."
The admission referred to by the courts below made in paragraphs 6 and 20 of the written statement, in the facts and circumstances of the present case, ought not to be read in isolation for purpose of exercise of power under O.12 R.6 CPC, but having regard to the plaint as well as the written statement. The Court has to consider the admissions made by a party in any proceeding and exercise its discretion whether or not the facts admitted are required to be proved otherwise than by such admissions. Moreover, a perusal of the written statement reveals that there are serious objections as to the maintainability of the case in view of the provisions of Section 20 read with section 29A of the U.P. Act No. 13 of 1972. Some issues were also framed in this regard.
Order 12 Rule 6 of the CPC provides for passing of judgements on admissions without waiting for the determination of any other question between the parties having regard to such admissions. In the instant case, the courts below have, without giving any opportunity to the defendant-appellant, proceeded to decree the suit for possession only on the basis of the aforesaid admission. After the defence was struck off on 9.10.1998, the defendant-appellant was left with no opportunity by the courts below to attempt to demonstrate the falsity of the claim of the plaintiff-respondent made in paragraph no. 7 of the plaint in which the allegation is that the suit is not barred under the provisions of the U.P. Act No. 13 of 1972. Paragraph No. 7 of the plaint is as follows:-
"7.That the lease granted to the Caltex India Limited was in respect of a piece of land measuring 150 x 120 x 93 x 105 feet for the purpose to run the petrol pump and all the constructions, fittings and fixtures which have been made by the defendant and which were of the time of Caltex India Limited are liable to be removed and the defendant cannot claim any benefit from the constructions whether permanent or temporary. It may be mentioned that only land was given on lease hence the provisions of the U.P. Act XIII of 1972 are not applicable."
It would have been prudent for the courts below to have elicited from the defendant-appellant a clarification or explanation for the admission.
Even though such ''non-admissions' appearing in paragraph no.6 of the written statement create a legal fiction of admission under the provisions of Order 8 Rule 5 CPC ("taken to be admitted"), the discretion of the court to require any fact so admitted to be proved otherwise than by such admissions, is kept intact in the proviso. The admission itself is not unconditional, unequivocal or clear. It would have been in the fitness of things for the trial court, under the circumstances, to ask for a clarification from the defendant-appellant regarding the admission instead of proceeding to decree the suit. The lower appellate court has held that the defendant-appellant was heard prior to decision of the application paper no.84-Ga, without adverting to the fact that the defendant-appellant was actually left with no opportunity, after striking off its defence, to cross-examine the plaintiff-respondents and make submissions. There is no admission that the lease would come to an end on 28.2.1998 entitling the plaintiff-respondent for a decree of eviction by the civil court exercising plenary jurisdiction dehors the competence / jurisdiction of the courts below given the objection of non-maintainability of the suit in view of the provision of Section 20 read with Section 29A of the U.P. Act No. 13 of 1972. Even in the plaint, it is admitted that the one option of renewal of the lease was granted till February 1988. Admittedly, to the notice sent by the plaintiff-respondent dated 10.02.1988, the defendant-appellant replied that its tenancy is protected by the U.P. Act No.13 of 1972 and that it is entitled to renewal of the lease for a further term. Therefore, such an 'admission' as construed by the courts below would not be a clear and unequivocal admission in the facts and circumstances of the present case and the defendant-appellant had showed no intention to be bound by it. It was a fit case for the courts below to have exercised its discretion not to decree the suit on the basis of that admission given the fact that the defendant-appellant had pleaded that the suit is barred under the provisions of Section 20 read with Section 29A of U.P. Act No. 13 of 1972.
In this regard, it is useful to refer to the following judgments. Considering the scope of Order 12 Rule 6 of CPC, the Supreme court in the case of Karam Kapahi and others Vs. Lal Chand Public Charitable Trust and another10 observed as follows:-
"37. The principles behind Order 12 Rule 6 are to give the plaintiff a right to speedy judgment. Under this Rule either party may get rid of so much of the rival claims about "which there is no controversy" ( see the dictum of Lord Jessel, the Master of Rolls, in Thorp. V. Holdsworth in Chancery Division at p.640)....."
39. "...........In our opinion the thrust of the amendment is that in an appropriate case, a party, on the admission of the other party, can press for judgment, as a matter of legal right. However, the court always retains its discretion in the matter of pronouncing judgment."
