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2008 DIGILAW 769 (CAL)

Bengal Steel Industries Ltd. v. Bank of India

2008-08-01

SANJIB BANERJEE

body2008
Judgment :- SANJIB BANERJEE, J. (1) IN this application for summary judgment under chapter XIIIA of the Rules on the Original Side of this Court, the plaintiff in this suit for eviction upon expiry of the lease by efflux of time seeks a decree for eviction against the sub-lessees; the lessee having accepted the expiry and having surrendered that part of the leasehold premises that was under her direct occupation. (2) TWO preliminary points have been taken by the sub-lessees. The first defendant, one of the sub-lessees, says this application is not maintainable as it has not been filed within the window provided by the rules under Chapter xiiia. The first defendant shows that it has filed a written statement and the application was taken out way beyond the time permissible under the rules following the filing of a written statement. The second defendant, the other sub-lessee, says that the subject matter of the claim in respect whereof summary judgment is sought is not covered by the first rule under Chapter xiii- A. (3) THE first defendant refers to Rule 3 as to the timing of an application for summary judgment under the provisions of the Chapter: "3. When application to be made.- Where the defendant in any suit which is within the terms of Rule 1 has entered appearance the plaintiff may, as regards any claim which is within the terms of Rule 1, on affidavit made by himself or by any other person who can swear positively to the facts verifying the cause of action and the amount claimed, if any, and stating that in his belief there is no defence to the claim, apply to the Judge for final judgment for the amount claimed together with interest, if any, or for the recovery of the land (with or without rent or mesne profits) as the case may be and costs: provided that as against any defendant who has filed a written statement such application shall not be permissible unless the summons is taken out as in Rule 4 mentioned within ten days after receipt of notice of the entering of appearance under Chapter VIII, rule 18. " The second defendant relies on Rule 1 (B) to suggest that the nature of the claim is beyond the purview of the Chapter:"1. Nature of cases in which applicable. (A). . . " The second defendant relies on Rule 1 (B) to suggest that the nature of the claim is beyond the purview of the Chapter:"1. Nature of cases in which applicable. (A). . . (B) for the recovery of immoveable property with or without a claim for rent or mesne profits by a landlord against a tenant whose term has expired or has been duly determined by notice to quit or has become liable to forfeiture for non-payment of rent or against persons claiming under such tenant. " (4) CERTAIN dates are relevant to assess the first defendants objection as to the maintainability of the application. On December 12, 2005 the first defendant entered appearance in the suit. On December 19, 2005 the first defendant took out an application being GA No. 3880 of 2005 for extension of time to file its written statement. On December 21, 2005 the plaintiff applied for summary eviction under Chapter XIIIA by way of GA No. 3912 of 2005. On February 6, 2006 the plaintiff applied for amending the plaint by GA No. 386 of 2006 for recording the death of the third defendant lessee and substituting the deceased defendant by her heirs. (5) BY an order dated February 7, 2006, as corrected on February 14, 2006, the first defendants application for extension of time to file its written statement was extended by a period of three weeks from the date of the order. Such order specifically recorded that it would not affect or prejudice the plaintiffs pending application under Chapter XIIIA. It is thus apparent that the order enlarging the time for the first defendant to file its written statement was not on appreciation that the first defendant had a valid defence, but merely a condonation of the delay on the first defendants part and without prejudice to the pending application for summary eviction under Chapter xiiia. The written statement was filed by the first defendant on or about february 17, 2006 and a copy thereof appears to have been forwarded to the plaintiff. (6) THE deceased third defendant was substituted by her heirs upon the application for amendment being allowed by an order of March 16, 2006 and the plaint was thereafter amended and copies thereof made available to the defendants. (6) THE deceased third defendant was substituted by her heirs upon the application for amendment being allowed by an order of March 16, 2006 and the plaint was thereafter amended and copies thereof made available to the defendants. On May 16, 2006 the plaintiff withdrew its earlier application under Chapter XIII-A with liberty to file afresh as is recorded in the order of