Sita Devi vs Chandra Singh

S.N. Mullick, J.—This Revisional application u/s 115 of the CPC has been preferred by the Plaintiff-Petitioner against the Order dated February 9, 1996 passed by the learned Additional District Judge, 2nd Court, Nadia in Misc. Appeal No. 86 of 1995 affirming the order of the learned Assistant District Judge, 2nd Court at Krishnagar, Nadia passed in Title suit No. 5 of 1995 dismissing the Plaintiff-Petitioners prayer for temporary injunction and allowing the Defendant-opposite party's prayer for temporary injunction in respect of the disputed property.

The facts of the case in short are as follows:

The disputed property consists of a brickfield known as M/s. Ajanta Brick Manufacturing Company, in Mouza 54, Majherchar, P.S. Kalyani, District Nadia of an area of 14.94 acres comprising the brick-klin, office house, labour quarters etc. taken in lease by the Plaintiff-Petitioner from the defendanant-opposite party No. 1 by registered deed dated July 18, 1990 for a period of five (5) years renewable at the option of the Petitioner for a same tenure and on the same terms and conditions with 5% increase of the present annual rent, provided necessary notice is given in writing to the lessor before six months of expiry of each term (vide clause Nos. 5 and 7 of Deed of Lease, Annexure A to the instant application). Under Clause 6 of the said Deed of Lease the tenant on the lessee, i.e. the present Petitioner on the final termination of lease unless renewed shall be entitled to remove such removable fixtures and assets and equipments as he might have put up. It is undisputed that no such notice in writing was given to the lessor by the present Petitioner for renewal of the lease within six months before the expiry of such lease as stipulated in the Deed of Lease but according to the Petitioner as alleged in the plaint she made a verbal request to the Defendant No. 1 on July 8, 1994 when the Defendant No. 1 visited the house of the Petitioner to receive rent under cheque No. OGM-582967 for Rs. 10,000 and he agreed to renew the lease on 5% increase rent. Again, on January 15, 1995 the Petitioner approached the Defendant No. 1 for such renewal and the latter agreed to renew the same. But ultimately the Defendant-opposite party No. 1 turned down such request and the Petitioner issued a letter dated April 10, 1995 under registered post requesting him to renew the lease for another term. It is also the case of the Petitioner that for the said purpose she sent a cheque of Rs. 10,500 to the Defendant No. 1 under No. 131094 dated July 12, 1995 drawn on Punjab National Bank, Halisahar branch by registered post with A/D dated July 12, 1995. As the Defendant No. 1 and his grandsons Defendant Nos. 2 and 3 were threatening the Plaintiff-Petitioner to dispossess her leasehold property. The aforesaid suit was filed in the trial Court for declaration that the Plaintiff is a tenant in the leasehold properties by holding over and for permanent injunction. After filing the suit the Plaintiff-Petitioner filed the application for temporary injunction restraining the Defendants from dispossessing her from the disputed brick-field and from causing any disturbance to her peaceful possession and running of the brick manufacturing business. The trial Court initially issued an interim order of injunction, but after hearing the application on merits together with the objection filed on behalf of the Defendants dismissed the Plaintiff's petition for temporary injunction by its order dated November 25, 1995. In the meantime the Defendant-opposite party also filed an application for temporary injunction against the present Petitioner in the trial Court which the trial Court allowed by the same order dated November 29, 1995 and restrained the Plaintiff and her agents from manufacturing bricks in the suit property and from lifting and/or recovery of any bricks or brickbats from there till the disposal of the suit. On appeal preferred by the present Petitioner, the learned Appeal Court dismissed the Misc. Appeal by the impugned order dated February 9, 1996 thereby affirming the order of the trial Court.

The trial Court while dismissing the Plaintiff's prayer for temporary injunction was satisfied that there was no renewal of the lease as per terms settled in the Deed of Lease and as such the trial court came to the conclusion:

thus, the status of the Plaintiff as it appears to me prima facie a tenant by sufferance, i.e. a trespasser, who of course cannot get ad interim relief against the rightful owner for continuing the work.