"48. However, the provision under Order 12 Rule 6 of the Code is enabling, discretionary and permissive and is neither mandatory nor it is peremptory since the word "may" has been used. But in a given situation, as in the instant case, the said provision can be applied in rendering the judgment."
In Himani Alloys Limited (supra), the Supreme Court held as follows:
"11. It is true that a judgement can be given on an "admission" contained in the minutes of a meeting. But the admission should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. Order 12 Rule 6 being an enabling provision, it is neither mandatory nor peremptory but discretionary. The court, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgement without trial which permanently denies any remedy to the defendant, by way of an appeal on merits. Therefore unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim. In short the discretion should be used only when there is a clear "admission" which can be acted upon.( See also Uttam Singh Duggal & Co. Ltd. Vs. United Bank of India11, Karam Kapahi V. Lal Chand Public Charitable Trust12 and Jeevan Diesels and Electricals Ltd. V. Jasbir Singh Chadha13). There is no such admission in this case.
(emphasis by Court) In the case of Payal Vision Limited (supra), the Supreme Court observed as follows:-
"8. The above sufficiently empowers the court trying the suit to deliver judgment based on admissions whenever such admissions are sufficient for the grant of the relief prayed for. Whether or not there was an unequivocal and clear admission on either of the two aspects to which we have referred above and which are relevant to a suit for possession against a tenant is, therefore, the only question that falls for determination in this case and in every other case where the plaintiff seeks to invoke the powers of the court under Order 12 Rule 6 CPC and prays for passing of the decree on the basis of admission. Having said that we must add that whether or not there is a clear admission upon the two aspects noted above is a matter to be seen in the fact situation prevailing in each case. Admission made on the basis of pleadings in a given case cannot obviously be taken as an admission in a different fact situation. That precisely is the view taken by this Court in Jeevan Diesels & Electricals Ltd relied upon by the High Court where this Court has observed: (SCC p. 604, para 10).
"10.... Whether or not there is a clear, unambiguous admission by one party of the case of the other party is essentially a question of fact and the decision of this question depends on the facts of the case. The question, namely, whether there is a clear admission or not cannot be decided on the basis of a judicial precedent. Therefore, even though the principles in Karam Kapahi may be unexceptionable they cannot be applied in the instant case in view of totally different fact situation."
Further, in the case of S.M. Asif (supra), it was held by the Apex Court as follows:-
"8. The words in Order 12 Rule 6 CPC "may" and "make such order...." show that the power under Order 12 Rule 6 CPC is discretionary and cannot be claimed as a matter of right. Judgment on admission is not a matter of right and rather is a matter of discretion of the court. Where the defendants have raised objections which go to the root of the case, it would not be appropriate to exercise the discretion under Order 12 Rule 6 CPC. The said rule is an enabling provision which confers discretion on the court in delivering a quick judgment on admission and to the extent of the claim admitted by one of the parties of his opponent's claim".
Where the defence is struck off under the provisions of Order 15 Rule 5, it is not as if the defendant is left to the mercy of the facts pleaded in the plaint. The Supreme Court in the case of Modula India (supra) held that where the defence is struck off, the defendant-appellant should be allowed his right of cross examination and argument. The court held that as follows:
"16- ..................... But it does not necessarily follow that, once the defence is struck off, the defendant is completely helpless and that his conduct of the case should be so crippled as to render a decree against him inevitable. To hold so would be to impose on him a punishment disproportionate to his default. The observations made by this Court, while discussing the provisions of the CPC, and the Original Side rules of the Calcutta High Court which deal with somewhat analogous situations, cannot be lightly brushed aside. Those decisions have enunciated a general equitable principle. We are also of the same view that provisions of this type should be construed strictly and that the disabilities of a person in default should be limited to the minimum extent consistent with the requirements of justice. This should be all the more so in the context of a tenancy legislation, the main object of which is to confer protection on tenants against eviction by the landlord, unless certain statutory conditions are fulfilled. The provisions should not be given any wider operation than could have been strictly intended by the legislature.
.....................