may 16, 2007. The added defendants, the heirs of the deceased third defendant, entered appearance on January 10, 2007. (7) THE plaintiff applied afresh under Chapter XIII-A on January 17, 2007. The second defendant thereafter sought extension of time to file its written statement by way of G. A. No. 307 of 2007 which was allowed on February 13, 2007 subject to payment of costs. (8) IT is irrelevant as to why the plaintiff chose to withdraw its earlier application under Chapter XIIIA once it is seen that the plaintiff obtained leave to file afresh. Such leave as sought by the plaintiff could have been resisted by the defendants and no grievance has been made that such leave was accorded to the plaintiff without the defendants being aware of it. The objection that the first defendant raises, if accepted, would undo the order of may 16, 2006 and have the effect of setting it to naught. The first defendant implies that the leave granted by the order of May 16, 2006 has to be seen in the context of what is permissible under Chapter XIII-A. The submission is that if Rule 3 did not permit the plaintiff to apply under such Chapter, no leave granted by Court could have conferred any right contrary to law on the plaintiff. (9) IT is not permissible for the first defendant to urge such ground as it was available to the first defendant to take it at the time that the order of may16, 2006 was made. Since it is not the case of the first defendant that the plaintiffs original application under Chapter XIIIA was not maintainable, the leave has to be construed as, in effect, permitting the plaintiff to continue the prayer originally made in its first Chapter XIIIA application, by taking out a second application for similar purpose. (10) THE second preliminary point, the one urged by the second defendant, is without any merit. (10) THE second preliminary point, the one urged by the second defendant, is without any merit. The word "tenant" appearing in Rule 1 (B) under Chapter xiiia is not to be read as a tenant within the definition of either the West bengal Premises Tenancy Act, 1956 (the 1956 Act) or West Bengal Premises tenancy Act, 1997 (the 1997 Act). The word "tenant" in the sub-rule would cover a lessee under the Transfer of Property Act just as the word landlord therein would cover a lessor under the Transfer of Property Act. (11) WITH the threshold challenges out of the way, the merits of the matter need to be seen. By a registered document the plaintiff granted a lease in respect of the suit premises in favour of the original third defendant sometime in the year 1972 for a period of 16 years. The deed contains the following clause, which is the bone of contention in the present proceedings: " (ii) That the lessee of her successors shall have the right to the renewal of this lease for a further period of sixteen years on the same terms and conditions subject to a reasonable increase in rent as might then be mutually agreed upon provided notice initiating the lessees desire to exercise such option is given three months prior to the expiry or determination of the terms of this lease. " (12) THE plaintiff insists that notwithstanding the use of the word "renewal" in the relevant clause and the original defendant having sought renewal by a writing issued at or about the time that the original period of 16 years ran out, the clause permitted an extension of the tenure covered thereby in the sense that it was a prolongation of the period by a further period of 16 years. Upon the subsequent period of 16 years being over, the original third defendant issued a writing in 1988 expressing her desire to make over possession of such part of the leased premises that was under her direct occupation and accepting that the lease was to expire by efflux of time. Upon the subsequent period of 16 years being over, the original third defendant issued a writing in 1988 expressing her desire to make over possession of such part of the leased premises that was under her direct occupation and accepting that the lease was to expire by efflux of time. (13) THE letter of January 28, 1988, in its material paragraph, provides as follows: "without prejudice to our clients rights under the existing laws and otherwise to continue as a monthly tenant and in exercise of right contained in proviso (ii) of the said Deed of Lease our, client hereby exercises her option for renewal of the lease for a further period of 16 years from 19th December, 1988. " (14) THE letter of February 9, 2004, issued several months before the expiry of the period of 32 years from the commencement of the lease, recorded as follows: "we are in receipt of your letter dated January 22, 2004 and have noted the contents therein. "mrs. Hilla B. Framjee has instructed us to inform you that the aforesaid premises will be handed back to your client on expiry of the lease on 18th December, 2004. This has also been informed to all the concerned Tenants. "mrs. Tehmina Sinha, daughter of Mrs. Hilla B. Framjee will call upon you when she visits Kolkata later this year. " (15) THE plaintiff has not indicated the quantum of rent that was being paid under the lease by the third defendant but submits that such-amount is nominal. The plaintiffs submission on such count would imply that the quantum of monthly rent last tendered by the third defendant and accepted by the plaintiff would not carry it beyond the purview of the 1997 Act if such act were to otherwise apply. The said Act fixes an outer limit of Rs. 10. 