the learned trial court came to this conclusion while referring to clauses No. 5 and 7 of the Deed of Lease. The trial Court's finding on the balance of convenience and inconvenience was also against the Petitioner. As it appears from the trial Court's judgment a case of holding over as provided u/s 116 of the Transfer of Property Act was sought to be made out. But before the Appeal Court the case of holding over has not been pressed on behalf of the Petitioner Appellant (vide paragraph 3 page 9 of the certified copy of the impugned order). There stress was given on possession on the basis of renewal clause. The learned appeal court also after hearing both the parties and considering the materials on record and referring to the case laws as cited before him by the learned Advocates for both the parties concurred with the finding of the trial Court that the Plaintiff-Petitioner has failed to prove any prima facie case so as to entitle her to get an order of temporary injunction. The appeal Court came to a finding that the impugned lease was not renewed as the Plaintiff-Petitioner failed to prove prima facie that she had complied with the condition provided under Clause 5 of the lease deed for the purpose of such renewal. The learned Appeal Court was also of the view that for the purpose of renewal a fresh registered deed or document was required u/s 107 of the Transfer of Property Act which was also wanting. The Appeal Court also came to the conclusion that although the Petitioner is in possession of the disputed property there was no legal foundation of the same inasmuch as there was no renewal of the lease. It may also be recalled at this juncture that the case of holding over as alleged in the plaint was abandoned before the appeal Court while hearing the temporary injunction matter in the said Misc. appeal. Accordingly the appeal court was also of the view that the Plaintiff-Petitioner having no right title or interest in the suit property is not entitled to seek for any temporary injunction against the Defendant No. 1, the lessor who is the rightful owner.

Shri Roychowdhury appearing for the present Petitioner has vehemently attacked the impugned order on many points with the help of reported cases and Shri Roychowdhury has tried to re-open the question of fact as decided by the Courts below but it must be noted that this scope of Section 115 of the CPC is very limited. The finding of fact made by the trial Court and the appeal court, however, erroneous, cannot be interfered with u/s 115 of the CPC unless it can be shown that by passing the impugned order the court below has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity and under the proviso to Section 115 such order of the subordinate court cannot be varied or reversed by the High Court except where the order if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceeding, or, the order if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made. So, within the above parameters as provided u/s 115 of the CPC it has to be seen whether the impugned order passed by the Appeal Court should be interfered with. The first contention of Shri Roychowdhury is that so far as the renewal clause is concerned, time was not the essence of contract and in this connection he has referred to a decision of the Supreme Court reported in Caltex (India) Ltd. Vs. Bhagwan Devi Marodia, This case has also been referred to by Shri Banerjee the learned advocate appearing for the opposite parties. According to Shri Banerjee, and in my opinion he is right to say so, the above decision of the Supreme Court does; not at all help Shri Roychowdhury to bring home his point. The Supreme Court has held as follows:

At common law stipulations as to time in a contract giving an option for renewal of a lease of land were considered to be of the essence of the contract even if they were not expressed to be so and were construed as conditions precedent. Equity followed the common law rule in respect of such contracts and did not regard the stipulation as to time as not of the essence of the bargain. *****. The reason is that a renewal of a lease is a privilege and if the tenant wishes to claim the privilege he must do so strictly within the time limited for the purpose.

In the facts and circumstances of the case the Supreme Court is of the view that a lessee not having exercised the option of renewal within the time limited by the Clause appearing in the agreement is not, therefore, entitled to a renewal. The Supreme Court observes:

We are of the opinion that the stipulation as to time in Clause 3(c) of the indenture of lease dated February 17, 1954 should be regarded as of the essence of the contract, the Appellant not having exercised the option of renewal within the time limited by the clause is not entitled to a renewal.

Shri Roychowdhury has, however, tried to salvage the Petitioner's case by referring to para. 6 of the said reported judgment of the Supreme Court, But the observation made by the Supreme Court there referring to a case where no time is fixed for the purpose of renewal is not applicable to the present case. In the instant case specific time limit has been provided for such "renewal-in Clause 5 of the Lease-Deed. At the time of hearing much reference has been made by Shri Roychowdhury to the Petitioner's attempt to renew the lease by making verbal request to the Defendant No. 1 and also to her registered letter sent to the Defendant No. 1 along with a cheque at enhanced rate as stipulated in Clause 7 of the Deed of Lease. But the admitted fact is that no renewal was prayed for in writing within the time limit prescribed in Clause 5 of the Lease-Deed. So, the subsequent conduct of the Petitioner in the matter of getting renewal of the lease, in my opinion is of no avail for the purpose of the present petition or for the purpose of getting an order of temporary injunction. Furthermore, it must also be borne in mind that the title suit brought by the Plaintiff-Petitioner against the Defendants in respect of the suit property is for a declaration that she is a tenant in the leasehold properties by holding over. The story of holding over has been abandoned by the Plaintiff before the Appeal Court while hearing out of the injunction matter. Shri Roychowdhury has admitted in all fairness that the case of holding over is not sustainable inasmuch as none of the conditions of holding over as required u/s 116 of the Transfer of Property Act have been fulfilled in the present case. Shri Banerjee appearing for the opposite parties has submitted that the Defendant No. 1 has never accepted rent from the Petitioner after the expiry of the lease and he has never consented to her continuing in possession of the leasehold property after the expiry of the lease.