18- We agree that full effect should be given to the words that defence against ejectment is struck off. But does this really deprive the defendant tenant of further participation in the case in any manner? While it is true that, in a broad sense, the right of defence takes in, within its canvass, all aspects including the demolition of the plaintiff's case by the cross-examination of his witnesses, it would be equally correct to say that the cross-examination of the plaintiff's witnesses really constitutes a finishing touch which completes the plaintiff's case. It is a well established proposition that no oral testimony can be considered satisfactory or valid unless it is tested by cross-examination. The mere statement of the plaintiffs witnesses cannot constitute the plaintiff's evidence in the case unless and until it is tested by cross-examination. The right of the defence to cross-examine the plaintiff's witnesses can, therefore, be looked upon not as a part of its own strategy of defence but rather as a requirement without which the plaintiff's evidence cannot be acted upon. Looked at from this point of view it should be possible to take the view that, though the defence of the tenant has been struck out, there is nothing in law to preclude him from demonstrating to the court that the plaintiff's witnesses are not speaking the truth or that the evidence put forward by the plaintiff is not sufficient to fulfill the terms of the statute.
19- To us it appears that the basic principle that where a plaintiff comes to the court he must prove his case should not be whittled down even in a case where no defendant appears. It will at once be clear that to say that the Court can only do this by looking the plaintiff's evidence and pleadings supplemented by such questions as the court may consider necessary and to completely eliminate any type of assistance from the defendant in this task will place the court under a great handicap in discovering the truth or otherwise of the plaintiffs statements. For after all, the court on its own motion, can do very little to ascertain the truth or otherwise of the plaintiff's averments and it is only the opposite party that will be more familiar with the detailed facts of a particular case and that can assist the court in pointing out defects, weaknesses, errors and inconsistencies of the plaintiffs case.
20- We, therefore, think that the defendant should be allowed his right of cross-examination and arguments. But we are equally clear that this right should be subject to certain important safeguards. The first of these is that the defendant cannot be allowed to lead his own evidence. None of the observations or decisions cited have gone to the extent of suggesting that, inspite of the fact that the defence has been struck off, the defendant can adduce evidence of his own or try to substantiate his own case.
............
.............
.............
24- For the above reasons, we agree with the view of Ramendra Mohan Dutta, ACJ that, even in a case where the defence against delivery of possession of a tenant is struck off under Section 17(4) of the Act, the defendant, subject to the exercise of an appropriate discretion by the court on the facts of a particular case, would generally be entitled:
(A) to cross-examine the plaintiff's witnesses; and
(b) to address argument on the basis of the plaintiff's case.
We would like to make it clear that the defendant would not be entitled to lead any evidence of his own nor can his cross-examination be permitted to travel beyond the very limited objective of pointing out the falsity or weaknesses of the plaintiff's case. In no circumstances should the cross-examination be permitted to travel beyond this legitimate scope and to convert itself virtually into a presentation of the defendant's case either directly or in the form of suggestions put to the plaintiff's witnesses".
Thus, on striking off the defence, the right of cross examination of the plaintiff's witnesses and of addressing arguments on the basis of the plaintiff's case has been elaborated by the Supreme Court in Modula India. The original record of the court below reveals that the testimony of PW-1 was recorded on 3.12.1997 and 18.3.1998 but the cross examination was not concluded. Moreover, it is much prior to the striking off the defence of the defendant-appellant on 9.10.1998. Therefore, the defendant-appellant had actually no opportunity to cross-examine the plaintiff's witnesses or to address arguments post striking off its defence.
Therefore, the order of the trial court dated 9.10.1998 simultaneously decreeing the suit of the plaintiff-respondent on the basis of the admission while striking off the defense of the plaintiff-appellant without exercising its discretion as envisaged under the aforesaid provisions of the Evidence Act, cannot be countenanced in view of the facts and circumstances of the present case. The trial court ought to have permitted the counsel for the defendant-appellant to address it on the issue of admission. As a matter of fact, the exercise of trial court in proceeding to determine both the applications (paper No. 84-Ga and 85-Ga) together does not appear to be an act of circumspection that is required to be exercised by a court. Therefore, under the fact and circumstances of the present case, the composite order dated 9.10.1998 ought not to have been passed by the trial court.