000/-per month for a tenant at any premises let out for non-residential purpose to be afforded protection under such Act if the provisions thereof are otherwise attracted. (16) THE sheet-anchor of the first and second defendants argument is that the relationship between the plaintiff and the third defendant was governed by the 1956 Act at the time that the third defendant went into possession of the demised premises. The first and second defendants cite section 3 of the 1956 Act for such purpose: "3. (16) THE sheet-anchor of the first and second defendants argument is that the relationship between the plaintiff and the third defendant was governed by the 1956 Act at the time that the third defendant went into possession of the demised premises. The first and second defendants cite section 3 of the 1956 Act for such purpose: "3. Certain provisions of the Act not to apply to certain leases.- (1) The provisions relating to rent and the provisions of section 31 and 36 shall apply to any premises held under a lease for residential purpose of the lessee himself and registered under the Indian Registration Act, 1908 (XVI of 1908), where - (a) such lease has been entered into on or after the 1st December, 1948 and (b) such lease is for a period of not more than 20 years, and save as aforesaid nothing in this Act shall apply to any premises held under a lease for a period of not less than 15 years. (2) Notwithstanding anything to the contrary contained in sub-section (1) but subject to sub-section (3) of section 1 this Act shall apply to the premises held under a lease which has been entered into after the commencement of the West Bengal Premises Tenancy (Amendment) Act, 1965: provided that if any such lease is for a period of not less than 20 years and the period limited by such lease is not expressed to be terminable before its expiration at the option either of the landlord or of the tenant, nothing in this Act, other than the provisions relating to rent and the provisions of sections 31 and 36, shall apply to any premises held under such lease. " (17) THE sub-lessees contend that since the tenure of the lease was for a period less than 20 years, the relationship was governed by the 1956 Act and it was on such understanding that the sub-lessees went into possession under the lessee with the knowledge that the lessee was a monthly tenant under the plaintiff and the lessee was entitled to protection under the 1956 Act. The first and second defendants argue that since the deed of 1972 provided for a renewed lease upon the expiry of the original, the proviso to section 3 (2)of the 1956 Act would exclude any other possibility. The first and second defendants argue that since the deed of 1972 provided for a renewed lease upon the expiry of the original, the proviso to section 3 (2)of the 1956 Act would exclude any other possibility. (18) THE plaintiff insists that notwithstanding the use of the word "renewal" in the relevant clause, it merely implied extension. The submission is that nothing other than an increase in rent could have been demanded by the lessor upon the lessee seeking prolongation of the tenure and the conduct of the parties to the deed of 1972 would show that the relevant clause only implied extension. The plaintiff says that the use of the word "renewal" in the third defendants letter of January 28, 1988 also implied extension. The plaintiff contends that the relevant clause conferred a unilateral right unto the lessee to seek enlargement of the tenure by exercising her option three months prior to the expiry of the original tenure. The plaintiff says that the clause did not afford the lessor a chance to refuse the enlargement of the tenure upon the lessee demanding it. (19) THE plaintiff also relies on the letter of February 9, 2004. issued on behalf of the third defendant to show that the parties to the deed of 1972 understood it to be for a period of 32 years. The plaintiff says that if the first and second defendants claim a derivative right from the third defendant, they are bound by the conduct of the third defendant and the contemporaneous understanding of the tenor of the covenants by the third defendant. (20) THE first defendant does not appear to have run a case of collusion between the plaintiff and the third defendant in its affidavit. The second defendant has made a passing