Shri Roychowdhury has also admitted that there is no material on record to show that rent at enhanced rate as stipulated in Clause 7 of the Lease-Deed was sent or tendered to the opposite party-Defendant No. 1 by any cheque accompanying a registered letter as alleged in the plaint and that the same was accepted by the opposite party-Defendant No. 1. Under the circumstances I find little scope to interfere with a concurring finding of fact made by the courts below. Shri Roychowdhury has also referred to a decision of the Calcutta High Court reported in Dutta and Associates and Anr. v. State of West Bengal and Ors. AIR 1982 Calcutta 225 and has submitted that as laid down by the Supreme Court in the aforesaid case the present Petitioner should also be deemed to continue her possession of the leasehold properties under the renewal clause though there was no expressed exercise of the said renewal clause. The aforesaid reported decision in my opinion has no application to the instant case. The aforesaid case was in respect of a tea garden belonging to the Government of West Bengal and in the Lease-Deed there was a clause giving option to the lessee to have renewal of this lease for a period of 30 years and to renewals for similar period for perpetuity subject to the rules and the terns and conditions of this lease and to such clause as the Government may from time to time found it necessary to add on the renewal of a lease etc. The judgment of the Supreme Court reported in Caltex (India) Ltd.(Supra,) was not at all considered in this case and it was not also the issue whether the time was the essence of the contract. Shri Roychowdhury has also referred to a decision of the Patna High Court reported in Subodh Gopal Bose v. Province of Bihar and Ors. AIR 1950 Patna 222 and has argued that if the Petitioner who is in possession of the suit property consisting of brick-klin etc. is asked to remove those things during the pendency of the suit she. will suffer irreparable loss and injury. The decision of the Patna High Court in the aforesaid case is not applicable to the present case. In the present case opposite party-Defendants have not come with any prayer directing the Plaintiff-Petitioner to remove her plants and machineries brick-bats etc. from the brickfield. On the other hand, on the prayer of the Defendant in their petition for temporary injunction the trial Court has restrained the Petitioner from lifting or removing the brick-bats from the suit property till the disposal of the suit. This part of the trial Court's order which has been affirmed by the Appeal Court in the impugned order has been vehemently challenged by Sri Roychowdhury in this revisional application. Shri Roychowdhury has submitted that under CI. 6 of the Deed of Lease his client is entitled to remove fixtures and assets and equipments from the leasehold land belonging to her. So, the Patna High Court case does not help Shri Roychowdhury on the point of irreparable injury as contended by him on behalf of the Petitioner. Regarding the time being the essence of the contract in the matter of a renewal of a lease as settled by the Supreme Court in Caltex (India) Ltd.( Supra) Shri Roychowdhury has referred to a decision of the Supreme Court reported in Govind Prasad Chaturvedi Vs. Hari Dutt Shastri and Another, This case, also in my opinion is not applicable to the present case before this Court. Relying on this decision Shri Roychowdhury has submitted that the principle enunciated there by the Supreme Court should be made applicable to this case. In the aforesaid case the Supreme Court while deciding on a case of specific performance of contract of sale of an immoveable property has held that the fixation of the period within which the contract has to be performed does not make the stipulation as to time, the essence of the contract. The Supreme Court has observed:

When a contract relates to sale of immoveable property it will normally be presumed that the time is not the assence of the contract.

The present case arises out of a dispute of renewal of a lease and not of a contract for sale of an immoveable property/Accordingly, the Supreme Court's decision which relates to a contract for sale of an immoveable property cannot be and should not be mace applicable to the present case which relates to a dispute regarding renewal of a lease. What is good for sale may not be good for lease Shri Banerjee appearing for the opposite party-Defendants has relied upon a decision of the Supreme Court reported in R.V. Bhupal Prasad Vs. State of Andhra Pradesh and others, and has argued that the possession of the Petitioner in respect of the disputed property is at the best of a tenant at sufferance and is no better than a trespasser even though he is in possession and that as such a trespasser's possession does not deserve to be protected by an order of temporary injunction at least against the rightful owner. In the aforesaid case the Supreme Court has observed as follows:

Tenant at sufferance is one who come into possession of land by lawful title, but who holds it by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. In Mulla's Transfer of Property Act (7th Edn.) at page 633, the position of tenancy at sufferance has been stated thus: A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has been determined, without the consent of the person entitled. A tenancy at sufferance does not create the relationship of landlord and tenant. At page 769, it is stated regarding the right of a tenant holding over thus: The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remaining in possession after the determination of the term, the common law rule is that he is a tenant on sufferance. The expression "holding over" is used in the sense of retaining possession. A distinction should be drawn between a tenant continuing in possession after the determination of the lease, without the consent of the landlord and a tenant doing so with the landlord's consent. The former is called a tenant by sufferance in the language of the English law and the latter class of tenants is called a tenant holding over or a tenant at will. The lessee holding over with the consent of the lessor is in a better position than a mere tenant at will. The tenancy on sufferance is converted into a tenancy at will by the assent of the landlord, but the relationship of the landlord and tenant is not established until the rent was paid and accepted. The assent of the landlord to the continuance of the tenancy after the determination of the tenancy would create a new tenancy. The possession of a tenant who has "ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy, his possession is juridical.