Questions 'C', 'E' and 'F':
Thirteen contentious issues were framed by the trial court which included one with regard to the protection of U.P. Act No. 13 of 1972 to the defendant-appellant as well as with regard to the jurisdiction of the Court. However, on the defence being struck off, under the provisions of Order 15 Rule 5 CPC (U.P. Amendment), the statements of denial of the question of fact and law raised by the defendant-appellant in his written statement were deemed to have been struck off. However, the issue of maintainability of the suit and to the applicability of the U.P. Act No.13 of 1972 is apparent even on reading of the plaint. In view of the judgement of the Supreme Court in Modula India, the defendant-appellant ought to have been permitted to cross examine the plaintiffs witnesses as observed by the Supreme Court in Modula India.
It would be pertinent to turn to the contents of the lease deed dated 20.8.1969 executed by the plaintiffs-respondents in favour of the defendant-appellant. This lease deed (paper No. 17-Ga) is the genesis of the present controversy. The terms and condition of the lease commence from page 1 of the lease deed itself which is as follows:
"WHEREBY IT IS AGREED as follows:-
The Lessor hereby lets and the Lessee hereby takes All that piece of land measuring 150' x 120' x 93' x 105' on Lucknow Bareilly Road at Bareilly Kasba Hafizpur as per CALTEX DRAWING NO. DLH 788-4 and more particularly described in the Schedule hereto and delineated on the plan hereto annexed being thereon surrounded by a red colour boundary line TOGETHER WITH all ways passages lights drains sewers water courses rights easements advantages and appurtenances whatsoever to the said piece of land belonging or therewith usually held or enjoyed AND TOGETHER ALSO WITH the right for the Lessee to instal erect and maintain in and upon the said piece of land roadways and pathways and underground petroleum storage tanks and petroleum delivery pumps connected with the said tanks and shelter for an attendant and any other building erection or equipment whether of a permanent or temporary nature for the purpose of storing selling or otherwise carrying on trade in petrol petroleum products oil and kindred motor accessories and any other trade or business that can conveniently be carried on therewith AND TOGETHER ALSO with the right for the Lessee its local dealers or agents to use the premises hereby demised at all times and for all purposes TO HOLD the demised premises unto the lessee from the first day of March, 1968 till 28th of February 1978 (renewable and determinable as hereinafter provided) at the monthly rent of Rs. 100/ only ( Rupees One Hundred Only) payable on or before the fifth day of every succeeding English calendar month, the first payment of Rs. 1,200.00 being advance rental for the period 1.3.1968 to 28.2.1969 will be paid at the time of registration."
The other relevant terms of the lease deed are as follows:-
"2(g). To deliver up the demised premises at the expiration or sooner determination of the tenancy or in the event of the Lessee removing the said underground petrol tank and said Petrol delivery pump and the said shelter with their appurtenances and other buildings, erections or equipment pursuant to the proviso in that behalf hereinafter contained to deliver up the demised land restored to its former condition.
4(b). The Lessee shall be at liberty (1) to construct fix erect in or upon or fasten to the demised premises office and trade fixtures and fittings such as screens counters partitions benches shelves lockers and sun-blinds and gas and electric fittings and to remove the said fixtures and fittings and also the said underground petrol tank and petrol delivery pump and shelter with their appurtenances and other buildings erections and equipment at the expiration or sooner determination of the tenancy or within one month thereafter without objection on the part of the Lessor, but in such case the Lessee shall make good any damage which may be caused to the demised land by such removal."
(emphasis by Court) It is, therefore, evident that only land was given on lease with the right for the lessee to install, erect and maintain constructions, buildings and fixtures whether of a permanent or temporary nature.
At this stage, it would be pertinent to refer the contents of Section 20 and 29-A of the U.P. Urban Buildings ( Regulation of Letting, Rent and Eviction) Act, 1972 as under:
20. Bar of suit for eviction of tenant except on specified grounds.- (1) Save as provided in sub-section (2), no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner :
Provided that nothing in this sub-section shall bar a suit for the eviction of a tenant on the determination of his tenancy by efflux of time where the tenancy for a fixed term was entered into by or in pursuance of a compromise or adjustment arrived at with reference to a suit, appeal, revision or execution proceeding. which is either recorded in court or otherwise reduced to writing and signed by the tenant.
