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Gulam Nabi Zarkob Vs. Gulam Rasool and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Second Appeal No. 36 of 1984
Judge
Reported inAIR1986J& K8
ActsCode of Civil Procedure (CPC) , 1908 - Section 100; ;Transfer of Property Act, 1882 - Sections 105 and 111
AppellantGulam Nabi Zarkob
RespondentGulam Rasool and ors.
Appellant Advocate O.N. Trisal, Adv.
Respondent Advocate S.T. Hussain, Adv.
DispositionAppeal dismissed
Cases ReferredSivayogeswara Cotton Press v. M. Panchak Sharappa
Excerpt:
- .....the courts below have found that there was no renewal clause at the option of the appellant in the lease deed, but the so called renewal clause in the lease deed for renewal of lease period was only a term which would entitle the landlord to receive enhanced rent during the period for which the appellant would remain in occupation of the shop after expiry of the period stipulated in the lease deed and if the appellant would execute a fresh lease deed with the landlord then he could continue his possession over the suit shop.5. mr. s. t. hussain learned counsel for the respondent has raised a preliminary objection to the effect that the question formulated by this court at the time of admission of this appeal was not a substantial question of law which needs determination by this court......
Judgment:

M.L. Bhat, J.

1. This is a civil second appeal. As required under Section 100 of the Amended C.P.C., the following question of substantial importance was formulated by this Court for determination on 26-12-1984 when the appeal was admitted : --

'Where the lease provides for a definite period of tenancy with the stipulation that on expiry of this period, the lessee even without the consent of lessor, will have the option to continue in possession of leasehold on payment of enhanced rate of rent, and the lessee in fact, continues in possession of the leased property after the expiry of this period whether such a lease is governed by Section 111 Clause (a) of the T.P. Act.'

2. Two Courts below have decreed the suit against the appellant herein and have passed a decree for ejectment against the appellant, who challenges the said decree in this second appeal on the basis of the substantial question formulated and reproduced hereinabove.

3. The brief facts of the case for determination of this short question are as under : --

4. The shop in suit was let out to the appellant for a period of four years with effect from 27-3-1971 on the basis of a rent note dt. 27-3-1971 registered on 19-7-1971. After the expiry of the period of lease, the appellant had to surrender the possession of the shop and in case he would not surrender the same, he was to remain in possession of it on an enhanced rate of rent, or was to execute a fresh lease in favour of the landlord. The Courts below have found that there was no renewal clause at the option of the appellant in the lease deed, but the so called renewal clause in the lease deed for renewal of lease period was only a term which would entitle the landlord to receive enhanced rent during the period for which the appellant would remain in occupation of the shop after expiry of the period stipulated in the lease deed and if the appellant would execute a fresh lease deed with the landlord then he could continue his possession over the suit shop.

5. Mr. S. T. Hussain learned counsel for the respondent has raised a preliminary objection to the effect that the question formulated by this Court at the time of admission of this appeal was not a substantial question of law which needs determination by this Court. In support of his submission he has relied on a Supreme Court authority viz : Sir Chunilal Mehta and Sons Ltd. v. Century Spinning and ., AIR 1962 SC 1314. A constitution Bench of the Supreme Court was considering substantial question of law in the context of Article 133(1)(a) of the Constitution of India. Their Lordships held that the true test for determining the question as regards it being a substantial question of law would be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for a discussion of alternative views. It is not understandable as to in what manner this authority is pressed into service by Mr. S. T. Hussain in support of his submission.

6. Another authority relied upon by him is Gulabchand Gambhirmal v. Kudilal Govindram, AIR 1952 Madh Bha 149 (FB).The Full Bench of that Court was considering -the desirability of granting leave to appeal to Supreme Court under the provisions of Article 133 of the Constitution and in that case Section 110 C.P.C. as it stood then, was also discussed. The considerations for grant of certificate under Article 133 are different than those which are required to be followed Under Section 100 of the Amended C.P.C.

7. The next authority relied upon by him is Shree Meenakshi Mills Ltd. v. Commr. of Income-tax, AIR 1957 SC 49. This is an authority which Mr. Hussain probably has not read himself. Under Section 66(1) of the Income-tax Act of 1922, the Income-tax Tribunal could only refer for a decision of a Court a question of law. In that context their Lordships have held that they are questions of law for purposes of the I.-T. Act of 1922.

8. The preliminary objection raised by Mr. S. T. Hussain on his own showing does not merit to be considered and he has not been able to project his point methodically and in a proper manner. He while arguing on the preliminary objections was himself confused and when his attention was drawn to AIR 1962 SC 1314 (supra) he at once conceded that his point be considered in the light of the said authority. Substantial question of law has been held to be a question which includes a question on which there is scope for debate and on which there is conflict of opinion. This observation of the Supreme Court must clinch the issue as regards the preliminary objection of Mr. Hussain. The other authorities viz : AIR 1952 Madh Bha 149 (FB) and AIR 1957 SC 49 (supra) have no relevance to the facts of the present case. Therefore, the preliminary objection raised by Mr. S. T. Hussain is overruled

9. Coming to the merits of the case, it is now to be seen as to whether the lease deed contains any renewal clause as contended by the learned counsel for the appellant and as to whether the renewal clause entitles the appellant to remain in continuous possession for such time till he pays the enhanced rate of rent. This question would depend on the true construction of the lease deed itself.

