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1990 DIGILAW 240 (CAL)

Sri Sri Iswar Ganesh Jiu v. Austin Distributors (Pvt. ) United

1990-06-07

Lilamoy Ghosh, Pabitra Kumar Banerjee

body1990
JUDGMENT L. M. Ghosh, J. The decision of this second appeal depends upon a decision of a short but crucial point whether the tenancy in question should be governed by the Transfer of Property Act or by the West Bengal Premises Tenancy Act, 1956. 2. There was a lease of the suit premises for a period of ten years, expiring on the 31st of January, 1957. The defendant was a lessee by the original lease. In the original lease deed, there was a clause for renewal of the lease for a further period of ten years. It was stated that the defendant in due course, exercised the option of renewal and thus the lease stood extended for a further period of 10 years expiring on the 31st of January, 1967. It is of course an admitted case that no separate lease was executed for the extended period. The plaintiffs filed the suit on the ground of expiry of the extended period of the lease after its renewal. It was also pleaded in the plaint that the suit premises were required by the landlords for building and rebuilding. A notice of eviction was also alluded to in the plaint. 3. The defence contention was that the tenancy in his favour was continuing and operative. That the plaintiff, required the suit premises on the ground of building and rebuilding was also repudiated. 4. The learned Subordinate Judge did not accept the case of the plaintiff; as regards reasonable requirement for the purpose of building and rebuilding. But he held that the tenancy in question was governed by the T.P. Act and by efflux of time, the tenancy stood determined. On that finding, he granted decree for recovery of possession. 5. On an appeal from that judgment and decree before the District Judge, the mailer came up for disposal by the learned 3rd Court of the Additional District Judge, Alipore. The learned Additional District Judge, disposing of the first appeal, accepted the finding of the trial court that the plaintiff failed to establish their alleged requirement of the suit premises for the purpose of building or rebuilding He, however, was of the view that the tenancy in question come to be governed by the W.B.P.T. Act and so the same could not come to an end by efflux of time merely. As according to the learned Additional District Judge, the tenancy was governed by the W.B.P.T Act and as the ground of requirement for building and rebuilding was not established, the learned Additional District Judge allowed the appeal and dismissed the suit. The cross-objection filed by the plaintiffs against the finding of want of reasonable requirement was dismissed. 6. This second appeal has been preferred against the judgment and decree of the learned Additional District Judge, dismissing-the plaintiffs' suit. 7. It is clear that the only point that survives for consideration in this appeal is whether the tenancy is governed by the T.P. Act or by the W B.P.T. Act. It is concluded by concurrent findings of fact, based on sound materials, that the plaintiffs could not prove the ground of requirement for building and rebuilding. So that, if the tenancy be governed by the P. T. Act, the suit must fail, the only ground within the WBPT Act not having been established. But if, on the other hand, the tenancy be governed by the T. P. Act, the plaintiffs' suit must succeed, as the tenancy must stand determined by efflux of time. 8. Mr. Mukherjee, the learned Advocate for the appellants, has contended strenuously that the tenancy must be governed by the T P. Act, as both the terms of the original lease and the terms of the extended lease by virtue of the renewal clause must be added up. He has cited a number of decisions in support of his contention. 9. Mr. Dasgupta, the learned Advocate appearing for the respondent, has, on the other hand, argued seriously that the tenancy must be governed by the WBPT Act, because the adding up process is not justified. Mr. Dasgupta has also relied upon a number decisions. 10 It would be obvious that if the period for the extended lease be not added to the period fixed by the original lease then the tenancy in question must be governed by the WBPT Act. For the original lease was for a period of ten years and if the subsequent period of ten years be considered as a fresh lease, the tenancy cannot be taken out of the ambit of the West Bengal Premises Tenancy Act. If, however, we add ten years to the original period, then it would go outside the mischief or benediction of the West Bengal Premises Tenancy Act. 11. If, however, we add ten years to the original period, then it would go outside the mischief or benediction of the West Bengal Premises Tenancy Act. 11. We may start first with what would be the natural and grammatical meaning of the word "renewal". It would appear that the word "renewal" itself suggests that it is something new, because the word "re" appears in collocation with the word "new". That is to say, it would mean even at first sight that it becomes new though there is a link with the past. It is, as if, the old spirit dwells a new body. If so, we would be concerned with the new body or the new structure. It is true that there should not be any exclusive concentration on grammar, but then the ordinary and natural meaning should also not be ignored, unless a contrary meaning is conveyed by the Act itself. The Act has not amplified as to what renewal would mean. Such being the position, the natural and normal meaning should be given to the word "renewal", In Mozley & Whiteby's Law Dictionary (9th Edition) page-279 renewal of lease has been interpreted as a re-grant of an expiring lease for a further term. In Stroud's Judicial Dictionary, Volume-IV(4th Edition) page 2321, it is observed that renewal of a tenancy means an agreement for a fresh tenancy following on the termination of the earlier one. Again in Wharton's Law Lexicon (13th Edition), page 738, renewal of lease has been described as a re-grant of an expiring lease for a further term. These text books suggest that renewal of lease connotes re-grant or fresh lease. 