(2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely : -
(a) that the tenant is in arrears of rent for not less than four months. and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand:
Provided that in relation to a tenant who is a member of the armed forces of the Union and in whose favour the prescribed authority under the Indian Soldiers (Litigation) Act, 1925 has issued a certificate that he is serving under special conditions within the meaning of section 3 of that Act or where he has died by enemy action while so serving, then in relation to his heirs, the words "four months" in this clause shall be deemed to have been substituted by the words "one year";
(b) that the tenant has wilfully caused or permitted to be caused substantial damage to the building;
(c) that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it ;
(d) that the tenant has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the building, or has without the consent in writing of the landlord used it for a purpose other than such purpose, or has been convicted under any law for the time being in force of an offence of using the building or allowing it to be used for illegal or immoral purposes;
(e) that the tenant has sub-let, in contravention of the provisions of section 25, or as the case may be, of the old Act, the whole or any part of the building;
(f) that the tenant has renounced his character as such or denied the title of the landlord, and the latter has not waived his right of reentry or condoned the conduct of the tenant ;
(g) that the tenant was allowed to occupy the building as part of his contract of employment under the landlord, and his employment, has ceased.
(3) omitted.
(4) ................
(5) ................
(6) ...................."
29-A. Protection against eviction to certain classes of tenants of land on which building exists. -
(1) For the purposes of this section, the expression "tenant" and "landlord" shall have the meanings respectively assigned to them in clauses (a) and (j) of Section 3 with the substitution of the word "land" for the word "building".
(2) This section applies only to land let out, either before or after the commencement of this section, where the tenant, with the landlord's consent has erected any permanent structure and incurred expenses in execution thereof.
(3) Subject to the provisions hereinafter contained in this section, the provisions of section 20 shall apply in relation to any land referred to in subsection (2) as they apply in relation to any building.
(4) The tenant of any land to which this section applies shall be liable to pay to the landlord such rent as may be mutually agreed upon between the parties, and in the absence of agreement, the rent determined in accordance with sub-section (5).
(5) The District Magistrate shall on the application of the landlord or the tenant determine the annual rent payable in respect of such land at the rate of ten per cent per annum of the prevailing market-value of the land, and such rent shall be payable, except as provided in sub-section (6) from the date of expiration of the term for which the land was let or from the commencement of this section, whichever is later.
(6)(a) In any suit or appeal or other proceeding pending immediately before the date of commencement of this section, no decree for eviction of a tenant from any land to which this section applies, shall be passed or executed except on one or more of the grounds mentioned in sub-section (2) of Section 20, provided the tenant, within a period of three months from the commencement of this section by an application to the Court, unconditionally offers to pay to the landlord, the enhanced rent of the land for the entire period in suit and onwards at the rate of ten per cent per annum of the prevailing market value of the land together with costs of the suit (including costs of any appeal or of any execution or other proceedings).
(b) In every such case, the enhanced rent shall, notwithstanding anything contained in sub-section (5), be determined by the Court seized of the case at any stage.
(c) Upon payment against a receipt duly signed by the plaintiff or decree-holder or his counsel or deposit in Court of such enhanced rent with costs as aforesaid being made by the tenant within such time as the Court may fix in this behalf, the Court shall dismiss the suit, or, as the case may be, discharge the decree for eviction, and the tenancy thereafter shall continue annually on the basis of the rent so enhanced.
(d) If the tenant fails to pay the said amount within the time so fixed (including any extended time, if any, that the Court may fix or for sufficient cause allow) the Court shall proceed further in the case as if the foregoing provisions of this section were not in force.
(7) The provisions of this section shall have effect, notwithstanding anything to the contrary contained in any contract or instrument or in any other law for the time being in force.
Explanation.--For the purposes of sub-section (6) where a case has been decided against a tenant by one Court and the limitation for an appeal therefrom has not expired on the date immediately before the commencement of this section, this section shall apply as it applies to pending proceedings and the tenant may apply to that Court for a review of the judgment in accordance with the provisions of this section."
This Court in the case of M/s Bharat Petroleum Corporation Ltd and another Vs. Smt. Indira Pandey and another (supra) while deciding the second appeal, observed that "in order to attract, Section 29-A, and to bring a premises/land within the ambit of Section 29-A(2), three things are required to be satisfied:(i) only land is/was let out (ii) tenant has/had erected a permanent structure incurring his own expenses and (iii) aforesaid permanent structure raised by the tenant must be with the consent of landlord. If these three conditions are satisfied, Section 29-A(2), or in other words, the aforesaid Section itself shall apply to such land."
