IN THE HIGH COURT OF JHARKHAND AT RANCHI
Civil Revision No. 32 of 2008
BATA Shoes Limited, a Public Limited Co.,
having its office at 6A, S.N. Banerjee Road,
Post Box No. 8913, Kolkata-700013 ... Petitioner
Versus
Smt. Reba Gorain and others ... Opposite Parties
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For the Petitioner : Mr. P. K. Mukhopadhyay,
Advocate
For the Opposite Parties : M/s. R. S. Mazumdar,
Rohit Roy & Rajesh Kumar,
Advocates
CORAM : HON'BLE MR. JUSTICE R. K. MERATHIA
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C.A.V. on 24.11.2009 Pronounced on 19.1.2010
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19. 19.1.2010
: This civil revision application has been filed under
Section 14(8) of the Bihar Building (Lease, Rent & Eviction)
Control Act, 1982 (the Act for short) against the judgment and
decree dated 17.6.2008 passed in Eviction Suit No. 8 of 2001
by learned Sub Judge- VI, Dhanbad, whereby the suit for
eviction filed on behalf of the plaintiff- opposite parties
(hereinafter referred as the landlord) has been decreed.
2. The case of the landlord, in short, is as follows. The
husband of the Plaintiff No. 1 and father of Plaintiffs No. 2 to 4,
late D.C. Gorain inducted the petitioner- tenant under a Lease
Deed dated 20.7.1987 w.e.f 1st March 1987 for 10 years in
respect of the shop-suit premises. The lease was renewed for
another 5 years. The tenant has kept the shop closed since
March, 2000. It did not opt for renewal before the lease expired
on 28.2.2002 (Para-4 of the Plaint). D.C. Gorain died on
30.11.2001 which was informed to the tenant by letter dated
31.12.2001. The tenant acknowledging the said letter though
requested the landlord to comply with certain formalities so that
rent could be paid to them, being the heirs of D.C. Gorain; but it
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did not exercise option for renewal; and as such on expiry of
lease the tenant has became liable for eviction. The tenant has
also not paid rent from January, 2002. The landlord also prayed
for leave under Order II Rule 2 of the Code of Civil Procedure
for filing a fresh suit for recovery of rent.
3. In reply to Para-4 of the Plaint, only this much was said
that the tenant got prepared a Draft for rent for the period from
1.1.2002 to 31.3.2002 and sent it to the landlord, but due to
demise of the landlord- D.C. Gorain, it could not be encashed
and when the death was informed by his heirs- the landlords,
they were asked to perform certain formalities and on fulfilling
them the tenant issued draft dated 28.4.2002 against rent
payable from 1.1.2002 to 30.6.2002 which was returned by the
landlord. The landlord never intended or informed to vacate the
premises and the shop was not closed. After death of D.C.
Gorain, the tenant asked the landlord to fulfill the formalities i.e.
preparation of lease deed and execute it and the tenant was
waiting in good faith for the response.
Thus, the assertion of the landlord, that the tenant did not
opt for renewal before expiry of lease, was not denied and
disputed by the tenant. However, it was said that in terms of
clause III of the original lease, the lease continued on month to
month basis, even if the tenant did not opt for renewal.
4. The trial court framed 7 issues. Issue No. 4 was whether
the lease dated 20.7.87 expired on efflux of time and Issue No.
5 was whether the plaintiffs are entitled for eviction on the
ground of expiry of the lease dated 20.7.87. Both these main
issues were taken up together. The trial court decided them as
also the other issues in favour of the landlord and the suit was
decreed with costs directing the tenant to vacate the suit
premises within four months.
5. The only question to be decided in this case is whether
the landlord is entitled to a decree of eviction on the ground of
expiry of lease?
6. Exhibit-1 is the letter dated 19.11.2001 issued by late
D.C. Gorain to the tenant which reads as follows:-
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IMMEDIATE "From: D.C. Gorai.
Land-Lord (Chirkunda Bata Shop)
At & P.O.: Chirkunda
Dist. Dhanbad (Jharkhand)-828202
Date: 19.11.2001
To,
The Manger,
Lease and Rent Department,
Bata India Limited,
6A, S. N. Banerjee Road,
Post Box No: 8913
Pin. Kolkata: 700013
Dear Sir,
Sub: Retail Shop of M/s. Bata India Limited, located at
Chirkunda, Main Market, G.T. Road.
It is with utmost oteslation that I draw your personal attention
to the following details on the above subject requesting for a line of
for the immediate reply.
1. For a considerable long period of the above shop have been
kept closed by you. It has affected seriously on me as the front
spaces of the shop is being gradually occupied by the hawkers and
other Ferry business man. Taking into consideration of the unslable
law and order problems it is not possible for me to involve myself in
quarrel with such trespassers and from the realistic point of view you
are solely responsible for such calamities and difficulties. If your
shop remains closed in this way the vacant spaces in front of the
shop will be out of may hand and it will be possible to evict the
trespassers. If there is no possibility for you to re-open the shop
immediately it is requested that the shop should be vacated and
handed over to me immediately. I request again also to note that my
above shop was leased out to you for the purpose of your business
only and not for keeping it closed sine die.