12. Mr. Mukherjee, the learned Advocate for the appellants, has relied on certain decisions. Of the several decisions cited by him, we can at once notice that some of them have got no bearing. The case reported in AIR 1972 SC 819 is regarding the position of a tenant remaining in possession after the determination of the lease. It is observed that under the common Jaw, he is a tenant by sufferance. We are not concerned with such a case. Ram Kumar's case reported in AIR 1952 SC 23 has also got no bearing. That is regarding the position that flows when a lease for ten years becomes inoperative under law. It is observed that under the common Jaw, he is a tenant by sufferance. We are not concerned with such a case. Ram Kumar's case reported in AIR 1952 SC 23 has also got no bearing. That is regarding the position that flows when a lease for ten years becomes inoperative under law. Acceptance of yearly rent would make it a tenancy from month to month by implication of law. This is also not the point in this appeal. The case reported in AIR 1949 Privy Council 90, also cited by Mr. Mukherjee, has no application. In that case, the covenant for renewal was held bad ab initio. That has nothing to do with the point involved in this case. Mr. Mukherjee however, has relied on seriously on the decisions reported in AIR 1977 Col 226, 68 CWN 1036, 88 CWN 127 and 1988 (II) CHN 139 . We would now be examining what was the principle enunciated in those decisions'. Coming to Syid Ali Kaiser's case reported in AIR 1977 Cal. 226 , we notice that this case is distinguishable from our case in hand. There, a lease for fifteen years in respect of premises for showing cinema films was granted. There was a renewal clause for renewal of the lease for a further period of one year. It was held that exercise of the option for renewal did not constitute a fresh lease for one year. Such lease was outside the provisions of the W.B.P.T. Act by virtue of s.3(l)(b) of the Act. The distinction is obvious there, even the original lease for fifteen years was outside the scope of the W.B.P.T. Act and the renewal of the lease for a further period of one year could not bring it within the ambit of the Act. That is to say the same position as under the original lease continued even after the option of renewal was exercised. If this ratio is followed in this case, it would rather support the case of the respondent. As per the original lease in this case, the tenancy came to be governed by the W.B.P T. Act and the subsequent renewal could not alter that status or position. So also the case of Bank of India reported in 88 CWN 127, cannot support the contention 0n behalf of the appellants. As per the original lease in this case, the tenancy came to be governed by the W.B.P T. Act and the subsequent renewal could not alter that status or position. So also the case of Bank of India reported in 88 CWN 127, cannot support the contention 0n behalf of the appellants. There also the premises were let out by a registered lease far sixteen years with option of renewal for three years mare. It was far non-residential purposes. It was held that the bank was tenant under a lease executed before 1965 far a period of mare than 16 years and s.3 of the WBPT Act applied and the bank was not entitled to the protection of the said Act. In this cited case also., from the very inception, the lease was outside the boundaries of the WBPT Act. Here, in the case in hand, from the very beginning the lease was within the ambit of the WBPT Act So, by the ratio. of the decision cited in the Bank of India's case, the original position could not be changed by the renewal of the lease. Mr. Mukherjee, the learned Advocate has also very seriously relied upon Satadal Basini’s case reported in 68 CWN 1036. Once again, we are of the view that the ratio of that decision is not one which supports the appellants' case here. There, a tenant under twenty years' lease with a renewal clause continued in possession after the expiry of the said lease. It was observed that her continuance of possession would be deemed to be under the renewal clause though there might not be any express exercise of the said renewal. Such lease would be outside the mischief of Clause (b) of s. 2(5) of the Calcutta Thika Tenancy Act. Here again as per terms of the original lease itself, the lease was from the very beginning outside the scope of the Thika Tenancy Act. In such circumstances Their Lordships held that the renewal was referable to the original lease and the status could not be changed by the subsequent renewal. Here again as per terms of the original lease itself, the lease was from the very beginning outside the scope of the Thika Tenancy Act. In such circumstances Their Lordships held that the renewal was referable to the original lease and the status could not be changed by the subsequent renewal. No. doubt in one part of the judgment it is observed that the holding under the said further lease would be a holding under the original lease, which, in effect, would be a lease