reference to a possible collusion between the parties to the deed of 1972 but has not elaborated on it nor furnished any particulars that are asked of a party bringing a charge of collusion. In course of submission, however, the second defendant has put forth its case with an underlying suggestion of collusion between the plaintiff and the third defendant. The second defendant says that the third defendant sold herself short and surrendered a right that she had. In course of submission, however, the second defendant has put forth its case with an underlying suggestion of collusion between the plaintiff and the third defendant. The second defendant says that the third defendant sold herself short and surrendered a right that she had. The insinuation is that the letter of February 9, 2004 was procured from the third defendant by the plaintiff to prejudice the sub-tenants under the third defendant. The second defendant relies on the principle recognised in section 115 of the Transfer of Property act that upon a right being surrendered by a lessee, the under-lessees come to be directly under the lessor. (21) THE parties cite from the bank of authorities on the subject, in several cases citing the same reports for contrary purposes. Of the several cases that have been relied upon, some for propositions not central to the principal matter in issue, four judgments may have a telling bearing on the matter: those reported at (2006) 8 SCC 344 (Pabitra Kumar Roy v. Alita Dsouza); 2007 (1) Cal LJ47 (Prakashwati Chopra v. Sibqji Mitra); 1999 (1) CWN 173 (J. Thomas and Co. Put Ltd, andanr. v. Pawankumar Tibriwalla); and AIR 1997 Cal 278 (Ranjit kumar Dutta v. Tapan Kumar Shaw and Anr.). (22) IT is best that the principles of law enunciated in these judgments be recognised as a guide for the tests to be applied in the present case. (23) IN the case of Pabitra Kumar Roy there was a lease executed for a period of 21 years in 1969 with a right for earlier determination of the period reserved unto the parties thereto. During the currency of the tenure, a notice was issued under section 111 (g) of the Transfer of Property Act, a suit was founded by the lessor on the basis of such notice and a decree obtained from the trial court. The default was made good by the lessee following which the suit stood dismissed and the lessee continued in possession for the duration envisaged by the deed of lease. Upon expiry of the period of 21 years, the lessor sued for eviction on the ground of the lease having expired by efflux of time. The lessee urged in defence that the lessee was entitled to the protection accorded to a tenant under the 1956 Act. Upon expiry of the period of 21 years, the lessor sued for eviction on the ground of the lease having expired by efflux of time. The lessee urged in defence that the lessee was entitled to the protection accorded to a tenant under the 1956 Act. The trial Court decreed the suit, rejecting the case of monthly tenancy noticing that in the earlier suit filed following a notice under section 11 l (g) of the Transfer of Property Act no such plea had been taken by the lessee. The first appellate Court affirmed the decree. The high Court found in favour of the lessee in the second appeal. The Supreme court restored the decree and stated the law in the following passage: "22. The law is clear that lease deeds for periods of twenty years or more would stand excluded from the operation of the 1956 Act except in matters relating to sections 31 and 36 thereof, unless the same were terminable before their expiration at the option either of the landlord or of the tenant. In other words, if such a lease is terminated before its fixed period expired, the proviso to section 3 (2) would be attracted, as a defence against eviction. If, however, the lease was allowed to run its full course, both the lease and the conditions contained therein would come to an end and would cease to be operative and the clause for prior determination would no longer be available as a defence against eviction. " (24) IT is the second sentence of paragraph 22 of the report that the plaintiff stresses on to say that the lease in this case should be read to be one for 32 years which has been allowed to run its full course and the clause providing for renewal is a less damning clause for a lessor in the context of the 1956 act than one giving the parties an option to terminate the lease during the currency thereof. It may be a matter of some interest that in the following paragraph of the report the Supreme Court held that the lessee was estopped from contending that the relationship was governed by the 1956 Act as the lessee obtained a benefit under the Transfer of Property Act in the previous suit. It may be a matter of some interest that in the following paragraph of the report the Supreme Court held that the lessee was estopped from contending that the relationship was governed by the 1956 Act