In the aforesaid case of M/s Bharat Petroleum Corporation Ltd and another Vs. Smt. Indira Pandey and another, by lease deed dated 18.9.1957, the landlord had specifically permitted the lessee to raise permanent construction over the land so let out for the purpose of running filling station/service station etc. for which lease was executed. The Court held that since there exist permanent structure which included machinery etc. on the land in dispute which was raised by the defendant-appellant by incurring their own expense, the consent of landlord was obvious. The Court held that the land in dispute clearly comes within the ambit of Section 29-A(2) of the U.P. Act No. 13 of 1972 and satisfies all the requirements thereunder. That judgment of this Court in the case of Bharat Petroleum Corporation Ltd. was upheld by the Supreme Court by means of its order dated 8.2.2016 passed in Petition for Special Leave to Appeal (C) No.33567-33568 of 2013, whereby, the Special Leave Petitions filed against the Bharat Petroleum Corporation Ltd. were dismissed.
In the present case, the lower appellate court has observed that since there exists a clause in the lease deed which requires removal of construction after determination of the tenancy, the construction would come under the meaning of temporary construction and by making such construction, the premises would not come within the definition of word 'building'. As such, the lower appellate court observed that the provisions of Section 29-A of the U.P. Act No. 13 of 1972 would not be applicable.
The plaintiffs-respondents, even though the defence of the defendant-appellant was struck off, were enjoined to plead and prove their case that the constructions made by the defendant-appellant on the demised land were non-consensual and/or temporary in nature and therefore, would not confer any benefit to the defendant-appellant and hence the provisions of U.P. Act No. 13 of 1972 were not applicable. Neither is there any pleading nor evidence by the plaintiff-respondent regarding want of consent or the nature of the constructions.
The defendant-appellant, once its defence was struck off, was entitled to an opportunity to cross examine the plaintiffs' witness on this issue as only then the facts pertaining to the case of the plaintiff-respondent could be said to be proved or not. This cross examination would be permissible as it would be on the case in the plaint and not in defence. Just because a clause in the lease requires the lessee to remove construction made by him on determination of lease, would not make the constructions made in terms of lease deed aforesaid on the site as temporary. A specific finding of fact was necessarily required to be returned by the courts below, after recording evidence of the structures/constructions actually existing on the premises in dispute, whether the structures are permanent or temporary.
Admittedly, the lease deed dated 20.8.1969 granted the lease of the premises in dispute upto 28.2.1978 at a monthly rent of Rs. 100/- only, with provision for extension of the lease. Section 29A of the U.P. Act No. 13 of 1972 was inserted with effect from 5.7.1976 by U.P. Act No. 28 of 1976. Thus, the defence of protection against the eviction provided by Section 20 read with Section 29A was available to the defendant-appellant even prior to the lease coming to an end on 28.2.1978.
The findings of the courts below that since a clause in the lease deed provided for removal of erected structure/construction by the defendant-appellant at the time of expiration or sooner determination of the tenancy, the structure/construction are temporary, have been wrongly determined by the courts below. There is no material or evidence on record to substantiate what is the nature of the construction actually existing on the property in dispute. However, in paragraph No. 7 of the plaint, it has been admitted that constructions were made on the disputed property by the defendant-appellant which is also corroborated by the PW-1 in his testimony.