10. It is admitted that the lease deed was initially executed for four years. It was to expire in the end of Mar. 1975. After thatthere is a clause to the following effect : --(Matter in Vernacular Omitted -- Ed)

11; Relying on this clause, Mr. Trisal submits that this will be a renewal clause at the option of the lessee and the lessee had to pay the rent only and he was entitled to remain in possession of the shop for indefinite period. He has relied on an authority of the Calcutta High Court viz : Dutta and Associates v. State of West Bengal, AIR 1982 Cal 225. This is a case which deals with the tenant's possession after expiry of thirty years under the renewal clause, though option was not expressly exercised. It was held that the tenant was holding over. In this case notice Under Section 106 of the T.P. Act as regards agricultural land which requires six months' notice to be served was held to be defective. This authority will not be applicable to the facts of the present case as it is on a different point.

12. Another authority cited by Mr. Trisal is Ramesh Chandra Das v. Atul Chandra Sarkar, AIR 1959 Assam 22. It is for the proposition that whether a lease contains a covenant is always a matter of the construction of the terms and intention of the parties to be gathered from the language of the documents. Where the lessee has exercised option of renewal before expiry of tenancy he was held not liable to be evicted but renewal of the lease was held to be on the same terms on which the original lease was created. From the facts of this case one is constrained to note that this authority is on a different point and is not relevant for the controversy which is raised in the present appeal.

13. H. V. Rajan v. C. N. Gopal, AIR 1961 Mys 29 is an authority in which a renewal clause in the lease deed was held to be an agreement to renew the lease on original terms. But the renewal clause should not be vague and capable of any other meaning. The suit was, however, brought on the basis of the provisions of Mysore House Rent and Accommodation Control Act. Even after expiry of the lease, tenant could acquire status of a statutory tenant. This authority has no application to the facts of the present case.

14. Mrs. R. G. Vakil v. Ramendra Nath Banerjee, AIR 1984 NOC 303 (Cal) is a case on a different point under the West Bengal Premises Tenancy Act and is not relevant for the purposes of this case.

15. Sivayogeswara Cotton Press v. M. Panchak Sharappa, AIR 1962 SC 413 lays down that if land is let out for building purposes and no period is fixed in the lease deed, presumption can arise in favour of permanent tenancy. It was a case in which no period in the lease deed was fixed Therefore, on facts this authority will not apply to the facts of the present case because in the lease deed which is executed between the parties in the present case period of four years is fixed for which the tenancy has to remain in force.

16. The question, therefore, which is to be determined in this case, is whether clause reproduced hereinabove in the lease deed is a renewal clause at the opinion of the appellant and whether it entitles the appellant to remain in possession as lessee even after the determination of the lease on payment of higher rate of rent. The contention of the appellant is that Section 111(a) of the T.P. Act will have no application to the facts of the case and the lease will not be deemed to have been determined by efflux of time in view of the renewal clause which obliges the lessor to allow the lessee to remain in possessin even after the determination of the lease on payment of higher rate of rent.

17. I am afraid that I cannot agree with the submissions made by the learned counsel for the appellant as regards interpretation of Clause of the lease deed which is termed by him as a renewal clause. From the close scrutiny of this clause it emerges that after period of lease if the lessee Without the consent of the lessor continues to remain in possession of the suit shop, he shall have to pay 1 1/2 times rent per season. Per season rent was Rs. 1300/-and in case of his occupation after the period of lease has expired, he is to pay Rs. 1950/-per season or he is to execute a fresh lease deed in favour of the lessor. In the first place this is a clause which foresees that the lessee may remain in possession after expiry of the lease period without the consent of the lessor, therefore, it enjoins upon the lessee to pay enhanced rent because he will be holding the possession of the demised premises without the consent of the landlord. This amount he has to pay for use and occupation of the premises as his possession after the expiry of the lease will be without permission of the lessor. This cannot be termed as renewal clause because his liability to pay enhanced rent isdependant on his possession without the permission of the lessor. For renewal clause lessor must be a party and the renewal clause is to be bilateral and it cannot be unilateral. This clause only safeguards the interests of the lessor to receive amount from the lessee in lieu of the use and occupation of the premises if such lessee continues to be in possession of the premises after the expiry of the lease without the permission of the landlord. Lessee under this clause in the lease deed is also obliged to execute a lease deed with the lessor in case he wants to hold the possession of the premises as a tenant. Lessor has no obligation to respond to the request of the lessee in connection with the execution of a fresh lease deed. So the lessee cannot remain in possession of the premises without execution of the lease deed after the expiry of the lease period. There is no corresponding obligation on the lessor to necessarily execute the lease deed with the lessee even after the expiry of the lease. The condition about the execution of a fresh lease deed is also unilateral and it does not cast any obligation or impose any responsibility on the lessor to allow the tenant to remain in possession and obtain a fresh lease deed from him. As such the contention of Mr. Trisal cannot be accepted and the clause in the lease deed cannot be termed as a renewal clause.

18. Viewed thus, this clause would not entitle the lessee to remain in possession of the premises after the expiry of the lease by. efflux of tune. Admittedly the lease has expired by efflux of time and it stands determined. Provisions of the J&K; Houses and Shops Rent Control Act are not applicable to the present case because the said Act has not been made applicable to Pahalgam where the suit property is situated. Therefore, under Section 111(a) of the T.P. Act, the lessee is liable to be evicted as his tenancy has been determined by efflux of time.

19. In view of the aforesaid discussion, the judgments and decrees of the Courts below cannot be held to be defective in any manner and cannot be interfered with.

20. The result is that this second appeal fails and is hereby dismissed. Parties are left to bear their own costs.


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