as the lessee obtained a benefit under the Transfer of Property Act in the previous suit. (25) IN the Prakashwati Chopra matter a property was demised for a term of 21 years commencing January 1, 1973 at a monthly rental of Rs. 850/ -. The lease expired on December 31, 1994 and the lessor sued for possession on the ground of the lease having expired by efflux of time. On an application under Chapter XIIIA for a summary judgment of eviction, a decree was made in the lessors favour which was carried in appeal. The law under section 3 of the 1956 Act in the matter of the applicability of such Act to certain leases was summarised at paragraph 24 of the report: "24. The 1956 Act thus applied: - (a) to all leases for less than 15 years; (b) to leases for 15 years or more, iffor residential purpose and entered into after 1st December, 1948 but before 24th August, 1965 in so far as the provisions regarding rent and the sections 31 and 36 were concerned; (c) to all leases executed after 24th August. 1965 terminable before its expiration at the behest of the lessor or lessee and (d) to all leases executed after 1965 for a period of less than 20 years whether terminable or not before the expiry of the period at the behest of the landlord or the tenant. " (26) THE relevant provisions of both the 1956 Act and the 1997 Act were noticed and it was the following opinion that was expressed by the Division bench at paragraph 29 of the report: "29. We, therefore, are of the opinion that in those cases where the lease expired by efflux of time but the lessee is continuing in possession he/ she would not come within the purview of the definition of a "tenant" under section 2 (g) of the Act of 1997. We, therefore, are of the opinion that in those cases where the lease expired by efflux of time but the lessee is continuing in possession he/ she would not come within the purview of the definition of a "tenant" under section 2 (g) of the Act of 1997. The judgment in the case of Shyam Charan (supra) does not really lend any assistance in resolving the controversy involved in the present case because the Act of 1997 has to be construed in its own background and not in a syllogistical manner as suggested by mr. Thorat. The first point is thus answered in the negative. Once the first question formulated above is answered the principal contention of Mr. Thorat is taken care of. There is thus no question of any bar being applicable to the entertainability of the present suit and this Court was naturally competent to receive, try and determine the suit. " (27) ON such ratio it can be safely said that if the lease is found to be for a period in excess of 20 years such that it did not make the lessee a monthly tenant entitled to protection under the 1956 Act, upon the 1956 Act being replaced by the 1997 Act, the lessee would not come within the purview of the definition of "tenant" under the 1997 Act. (28) IN the J. Thomas case the lessee went into possession under a registered indenture of 1965 where the term was limited for 21 years at a monthly rent of Rs. 950/- with an option to renew for a further period of five years being available to the lessee. The initial period expired on October 31, 1986 and the lessee sought no renewal but tendered rent each month for the period after 21 years had expired that was accepted by the lessor. In the application for summary judgment under Chapter XIIIA upon a suit being filed in this Court, the lessee urged that an arguable case of a monthly tenancy has arisen which would afford protection to the lessee as tenant under the rent legislation. The suit was instituted after the expiry of the period of five years following the original tenure. In the application for summary judgment under Chapter XIIIA upon a suit being filed in this Court, the lessee urged that an arguable case of a monthly tenancy has arisen which would afford protection to the lessee as tenant under the rent legislation. The suit was instituted after the expiry of the period of five years following the original tenure. The Division Bench held that it was legally unacceptable that upon the option of renewal available under a lease not being exercised on the expiry of the original tenure, the payment and acceptance of monthly rent would raise a case of holding over and the creation of a periodic tenancy. Paragraphs 24 to 26 of the report appear to be apposite in the context: "24. Whether the further period of five years could be more solidly occupied by the tenant by compelling the lessor to execute a lease for five years upon the exercise of the option to renew, is, it is important to note, a complete side issue. The tenant has occupied for five years on payment of the rent mentioned in the registered Indenture. Whether he could have got a registered lease for five years, or whether he should have got it is a matter of no importance now. "25. In the Burma Shell case, the Court opined that