for the entire term including the option period, but that was in the context of determining the status of the tenant as flowing from the original lease. The adding up process was not needed and nowhere it is observed that adding lip was done to determine the status of the tenant. In fact in none of the cases discussed, adding, up was needed. The next case cited is Madanlal (Nandalal ?) case reported in AIR 1962 Cal. 597 and we find that this decision also does not lay down a proposition that far determining the status of a tenant, adding up is called for. In that case, it was observed that, it was the lease that was renewed with all the terms and conditions contained in the documents of lease which are not inconsistent with the annual tenancy. That was in connection with the terms and conditions of the document of lease and not far computing the period by adding up. That decision also does not help the appellants. 13. Last of all Mr. Mukherjee has relied upon the decision in Pravin Chandra's case reported in 1988(II) CHN 139 That decision seemingly supports the contention put forward on behalf of the appellants. There, there was a lease far ten years with a right of option of the defendant for five years more. It was held that the lease in the case which originally was for ten years became one for fifteen years after the exercise of the option of renewal by the respondent no.1 and was not governed by the Calcutta Thika Tenancy Act. But in so concluding, Their Lordships relied upon the decision in Syed Ali Kaiser's case AIR 1977 Cal 226 (supra) and in Satadal's Basini's case 68 CWN 1036(supra). But in so concluding, Their Lordships relied upon the decision in Syed Ali Kaiser's case AIR 1977 Cal 226 (supra) and in Satadal's Basini's case 68 CWN 1036(supra). We have pointed out that Syed Ali Kaiser's case and Satadal Basini's case are no authorities for the principle that for determining the status of a tenant, adding up could be resorted to. Rather, the contrary position is suggested by the authorities cited before. As the decision reported in 1988 (II) CRN 139 is based upon the earlier decisions, and as such earlier decisions rather support a contrary view, Pravin's case (1988(II) CRN 139) cannot be relied upon for the purpose of disposal of our case. But there are stronger grounds for not relying upon the decision reported in 1988(II) CRN 139. These grounds are furnished by the clear observations of the Supreme Court in Delhi Development Authority's case, reported in 19732 SC Cases 825, cited by Mr. Dasgupta, the learned Advocate for the respondent. In that case, the Supreme Court has clearly laid down that a renewal of a lease is really the grant of a fresh lease. It is further observed that it is called a renewal simply because it postulates the existence of a prior lease which generally provides for renewals as of right. It is also laid down clearly that in all other respects it is really a fresh lease. The case before the Supreme Court arose out of somewhat different facts. There, there was a lease in favour of the plaintiff for 90 years at an annual rent of Rs.365/-. There was a clause of enhancement of rent on renewal. The plaintiff filed the suit for declaration that the annual rent could not be increased 'during the subsistence of the lease. Their Lordships of the Supreme Court have observed in that context that the initial term of lease of 90 years cannot coexist with the renewal of that very lease within 90 years. Thus, it is noticeable that the facts in that case were somewhat different from the facts of our case, but the very general broad and unambiguous observation made by the Supreme Court as to the nature of a renewal of the lease are to guide all the courts and must have binding effect on all the courts. Thus, it is noticeable that the facts in that case were somewhat different from the facts of our case, but the very general broad and unambiguous observation made by the Supreme Court as to the nature of a renewal of the lease are to guide all the courts and must have binding effect on all the courts. The observations made by the Supreme Court were also very relevant for the purpose of disposal of the matter. We know that even the obiter dictum of the Supreme Court is binding on all courts. These observations of the Supreme Court, laying down the guidelines as to the nature and character of renewed lease, were not considered in Pravin's case (1988(II) CWN 139). Upon the authority of the principles enunciated by the Supreme Court in Delhi Development Authority's case 19732 Supreme Court Cases 825 (supra),' we hold that in this case the renewal of the lease must be considered a fresh lease. If so, the subsequent lease for ten years on renewal of the original lease, cannot go outside the scope of the WBPT Act, although the renewal must be referrable to the terms of the original lease. The status of the tenant must also be determined on that basis, and not by adding up. -We may aid that if adding lip process is adopted, it would lead to an incongruous position. Evidently, the original lease for ten years was within the purview of the WBPT Act. If there was no renewal, there could not be any question of its not being governed by the W.B.P.T. Act, If, however, there is a renewal, and that period for the renewed lease is added up then from the very' inception, the tenancy would, be as if, outside the purview of the W.B.P.T. Act. The status of a tenant cannot depend upon such a fortuitous and uncertain circumstance. 