JUDGMENT
M.Y. Eqbal, J.
1. This civil revision application has been filed by the defendant petitioner under Section 14 (8) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (hereinafter to be referred to as the ‘said Act’) challenging the judgment and decree passed by the Munsif-111 Patna in Eviction suit No. 67 of 1993 decreeing the plaintiff’s suit for eviction of the defendant from the suit premises on the ground of expiry of lease and also on the ground of personal necessity.
2. The brief facts of the case are as follows:
The plaintiff filed the aforementioned suit for eviction of the defendant from the suit premises on the aforesaid two grounds. The plaintiff’s case is that he is the owner of the suit premises measuring 11 feet 6 inches wide opening on Bari Path and 35 ft. deep, it is stated that there are four following shutters on the suit premises but the defendants uses the entire shop. The defendant was inducted as tenant in the suit shop for a period of 5 years by virtue of registered deed of lease dated 1.3.1988. It was agreed inter alia that the defendant shall pay rent of the suit premises @ Rs, 2, 300/ per month and the period of lease shall be from 1.3.1988 to 28.1.1993 and after expiry of the lease the defendant will hand over the suit premises. The plaintiff’s further case was that on the expiry of the period of lease, the defendant did not take step for renewal of the lease and thereby made himself liable for eviction under Section 11 (i)(e) of the said Act. The plaintiff’s further case is that the plaintiff bona fide requires the suit premises for his personal use and occupation because the plaintiff and his father are Homoeopath Doctor and have gained sufficient experience in the job. Besides, this, the plaintiff’s brother is also unemployed and sitting idle and the plaintiff wants to settle himself and his brother in Homeopathy medicine business in the suit premises. The plaintiff’s further case is that no other suitable site opening on the road is available, except the shop in question. The plaintiff further alleged that a notice dated 25.1.1993 was served on the defendant informing him that he is in need of the shop so the defendant should vacate the same after expiry of the period of lease. When the defendant did not vacate the shop in question on the expiry of the lease the plaintiff again sent a notice on 3.6.1993 requesting the defendant to vacate the premises but this time also the defendant paid no heed to the request of the plaintiff. Hence the suit was filed. The defendant petitioner contested the suit by filing written statement stating inter alia that the suit is not maintainable has got no cause of action for the suit. It was further stated in the written statement that at the time of induction of the defendant as tenant in the pay under pressure a sum of Rs. 1, 50, 000/- as pagri in the year 1983 and a registered deed of lease dated 28.2.1983 was executed. It is alleged that at the time of lease agreement, it was agreed that the lease will continue for 30 years but each lease deed will be for 5 years with a condition that the same would be renewed and the period of tenancy would be extended for a period of 5 years. It is further alleged by the defendant that the first lease was executed on 28.2.1983 for 5 years and on the expiry of that period, the lease was extended for another 5 years by executing another deed of lese on 1.3.1993 containing the same terms and conditions. In terms of the lease deed, the plaintiff was bound to extend the lease for a further period of 5 years. Before the expiry of the lease in 1993, the defendant asked the plaintiff in January, 1993 that he was ready and willing for renewal of the lease for another 5 years. The defendant also intimated the plaintiff by registered notice dated 30.1.1993 expressing his intention of renewing the lease but the plaintiff demanded another sum of Rs. 3, 000, 000/- as pagri and also enhanced the rent and on refusal, of the defendant, the instant suit was filed. According to the defendant he has been continuing possession by virtue of mandatory terms of renewal stipulated in the lease deed. The defendant also denied and disputed the personal necessity so alleged by the plaintiff. According to the defendant, the father of the plaintiff is not dependent upon the plaintiff. He has very flourish Homeopathic practice as well as Godown in Tulsi Market. The plaintiff and his brother Rabindra Sah have been running Homeopathy medicine shop in the well-known area of Sabzibagh which is the best place of sale of the Homeopathy medicine. According to the defendant Tulsi Market where the shop is situated is a good place for shop of Homeopath medicine. The defendant’s further case is that the plaintiff has four storeyed Tulsi Market at Bari Path, Patna in which there are large number of shops and also hospital belonging to the plaintiff. There are several shops lying vacant in his possession and some shops were recently let out to the tenants. If the plaintiff and his brother have any requirement of a shop for starting business in Tulsi Market, they could very well occupy the vacant shop. Lastly, it is pleaded that the whole object of the plaintiff is to get pagri and high rent by evicting the defendant from the shop in question.