Shri Roychowdhury has referred to para. 13 of the aforesaid judgment and has submitted that in view what has been observed by the Supreme Court as a principle of law his client is entitled to an order of temporary injunction. The observation of the Supreme Court made in para. 13 of the aforesaid case may be quoted below:

In view of the settled position of law, the possession of the Appellant is a tenant at sufferance and is liable to-ejectment in due course of law. But his possession is not legal nor lawful. In other words, his possession of the theatre is unlawful or litigious possession. The Appellant may remain in possession until he is ejected in due course in execution of the decree in the suit filed by the Respondent. His possession cannot be considered to be settled possession. He is akin to a trespasser, though initially he had lawful entry.

But I am unable to agree with Shri Roychowdhury that in view of the above observation of the Supreme Court the Plaintiff-Petitioner should get an order of temporary injunction in respect of the suit property against the present Defendant-opposite parties. The Petitioner's right to remain in the possession of the suit property is to be decided at the time of the hearing of the suit when both the parties will bring forth their evidence before the trial Court. But for the interlocutory purpose there is hardly any reason to favour the Petitioner with an order of temporary injunction which has been rightly refused by both the courts below. Shri Banerjee appearing for the Defendant-opposite parties has referred to another decision of the Supreme Court reported in. Mahadeo Savlaram Shelke and Others Vs. Puna Municipal Corporation and Another, it has been held there that it is settled law that no injunction could be granted against the true owner at the instance of persons in unlawful possession. It has also been held by the Supreme Court in the aforesaid case that in a suit for injunction, the court should enquire on affidavit, evidence and other material placed before the court to find strong prima facie case and balance of convenience in favour of granting injunction otherwise irreparable damage or damage would ensue to the Plaintiff and that the court should also find whether the Plaintiff would adequately be compensated by damages if injunction is not granted. In the present case both the courts below have come to a finding that damage if any if suffered by the Plaintiff for non-granting of temporary injunction can be compensated in terms of money. On that score also I do not find any reason to interfere with the impugned order Shri Roychowdhury has, however, submitted that the case has relied upon for Shri Banerjee is not applicable to the present one. I fail to appreciate his contention why the above principles as laid down by the Supreme Court in the aforesaid case should not be followed by this Court which are material and relevant for the present purpose and are applicable to the present case.

Shri Banerjee the learned Advocate appearing for the Defendant-opposite- parties has submitted with reference to a Supreme Court decision reported in Delhi Development Authority Vs. Durga Chand Kaushish, followed by Madras High Court in a case Hindustan Petroleum Corporation Limited Vs. Vummiddi Kannan, that renewal of a lease is required to be effected by a fresh deed of lease as provided u/s 107 of the Transfer of the Property Act. In other words, the renewed Lease-Deed must also be a registered deed. But in the present case, in my opinion, there is little scope to entertain such plea when the admitted position is that the lease was not renewed in terms of Cls. 5 and 7 of the Lease-Deed.

in view of the above facts and circumstances I do not find any reason to interfere u/s 115 of the CPC with the impugned order so far as the refusal of the prayer for temporary injunction made on behalf of the Petitioner and rejected by both the courts below is concerned. There is nothing to show that by passing the impugned order the Appeal Court has committed any jurisdictional error or has acted in the exercise of its jurisdiction illegally or with material irregularity and that the order if allowed to stand would occasion a failure of justice or cause irreparable injury to the Petitioner so far as refusal of her prayer for temporary injunction is concerned. Shri Roychowdhury has submitted that the trial court was palpably wrong in restraining his client from lifting and recovering the bricks and brick-bats already manufactured by her and lying on the disputed brick-field in terms of Clause 6 of the Lease-Deed. On that score I am of opinion that Shri Roychowdhury is right and his client has every right to lift and recover the bricks or brick-bats manufactured by her and lying there provided she makes an appropriate application to the court below for such lifting or removal under the supervision of a Pleader Commissioner in presence of both the parties or their representatives after making inventory of the names. Shri Banerjee the learned Advocate appearing for the opposite parties has submitted that his clients have no objection to such lifting or removal if made according to law. Accordingly, I dismiss the revisional application with this modification of the impugned order and the order passed by the trial Court that the Petitioner will be at liberty to pray before the trial court by a suitable application for such removal or lifting of the bricks or brick-bats and other things in terms of Clause 6 of the Lease-Deed from the suit property which the learned trial Court should dispose of after hearing both the parties according to law in the light of my observations made above. No order as to costs. The learned Advocates for both the parties are permitted to take note of the operating part of this order for the purpose of communication and compliance.