there being no registered written instrument in that case, a case of monthly tenancy had arisen. It is settled law that judgments, even Supreme Court judgments, are not to be read like Acts of Parliament. The ratio has to be extracted upon a whole reading of case. Reading this part of the case we have found the ratio to be this that a renewal clause, if exercised, cannot override the provisions of section 107 of the Transfer of Property Act requiring leases above one year to be registered; and further that in the facts of that case (the Supreme Court having mentioned the phrase twice, once at the end of paragraph 5 and once again in the middle of paragraph 7), a monthly tenancy had arisen between the lessor and sub-lessee. It would, in our opinion, be a serious misreading of the case to deduce from there, the thoroughly unacceptable legal proposition that in any and every case, if the period of renewal upon exercise of option by the lessee is not made the subject- matter of a written and registered lease, then and in that event, in every such case without exception, the payment and acceptance of monthly rent will raise a case of holding over and the creation of a periodic tenancy under section 116 of the Transfer of Property Act. The result of this proposition of law being right would be so absurd that the proposition itself is shown as such. It did not form the ratio of the Supreme Court case, which proceed, with respect, on all normal, accepted and well known principles of tenancy law. "26. The tenant having clearly continued possession after expiry of 31. 10. 86 on the basis of the written registered original instrument, and the case of a fresh monthly tenancy at the rate of Rs. 950/- per month freshly entered into by a meeting of minds between the landlord and the tenant at that period of time being thoroughly absurd, having regard to the location and area of the flat in question (not to mention the garage and the servants quarters) we rule out any defence to the claim for the landlords delivery of possession as being thoroughly non-existent and moonshine. " (29) THE judgment in the Ranji Kumar Dutta was rendered upon a reference to a third Judge following a difference of opinion in a Division Bench. The registered lease of October 8, 1956 in that case covered the period October 1, 1956 to September 30, 1971. The lessee continued in possession after September 30, 1971 and no renewal of the lease was effected by any registered document. The defendant-lessee urged that he should be deemed to be holding over and would be governed by the 1956 Act. The reference was answered by holding that a lessee continuing in possession in exercise of his option of renewal would be deemed to be in possession under the original deed and the further period is to be treated as part of the period covered by the original deed. Paragraph 29 of the report captures the essence of the judgment: "29. The reference was answered by holding that a lessee continuing in possession in exercise of his option of renewal would be deemed to be in possession under the original deed and the further period is to be treated as part of the period covered by the original deed. Paragraph 29 of the report captures the essence of the judgment: "29. From the discussions made above it can be safely concluded that renewal of a lease is creation of a fresh lease and a fresh lease is required to be registered according to law but where no such fresh lease is created in terms of the renewal clause of the original registered deed of lease no question of registering it arises. If in such a case the lessee continues in possession in exercise of his option as per renewal clause over the leased property after the initial period is over, his continuance in possession would be deemed to be under the original registered deed. The further period is to be treated in such a case as part of the period of the original registered deed of lease. Thus, in such a case, where a lease contains renewal or extension clause, the period does not remain limited to the initial period only but it breaks the limit to further flow for another term and the lease does not determine at the end of the initial period on exercise of unilateral option by the lessee as in such a case there does not arise any question of fresh assent by the lessor because the right to enjoy for further period gets conveyed to the lessee under the original registered lease itself. In the instant case the lessee exercised his option and continued in possession after the expiry of the initial period of 15 years as per the renewal/extension clause and as such his continuance would be deemed to be under the old registered deed of lease. His continuance in possession thereafter of the demised premises would not be holding over the same under section 116 of the T. P. Act and his tenancy would not be governed under the provisions of the West Bengal Premises Tenancy Act, 