3. The learned Court below framed the following issues:
1. Whether the suit, as framed, is maintainable?
2. Whether there is relationship of landlord and tenant between the plaintiff and defendant?
3. Whether the requirement of the plaintiff for the suit premises is reasonable and bona fide ?
4. Whether the lease for fixed period has been expired?
5. Whether the requirement of plaintiff will meet the partial eviction of the suit?
6. Whether the plaintiff is entitled to a decree of eviction against the defendant from the suit premises?
7. Whether the plaintiff is entitled to any other relief or reliefs?
The learned Court below took up Issue Nos. 2 and 4 together and decided these issues in favour of plaintiff. The learned Court below held that there is a relationship between the plaintiff and the defendant. The learned Court further held that there was a fixed-term tenancy for a period of 5 years by virtue of registered deed of lease dated 1st March 1988 and the said lease expired on 28.2.1993. It was further been held that the lease was not renewed after the expiry of that period and, therefore, the defendant is liable to be vacated from the suit premises on the ground of expiry of the period of lease. While deciding this issue, the learned Court below considered the plea taken by the defendant that in view of the renewal clause contained in the lease-deed, the defendant has been continuing possession of the suit premises in part performance of contract under the provisions of Section 53-A of the Transfer of Property Act (hereinafter to be referred to as the ‘T.P. Act’). However, the learned Court below held that the defendant’s possession is not protected under Section 53-A of the T.P. Act, as admittedly, there is no document wherein the plaintiff admitted that he has delivered possession of the suit premises, to the defendant in pursuance of any agreement. The learned Court below further decided Issue Nos. 3 and 5 together in favour of plaintiff holding that the plaintiff requires the suit premises reasonably and in good faith. On the basis of the aforesaid finding, the learned Court below decreed the suit.
4. Mr. Sri Nath Singh learned senior, Counsel appearing on behalf of defendant-petitioner has made a very impressive argument and assailed the judgment and decree passed by the learned Court below as being erroneous and not in accordance with law. The learned Counsel firstly submitted that the judgment and decree passed by the learned Court below on the ground of expiry of the period of lease cannot be sustained in law. The learned Counsel submitted that the learned Court below failed to appreciate the application of Section 53-A of the T.P, Act. While considering this question, the learned Court below overlooked the renewal clause in the lease-deed. Referring to Clause-II of the lease-deed, the learned Counsel submitted that the said clause itself is an agreement whereby it was agreed by the plaintiff that the defendant shall continue possession after expiry of the period of lease deed inasmuch as the lease deed shall be renewed for a further period of 5 years. According to the learned Counsel, on the basis of that agreement contained in the lease deed, the defendant continued possession after expiry of the period of lease in part performance of contract and, therefore, his possession is protected under Section 53-A of the T.P. Act. The learned Counsel then submitted that the said clause, being an agreement, the finding of the learned Court below that an agreement is a condition precedent for the application of Section 53-A of the T.P. Act, is erroneous in law. The second limb of the argument of the learned Counsel is that in terms of the renewal clause, it was the plaintiff two has to take steps for the renewal of the lease. The learned Counsel has drawn my attention to those two clause of the lease agreement and submitted that in the said clause it was specifically stipulated that the step for getting that lease renewed for another period of 5 years after the expiry of the lease will be taken by the less with fresh document. The learned Counsel, therefore, submitted that the renewal clause contained in the lease-deed was not an optional clause rather it was mandatory and therefore, the defendant’s possession shall be deemed to be possession by virtue of that clause and, therefore, Section 53-A of the Transfer of Property Act is attracted and no decree for eviction could be passed under Section 11 (e) of the said Act.
5. On the other hand, Mr. Tara Kant Jha, learned senior Counsel appearing on behalf of the plaintiff-opposite party submitted that a decree for eviction was passed under the provision of Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982, which is a self contained Act and Section 53-A of the Transfer of Property Act (T.P. Act) has no application at all Learned Counsel submitted that after the expiry of period of lease the petitioner’s tenant is bound to vacate the premises in absence of any fresh lease deed or in absence of extension of lease in the manner provided under Section 18 of the said Act of 1982.
6. Before appreciating the submission of the learned Counsel appearing on behalf of the parties it is worth to take notice of Section 18 (Section 12 of the Old Act of 1982) which reads as under:-
18, Extension and period limited by lease-(1) If a tenant in possession of any building, held on a lease for a specified period, intends to extend the period limited by such lease, he may give the landlord at lease one month before the expiry of the period limited by the lease a written notice of his intention to do so and upon the delivery of such notice the said time shall subject to the provision of Section 11 be deemed to have been extended by double period covered by the original lease subject to a maximum of one year only.