The Supreme Court in the matter of Purshottam Das Bangur and others Vs. Dayanand Gupta; 2012 (10) SCC 409 observed as follows:-
"16. In Venkatlal G. Pittie v. Bright Bros. (P) Ltd. [(1987) 3 SCC 558] the landlord alleged that the tenant had without his consent raised a permanent structure in the demised premises. The trial court as also the first appellate court had taken the view that the construction raised by the tenant was permanent in nature. The High Court, however, reversed the said finding aggrieved whereof the landlord came up to this Court in appeal. This Court referred to several decisions on the subject including a decision of the High Court of Calcutta in Suraya Properties (P) Ltd. v. Bimalendu Nath Sarkar [AIR 1965 Cal 408] to hold that one shall have to look at the nature of the structure, the purpose for which it was intended to be used and take a whole perspective as to how it affects the enjoyment and durability of the building, etc. to come to a conclusion whether or not the same was a permanent structure. This Court approved the view taken in Suraya Properties (P) Ltd. v. Bimalendu Nath Sarkar [AIR 1965 Cal 408] and Surya Properties (P) Ltd. v. Bimalendu Nath Sarkar [AIR 1964 Cal 1] , while referring to the following tests formulated by Malvankar, J. in an unreported decision in Special Civil Application No. 121 of 1968: (Venkatlal G. Pittie case [(1987) 3 SCC 558] , SCC p. 567, para 22) "22. ... (1) intention of the party who put up the structure; (2) this intention was to be gathered from the mode and degree of annexation; (3) if the structure cannot be removed without doing irreparable damage to the demised premises then that would be certainly one of the circumstances to be considered while deciding the question of intention. Likewise, dimensions of the structure; and (4) its removability had to be taken into consideration. But these were not the sole tests. (5) The purpose of erecting the structure is another relevant factor; (6) the nature of the materials used for the structure; and (7) lastly the durability of the structure."
"20. To sum up, no hard-and-fast rule can be prescribed for determining what is permanent or what is not. The use of the word "permanent" in Section 108(p) of the Transfer of Property Act, 1882 is meant to distinguish the structure from what is temporary. The term "permanent" does not mean that the structure must last forever. A structure that lasts till the end of the tenancy can be treated as a permanent structure. The intention of the party putting up the structure is important for determining whether it is permanent or temporary. The nature and extent of the structure is similarly an important circumstance for deciding whether the structure is permanent or temporary within the meaning of Section 108(p) of the Act. Removability of the structure without causing any damage to the building is yet another test that can be applied while deciding the nature of the structure. So also the durability of the structure and the material used for erection of the same will help in deciding whether the structure is permanent or temporary. Lastly, the purpose for which the structure is intended is also an important factor that cannot be ignored.
(emphasis by Court) The nature of construction permitted by the aforesaid lease deed in the present case undoubtedly also refers to permanent constructions being permitted to be made by the defendant-appellant which could not be removed except by substantial damage to the property in dispute and which were meant to last till determination of the tenancy. As a matter of fact, clause 4-(b) of the lease deed itself, while providing for removal of the construction/building/erection at the expiration or sooner determination of the tenancy by the defendant-appellant, also provides for the lessee to make good any damage which may be caused to the demised land by such removal. It is not the case of the plaintiff-respondent that the structure/erection/construction permitted by the lease deed aforesaid, are not existing over the property in dispute. Thus, it is held that the constructions on the property in dispute were made by the defendant-appellant after due consent of the plaintiff-respondents which is evident from the terms of the lease deed, and, they are permanent in nature.
The reliance of the learned counsel for the plaintiff-respondent on the judgment of Bharat Petroleum Corporation Limited Vs. Smt. Ramavati Devi (supra) (hereinafter referred to as the Ramavati Devi's case) and on the case of Rameshwar Dayal Agarwal Vs. Pawan Kumar (supra) are, misplaced. The decision in Ramavati Devi's case did not rest, but was taken to the Apex Court in Civil Appeal No. 391 of 2010 which was disposed of by the Supreme Court with the direction that it was open for the defendant to claim benefit of Section 29A(3) of the U.P. Act No. 13 of 1972 in the pending suit. The Supreme Court further observed that it is not for the court concerned to decide whether the appellant is entitled to benefit of Section 29A(3) or not [refer paragraph 12 of the case of M/s Bharat Petroleum Corporation Ltd Vs. Smt. Indira Pandey and another (supra)]. The suit consequentially continued and was decided. This Court then considered the judgement of trial court and lower appellate court in Second Appeal No. 319 of 2012 (M/s Bharat Petroleum Corporation Limited Vs. Smt. Ramavati Devi) which was connected to the aforesaid case of M/s Bharat Petroleum Corporation Limited Vs. Smt. Indira Pandey and the decision thereof forms the judgement in the matter of M/s Bharat Petroleum Corporation Ltd Vs. Smt. Indira Pandey (supra). This decision was challenged by Ramavati Devi before the Supreme Court of India in a petition for Special Leave to Appeal (C ) No. 33567-33568 of 2013 which came to be dismissed by means of an order dated 8.2.2016.