1956. " (30) THE plaintiff claims that the right of a lessee who continues in possession after the expiry of the tenure is akin to a trespasser. " (30) THE plaintiff claims that the right of a lessee who continues in possession after the expiry of the tenure is akin to a trespasser. For such principle a judgment reported at (1995) 5 SCC 698 (R. V. Bhupal Prosad v. State of Andhra Pradesh) is placed. The Supreme Court held in such case that the possession of a lessee in such circumstances was as tenant at sufferance who was liable to ejectment in due course of law; that such possession was neither legal nor lawful and akin to a trespasser, though the lessee initially had lawful entry. (31) A judgment reported at AIR 1998 SC 1754 (Silverline Forum (P) Ltd. v. Rajiv Trust) is cited by the plaintiff for the principle that a sub-tenant would be entitled to protection under the rent Act only upon the tenant and sub-tenant notifying the landlord of the creation of the sub-tenancy within a month of such creation. (32) THE first defendant has relied on the judgments reported at 1992 (2)Cal LJ 326 (Manmatha Krishna Mitra v. Dena Bank) and 2006 (3) CHN 322 (Binny Ltd. v. Alliance Properties and Industries Ltd.) to show that if the express words of the lease provided for a tenure not more than 20 years during the currency of the 1956 Act, the lessee would be entitled to protection under the said Act. The judgment reported at 2007 (3) Cal LT 322 (Renuka Seal and ors. v. Sabitri Dey and Ors.) is relied upon to show that no renewal could have taken place in the present case as renewal is a bilateral act. Judgments reported at AIR 1939 Bom 98 (Suleman Haji Ahmed Oomer v. Darabshaw pirojshaw Dubash) and AIR 1952 Cal 196 (Mohammad Ibrahim v. Banimadhab mullick and Ors.) are relied upon in support of the contention that if a head-lessee surrenders a right the underlessees would come to be lessees directly under the head-lessor. (33) THE second defendant says that a renewal would amount to a fresh lease and would mandatorily require registration since the period of renewal in this case is in excess of a year. The judgments reported at AIR 1973 SC 2609 (Delhi Development Authority v. Durga Chand Kaushish) and AIR 1992 mad 190 (Hindustan Petroleum Corporation Limited v. Vummidi Kannan) are cited in such context. The judgments reported at AIR 1973 SC 2609 (Delhi Development Authority v. Durga Chand Kaushish) and AIR 1992 mad 190 (Hindustan Petroleum Corporation Limited v. Vummidi Kannan) are cited in such context. The second defendant refers to the judgments reported at AIR 1984 SC 143 (Satish Chand Makhan and Ors. v. Gouardhan Das Byas and ors.) and (1980) 1 SCC 185 (Biswabani Put Ltd. v. Santosh Kumar Dutta and ors.) to emphasise on the status of the lessee upon no fresh lease being executed or registered upon renewal. A decision reported at 2007 (2) CHN 303 Undo Europa Trading Co. Pvt. Ltd. v. Anil Poddar and Ors.) is placed for the principle that a lessee holding over is entitled to protection under the rent Act. (34) THE second defendant seeks to demonstrate the contradiction in the plaintiffs version of things. At paragraph 4 of the plaint, it is averred that the period was extended after the original tenure ran out though the letter of january 28, 1988 issued by the lessee claimed renewal. The second defendant says that if a lease for a period of 19 years was found, as in the case reported at 1992 (2) Cal LJ 326 (Manmatha Krishna Mitra v. Dena Bank), to be governed by the 1956 Act, the lease of 1972 in the present case for a period of 16 years should also be held to be governed by such Act. A judgment reported at AIR 1972 Cal 190 (M. S. Ram Singh v. Bijoy Singh Suranaandanr.) is next placed to suggest that the surrender by the lessee of a right cannot rob the sub-lessees of the right derived from the lessee. Ajudgment reported at AIR 1982 SC 1043 (Mahabir Prasad Vrrma v. Surinder Kaur) is relied upon to show that the knowledge of the superior landlord of a sub-tenancy might, in some cases, be enough to confer protection on the sub-tenants. (35) AS to the circumstances which would suggest that a clause implied extension or such clause entailed extension, the judgments reported at (2007)5 SCC 614 (Hardesh Ores (P) Ltd. v. Hede and Co.): 1989-Supp (1) SCC 487 (Provash Chandra Dalai and Anr. v. Biswanath Banerjee and Ann) and (2004) 1 scc 1 (State of U. P. v. Lalji Tandon) have been placed. v. Biswanath Banerjee and Ann) and (2004) 1 scc 1 (State of U. P. v. Lalji Tandon) have been placed. The second defendant asserts that the last Supreme Court judgment would show that a perpetual lease was possible under Indian law. (36) THE plaintiff seeks to demonstrate that the parties to the agreement of 1972 understood the relevant clause to be one for extension, it was only an extension that was sought albeit the use of the word "renewal" in the letter of January 28, 1988 and the letter of