(2) Where the landlord to whom notice has been given under Sub-section (1) wishes to object to the extension demanded by the tenant of one or more of the grounds mentioned in Sub-section (1) of Section 11 or on the ground that the sufficient cause for terminating the lease on the expiry of period limited thereby he may within fifteen days of the delivery of such notice, apply to the Court in that behalf and the Court after hearing the parties may terminate the lease or extend the same for such period as it deems proper in the circumstances:
Provided that the tenant shall not in any case be allowed to remain in possession of the building beyond the period permissible under Sub-section (1)
(3) If the tenant fails to vacate the building on the termination of lease or as the case may be on the expiry of the period fixed by the Court under Sub-section (2), the Court shall on an application by the landlord, pass an order for ejectment, which shall be executed as a decree and may further order that the tenant shall pay to the landlord such amount as may be determined by it as daily compensation.
7. Admittedly, in the lease agreement there was a renewal clause. Clauses 2 and 3 of the lease deed reads as under:-
That the terms of tenancy shall be for the period of 5 years beginning from 1st of March, 1988 and ending on the 28th February 93 and on the expiry of the same the tenancy shall be renewed within one month prior to the expiry of the present term for further period of 5 years with fresh document, subject to the fulfillment of all the conditions of the present terms of the tenancy during the continuance.
That the steps for getting the lease renewed for another period of 5 years after expiry of the present lease, will be taken by the Lessor with fresh document.
8. Even assuming that the defendant petitioner sent notice to the plaintiff-1 landlord for renewal of the lease but, in fact no document of lease for a further’ period of 5 years was executed or came into existence. It is also not in dispute that the defendant-petitioner has not moved the Court for extension of the period of lease as contemplated under Section 18 of the said Act of 1982. In view of the admitted position I am of the definite view that after the expiry of the period of lease the defendant’s possesion is not protected by Section 53-A of the Transfer of Property Act (T.P. Act). A similar question arose before a Bench of this Court in the case of Digambhar Narain Choudhary v. Commissioner of Trihut Division and Ors. where their Lordships after interpreting the two provisions of the Act, namely, Sections 12 and 18 of 1982 Act (Section 11 and 12 of 1947 Act) had held as under:-
The combined effect of Sections 11 and 12 of the Act is that unless the period limited by the lease is extended in accordance with the provisions of Section 12, the tenant was liable to be evicted on the expiry of the period of tenancy under Clause (b) of Sub-section (1) of Section 11 of the Act to where, thereafter a tenant occupies a building by virtue of a lease for a fixed term and does not obtain extension of the time in accordance with the provision of Section 12 of the Act, he cannot legally resist the application of the landlord for his eviction on the expiry of the term of the tenancy.
9. It is well settled that renewal of lease is a fresh grant and in view of the fact that if the renewal of lease exceeds a period of one year the such renewal of lease can be created only by a registered instrument and not otherwise. As stated above, no such renewal of lease deed has been executed by and between the parties for a further term of 5 years. The defendant has come within the mischief of Section 11 of the said Act of 1982. I am, therefore, of the opinion that the finding arrived by the learned Court below on the issue of eviction of the defendant on the ground of expiry of the period of lease is in accordance with law. As stated above, under the renewal clause contained in the lease deed there was a specific stipulation that the lease shall be renewed for a further period of 5 years subject to fulfillment of term and conditions by the lessee. There was also a condition that step for renewal of the lease was to be taken by the plaintiff lessor. But before the expiry of the period of lease the plaintiff lessor served a notice upon the defendant expressing his intention not to renew the lease. Admittedly, no step, thereafter, was taken by the defendant petitioner for compelling the plaintiff to renew the lease. In other words, the defendant-petitioner neither moved the Court for specific performance of that part of the agreement nor approached the Court under the provision of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982. I have, therefore, no hesitation in holding that the defendant cannot continue occupation of the suit premises on the ground that his right is protected under Section 53-A of the said Act.
10. So far the finding of the learned Court below on the issue of personal necessity is concerned, I am of the view that there is no perversity in the finding. Learned Court below has considered all the evidence adduced by the parties and found the requirement of the plaintiff to the bona fide and genuineness.
11. For the reason aforesaid, I am of the view that judgment and decree passed by the learned Court below is in accordance with law and warrant no interference.
12. During the course of argument Mr. Singh, learned senior Counsel appearing on behalf of the petitioner submitted that in the event this Court does not find any merit of this civil revision application that the petitioner must be given at least six months’ time to vacate the premises. Mr. Tara Kant Jha, learned Counsel very fairly agreed to the said prayer made by Mr. Sri Nath Singh on instruction of his client. In that view of matter, I direct the defendant-petitioner to vacate the suit premises by 30th August, 1997 and till then decree shall not be executed. During this period the petitioner shall pay to the opposite party a sum of Rs. 1400/- per month for use and occupation of the suit premises. The said amount shall be paid by the 15th of each month. In the event of failure of defendant-petitioner to pay the amount for two months, the plaintiff-opposite party shall be entitled to execute the decree.