14. Mr. Dasgupta, the learned Advocate for the respondents has also referred to some other decisions. Basanta's case reported in 26 CWN 711 has been relied upon by Mr Dasgupta, That case has not get any direct bearing, because there was an agreement dated 2.1.20 For lease for three years with effect from 16.1.20. After the Rent Act came into force on the 5th of May, 1920, the tenant claimed tenancy at a reduced rent and filed an application before the Rent Controller. After the Rent Act came into force on the 5th of May, 1920, the tenant claimed tenancy at a reduced rent and filed an application before the Rent Controller. The Rent Controller made the impugned order on 25.4.21. In that context, it was observed that the option for renewal for a further period of three years after the expiration of the first three years did not make the lease one for five years and upwards within the meaning of s. 4 sub-so (3) of the Rent Act. It is noticeable that the application before the Rent Controller was made even before the expiry of the original lease. That was a different situation and cannot apply to the facts of our case. Then Mr. Dasgupta has cited the case reported in 16 CLJ 217. There it is observed that if the option does not state the terms of the lease, the new lease will be for the same period and on the same terms as the original lease. The facts of the decision may not be similar to the facts of our case, but we can only take note of the observation that the lease on renewal is called as a new lease. 15 After analysing the ratio of the different cases and on the strength of the authority of the observations of the Supreme Court in Delhi Development Authority's case, we reiterate that for determining the character of the tenancy, we cannot add ten years to ten years of the original Lease Deed The lease on renewal must be considered as a fresh lease for the purpose of computation of the period. If we cannot adopt the process of adding up the subsequent lease remains a lease well within the Purview of the W.B.P.T Act. That being the position, the plaintiffs cannot get any decree for ejectment, as the ground of building and rebuilding was not proved. Under the Act, no decree for ejectment can be passed, except on specified grounds. That being the position we find that the judgment of the First Appellate Court, dismissing the suit, is quite sound and must be affirmed. 16. We, accordingly, dismiss the appeal but do not make any order for costs at any stage. The judgment and decree of the learned First Appellate Court are hereby affirmed, but the parties to bear their own costs throughout all the stages. 17. 16. We, accordingly, dismiss the appeal but do not make any order for costs at any stage. The judgment and decree of the learned First Appellate Court are hereby affirmed, but the parties to bear their own costs throughout all the stages. 17. An application has been filed on behalf of some of the respondents, namely, Raisundari Seal and Smt. Rekha Dutta for permission to withdraw their one-sixth share of the rent deposited in the 9th Court of the Subordinate Judge, 24-Parganas, Alipore, by Austin Distributors Private Ltd. in T.S. No. 53 of 1967 in respect of premises No. 173, Lower Circular Road, now known as 173, Acharya Jagadish Chandra Bose Road. This application has been moved by the learned Advocate, Mr. Subhas Chandra Karar, appearing for the respondents 2 to 5. The application, however, has been moved 'only on behalf of Raisundari Seal and Smt. Rekha Dutta (Respondents 4 and 5). On behalf of the appellants, an affidavit has been filed supporting the claims of the respondents, Rekha Dutta and Raisundari, to withdraw the amount. Mr. Mukherjee, the learned Advocate for the appellants, however, has submitted in Court that a general order may be passed for allowing the entire body of the landlords to withdraw 50% of the amount in deposit, keeping the balance 50% for payment of taxes, etc. Mr. Dasgupta, the learned Advocate for the Respondents Tenants, Austin Distributors Private Ltd., has opposed this application for withdrawal. An affidavit in that connection has also been filed. In paragraph 4 of the affidavit, it is set out that the deceased Sambhu Nath Seal and Raghu Nath Dhar and Biswanath jointly entered into an agreement with the Austin Distributors Private Ltd. to sell their shares in the disputed property for a consideration of Rs. 10 lakbs and in terms of the said agreement, a sum of Rs. 50,000/- was paid by cheque. We are of the view that the objection on behalf of the defendant tenant is not tenable, because the matter of a separate agreement has nothing to do with the scope of this suit. Whether or not Rs. 50,000/- has been paid in pursuance of a contract, and whether that contract can be enforced, would be a matter of a separate proceeding. Mr. Dasgupta's contention in this regard is rejected. We, however, feel that as suggested by Mr. Whether or not Rs. 50,000/- has been paid in pursuance of a contract, and whether that contract can be enforced, would be a matter of a separate proceeding. Mr. Dasgupta's contention in this regard is rejected. We, however, feel that as suggested by Mr. Mukherjee only 50% of the amount in deposit may be withdrawn by the entire body of the landlords and the balance be kept in deposit for the purpose of payment of arrear taxes etc. We dispose of the application for withdrawal along with the objections and the affidavits in connection therewith, by directing that the entire body of the landlords can withdraw 50% of the amount in the 9th Court of the Subordinate Judge, 24-Parganas, Alipore, in Title suit No 53 of 1967. Pabitra Kumar Banerjee, J.: I agree. Appeal dismissed; decree of the lower appellate court affirmed.