2. By a reference to clause I of your lease deed bearing the Office
No. LR/Chirkunda/522/13 dt. the 5th February 1997 it may kindly be
seen that the lease period of 5 years will expire on 28th February, 2002
with your option for further renewal.
3. If the shop is kept in the closed condition it will not be possible
for me to do further renewal as the closure of the shop is totally
against public interest.
In view of the foregoing to details I request for your positive
reply within a period of 30 days from the receipt of this letter.
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For this I will remain grateful.
Your faithfully
(D.C. Gorain)
Land-Lord
Bata India Ltd.
Chirkunda Retail Shop.”
7. By the said letter, the landlord expressed displeasure
about the problems created due to keeping the shop closed by
the tenant and informed that the lease was going to expire on
28.2.2002 with option for further renewal, but if the shop was
kept closed, landlord was not agreeable to renewal.
It appears from Exhibit-A produced by the tenant that in
reply to a said letter dated 31.12.2001 sent by the landlord
informing about the death of D.C. Gorain, the tenant asked the
landlord for completing certain formalities so that the rent is
paid to the widow in future, but the tenant did not say anything
about renewal of lease. Therefore, by another letter dated
11.2.2002 (Ext. 1/a), the landlord again expressed displeasure
that the tenant was keeping silent on the said letter dated
19.11.2001 (Ext.-1) and then it was said that if the tenant is not
interested to continue the business, the shop be vacated as the
lease was going to expire on 28.2.2002 otherwise, the lease be
renewed, before it’s expiry; without fail, without which the
tenancy will not be continued.
The tenant has not brought on record any document to
show that option for renewal was exercised by it after receipt of
the said letters-Exhibit-1 and Exhibit-1/a. Exhibit-B is a letter
sent by tenant simply intimating that the tenant will arrange the
rent.
Thus it is clear that the tenant failed to exercise option for
renewal of the lease before its expiry.
8. Now it is to be seen, whether the tenant can be allowed
to rely on clause III of the original lease deed (Ext.-3) to
contend that the lease continued on month to month basis
even if option of renewal was not exercised by it.
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Clause-II and III of the original lease deed (Ext.-3) reads
as follows:-
“II If the Lessee shall be desirous of taking a new lease of
the said premises after expiration of the said term hereby
granted and shall at lease one month before the expiration
thereof signify such intention by a notice in writing to the
Lessor the Lessor shall at or before the expiration of the said
term make and execute at the cost of the Lessee a new and
effectual lease of the said premises hereby demised for a term
of 5 (five) years to commence from and after the expiration of
the term hereby granted at the rent to be mutually settled
between the parties then and subject to like covenants as are
herein contained.
III After the expiry of the lease in case the Lessee does not
exercise its right of entering into a new Lease and also does
not give any intimation of its future intention the tenancy shall
be continued on monthly basis terminable by either party by
giving a calendar month’s notice in writing.”
9. From the combined reading of the said clauses it is clear
that the lease could be renewed if the lessee exercised option
before the expiry of lease , but it could be renewed for a term of
5 years; and if the option was not exercised the tenancy could
be continued on monthly basis terminable by either party by
giving a calendar month’s notice in writing. Thus the intention of
the parties was to renew the tenancy up to a period of 5 years
after expiry of the original period of 10 years. It appears from
Ext.-1 that the original lease was renewed under a lease deed
bearing No. LR/Chirkunda/522/13 dated 5.2.1997. It was for the
tenant to bring on record the aforesaid renewed lease deed
dated 5.2.1997 to show that even after expiry of lease, it
continued on month to month basis. Secondly, even if it is
assumed that such clauses like clause II and III continued in the
renewed lease, such clause III will be contrary to clause II and
will make clause II redundant. It could not be the intention of
the parties that the lease for fixed term will become a monthly
lease even when the lessee does not opt for renewal, in terms
of renewal clause.
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10. The landlord made their intention clear that they are not
willing to renew the lease as the shop in question was kept
closed from March 2000, causing serious problem to the
property, but even then, they asked the tenant repeatedly
whether it wanted to renew the lease or not, but the landlord did
not reply to these letters and did not exercise option for renewal
in writing before the expiry of lease, in terms of the lease. Even
the plea taken in this suit that the lease became a month to
month lease, was not taken by replying to the said letters sent
by the landlord.
11. The case, reported in (2005) 5 SCC 543-Shanti Prasad
Devi and another v. Shankar Mahto and others, is relevant
in the facts and circumstances of this case. It was held, inter
alia, as follows:-
“18. We fully agree with the High Court and the first appellate
court below that on expiry of period of lease, mere acceptance
of rent for the subsequent months in which the lessee
continue to occupy the lease premises cannot be said to be a
conduct signifying “assent” to the continuance of the lease
even after expiry of lease period. To the legal notice seeking
renewal of lease, the lessor gave no reply. The agreement of
renewal contained in clause (7) read with clause (9) required
fulfillment of two conditions: first, the exercise of option of
renewal by the lessee before the expiry of original period of
lease and second , fixation of terms and conditions for the
renewed period of lease by mutual consent and in absence
thereof through meditation of local Mukhiya or Panchas of the
Village. The aforesaid renewal clauses (7) and (9) in the
agreement of lease clearly fell within the expression ”
agreement to the contrary” used in Section 116 of the Transfer
of Property Act. Under the aforesaid clauses option to seek
renewal was to be exercised before expiry of the lease and on
specified conditions.