The decision in the matter of Rameshwar Dayal Agarwal (supra) was passed in a writ petition filed by the decree holder for quashing the order dated 1.12.1997 passed by the executing court whereby the objection filed by the judgement-debtor seeking benefit of Section 29A of U.P. Act No. 13 of 1972 were allowed and it was ordered that if the enhanced annual rent were deposited by the judgement-debtor, the decree for eviction shall stand discharged. In paragraph No. 52 of the judgement it is observed "................thus, if the work of erection of a structure is substantial or brings about a substantial change in the character of the premises and it is not merely a small physical change of temporary nature, such work of erection will be of permanent nature. The nature of the construction and intention with which it is made are relevant for determining whether any permanent structure has been erected. If on an open plot of land a structure is raised, it may not be a permanent structure if it can be removed without causing harm or detriment to the plot of land". This Court, therefore, held that the executing as well as the revisional court had misread the terms of lease deed and recorded a perverse finding that the lease deed permitted all kinds of construction to be raised whether temporary or permanent and since there were temporary construction raised, the benefit of Section 29A of the U.P. Act No. 13 of 1972 was available to the tenant.
The facts and circumstances of the case in Rameshwar Dayal Agarwal Vs. Pawan Kumar are different from the present case. Moreover, the decision rendered by the Supreme Court in Purshottam Das Bangur and ors Vs. Dayanand Gupta (supra) as followed and relied upon by this Court in the judgement of Sunder Lal Bhatia Vs. Onkar Nath Saxena and others14 are to the effect that the nature of the constructions existing on the property in dispute would have to be considered.
Thus, the courts below were not justified in decreeing the suit by taking recourse to the provisions of Order 15 Rule 1 or 12 Rule 6 C.P.C without recording of evidence or returning a categorical finding regarding the nature of the constructions.
Though, the learned counsel for the defendant-appellant has argued that no evidence regarding nature of construction actually existing on the site is on record and the learned counsel has indicated that it is a fit case for remand under the provisions of Order 41 Rule 23A C.P.C, it is noticed that no grounds for remand are raised in this appeal.
The Supreme Court in the case of Syeda Rahimunnisa Vs. Malan Bi ; 2016 (10) SCC 315 observed as follows:
"It is a settled principle of law that in order to claim remand of the case to the trial court, it is necessary for the appellant to first raise such plea and then make out a case of remand on facts. The power of the appellate court to remand the case to the subordinate court is contained in Order 41 Rules 23, 23-A and 25 CPC. It is, therefore, obligatory upon the appellant to bring the case under any of these provisions before claiming a remand. The appellate court is required to record reasons as to why it has taken recourse to any one out of the three Rules of Order 41 CPC for remanding the case to the trial court. In the absence of any ground taken by the respondents (the appellants before the first appellate court and the High Court) before the first appellate court and the High Court as to why the remand order in these cases is called for and if so under which Rule of Order 41 CPC and further in the absence of any finding, there was no justification on the part of the High Court to remand the case to the trial court. The High Court instead should have decided the appeals on merits. We, however, do not consider it proper to remand the case to the High Court for deciding the appeals on merits and instead examine the merits of the case in these appeals."
Therefore, this Court has proceeded to decide this second appeal on its merits.
The construction/erection made by the defendant-appellant on the demised land and existing on the property in dispute having been held by this court as permanent in nature and the aforesaid lease deed dated 28.2.1969 permitting raising of such structure, on coming into force of the U.P. Act No.28 of 1976 on 5.7.1976 whereby Section 29A was inserted in U.P. Act No.13 of 1972, the defendant-appellant became a statutory tenant and the benefit of Section 29A would be available to the defendant-appellant, thereby barring the suit for eviction of the defendant-appellant except on the ground specified in Section 20 of the U.P. Act No. 13 of 1972. The tenancy of the defendant-appellant is protected from termination by efflux of time.
CONCLUSION This second appeal is, accordingly, allowed in view of the substantial questions of law answered above. The judgements and decree of both the courts below are set aside.
Needless to add, under the provisions of sub-section (5) of Section 29A of the U.P. Act No. 13 of 1972, it is open for the plaintiff-respondent to move the authorities concerned for determination of the annual rent. No order as to costs.
Order Date :31.10.2019 sfa (Jayant Banerji, J.)