19. The lessor in the present case had neither expressly nor
impliedly agreed for renewal. The renewal as provided in the
original contract was required to be obtained by following a
specified procedure i.e. on mutually agreed terms or in the
alternative through the meditation of Mukhiyas and Panchas.
In the instant case, there is renewal clause in the contract
prescribing a particular period and mode of renewal which was
“an agreement to the contrary” within the meaning of section
116 of the Transfer of Property Act. In the face of specific
clauses (7) and (9) for seeking renewal there could be no
implied renewal by “holding over” on mere acceptance of the
rent offered by the lessee. In the instant case, option of
renewal was exercised not in accordance with the terms of the
renewal clause that is before the expiry of lease. It was
exercised after expiry of lease and the lessee continue to
remain in use and occupation of the leased premises. The rent
offered was accepted by the lessor for the period of lessee
overstayed on the leased premises. The lessee, in the above
circumstances, could not claim that he was “holding over” as a
7lessee within the meaning of Section 116 of the Transfer of
Property Act.
20. So far as the cross-suit for specific performance of
agreement of renewal of lease filed by the lessee is
concerned , there are concurrent findings of all the courts that
the option for renewal was exercised after the expiry of the
lease period. The Option of renewal exercised was, therefore,
contrary to the terms of clause (9) of the lease agreement. The
clauses of renewal requiring fixation of the terms and
conditions for renewed period of lease mutually or in the
alternative through Village Mukhiya and Panchas are uncertain
and incapable of specific performance. After legal notice of
renewal, the lessor did not send any positive reply and instead
filed a suit for ejectment, therefore, there was no mutual
consent for renewal . The forum agreed to for deciding dispute
was through local Mukhiya and Panchas of the Village. The
renewal clause of the agreement were vague and incapable of
specific performance. The Mukhiya and Panchas were not
named in the agreement and the method of choosing either of
the two forums was not specified.”
12. Furthermore in the case, reported in AIR 1959 Patna 1,
Digamber Narain Chaudhary v. Commissioner of Trihut
Division and others, the Full Bench, inter alia, considered the
combined effect of Section 11 and 12 (equivalent to section 18
of the present Act) of the Bihar Building (Lease, Rent and
Eviction) Control Act, 1947 and held that unless the period
limited by the lease is extended in accordance with the
provisions of Section 12, the tenant is liable to be evicted on the
expiry of the period of tenancy under Section 11; and where
therefore 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 provisions of Section 12 he cannot legally
resist the application of the landlord for his eviction on the
expiry of the term of the tenancy. It was also held therein that
when a tenancy for a fixed period is determined by efflux of
time and the tenant holds over without the consent of the
landlord, the possession of such a tenant becomes wrongful
from the date of the termination of the lease and he becomes
trespasser and has no right to remain in the premises and the
law gives the landlord a right to enter upon the premises
immediately after expiration of the term of lease without any
further notice. It was further held in the said judgment that the
combined effect of Section 11 and Section 12 (now Section 18)
is that where the tenant has not served the landlord a notice
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before expiry of lease intimating his intention to extend the time,
he has no defence to an action of his ejectment.
13. In the present case also, there is no overt act indicating
the landlord’s assent to the continuance of the tenancy rather,
the landlords made their intention clear that they are not willing
to renew the lease, but even then asked the tenant repeatedly
whether it opts for renewal or not. There is nothing to show that
the tenant opted for renewal. Merely sending rent without any
clear notice in writing exercising option for renewal; in terms of
the lease, will not convert the lease for fixed period, into a
month to month lease and the landlord was justified in returning
the rent.
It may be noted here that it is not disputed that the tenant
has kept the shop locked from March, 2000. It is also not
denied by the tenant that due to such closure, the condition of
the building has materially deteriorated and several problems
have been created on the property by the Hawkers, etc. by
occupying the front portion of the shop.
14. After hearing the parties, going through the records and
considering the legal position, I am satisfied that the trial court
has considered the respective cases of the parties and the
materials brought on the record by them and has recorded the
findings, correctly while decreeing the suit. I am also inclined to
grant leave to the landlord in terms of prayer (b) of the plaint for
filing the fresh suit for recovery of rent, etc.
In the facts and circumstances, noticed above, I find no
merit in this civil revision application, which is, accordingly,
dismissed with costs of Rs. 50,000/- besides the cost awarded
in the impugned judgment and decree. The petitioner is
directed to handover vacant possession of the suit premises the
landlord within 30 days from today.
(R. K. Merathia, J)
MK/AFR