February 9, 2004 would evidence that the parties to the lease understood that it expired only upon the 32-year period running out. With the weight of the Pabitra Kumar Roy, Prakashwati Chopra, j. Thomas and Ranjit Kumar Dutta cases, the plaintiff asserts a lease for a period in excess of 20 years for the lessee to be taken beyond the pale of the 1956 Act and the 1997 Act and the consequence thereof for the first and second defendants. (37) THE advantage that the first and second defendants enjoy here, in addition to the possible protection under the rent Act, is that only an arguable case has to be made out for them to resist a summary decree. (38) AN option clause contained in a lease may provide for renewal and imply only extension or an option clause may provide for an extension and mean renewal. The purport of the clause is to be ascertained primarily from the clause itself or, if there is any shade of ambiguity, from the other covenants of the lease. Oral evidence led by the parties may also provide an answer. (39) THE clause in this case gave a unilateral right to the lessee to seek renewal. Upon the renewal being sought in accordance with the clause, the terms and conditions of the deed of 1972 would continue to govern the parties thereto for the further period of 16 years provided they agreed upon the increased rent. For all intents and purposes it appears to be a clause permitting extension, the only impediment in the otherwise clear case being the words "subject to a reasonable increase in rent as might then be mutually agreed upon. For all intents and purposes it appears to be a clause permitting extension, the only impediment in the otherwise clear case being the words "subject to a reasonable increase in rent as might then be mutually agreed upon. " If the clause is one for extension, then all the terms and conditions of the lease (other than the quantum of rent) would govern the parties for the extended period save the extension clause which would stand extinguished. (40) HOWEVER weighty the plaintiffs argument may be as to the import of the clause, if it needs to be assessed on the basis of the conduct of the parties and the conduct extends to the period till the completion of the 32-year tenure, there is one aspect that has to be noticed. Though the second defendant does not say it in so many words in its affidavit, it would not be safe to gauge the conduct of the third defendant and the understanding of the document that the plaintiff attributes to the third defendant on the basis of the letter of february 9, 2004. Notwithstanding the mere hint of collusion apparent from the second defendants affidavit, it cannot altogether be ruled out that with the third defendant away and having little interest in the property, the plaintiff may have won her order to obtain a letter best suited to it. It may be unwise to gauge the conduct of the parties to the deed of 1972 merely on the basis of the two letters that have surfaced at this stage. The first and second defendants must also be afforded an opportunity to express and justify what was their understanding of the document and the third defendants rights thereunder. (41) THE plaintiff has adroitly glossed over a singular feature and has distracted the first and second defendants enough for them not to notice or make the point. So forceful has the plaintiffs submission been as to the conduct of the third defendant and first and second defendants rights being merely derivative, and subservient to the third defendants, that the subj lessees have shied away from any protracted submission on the two letters and have preferred the letter of the law as laid down in the 1956 and the 1997 Acts. The major plank on which the plaintiffs argument is founded is the conduct of the parties to the indenture of lease of 1972. The major plank on which the plaintiffs argument is founded is the conduct of the parties to the indenture of lease of 1972. Yet, the first line that emanated from the third defendant after the document of 1972 rings a jarring note. The third defendant had prefaced the exercise of her right of renewal (or extension) by the following words in the only material paragraph in the letter of January 28, 1988: "without prejudice to our clients rights under the existing laws and otherwise to continue as a monthly tenant. . . " (42) IN the context of such sentence it would not be outlandish to visualise that the sub- lessees taking under the lessee could have shared the lessees contemporaneous view that rights of the parties to the lease, or those claiming under one of them, were governed by the 1956 Act. The exercise of the right of renewal (or extension) was by way of abundant caution and without prejudice to the underlying assertion that it was unnecessary to exercise such right in view of the protection that the third defendant was entitled to under the 1956 Act. The choice of the expressions "existing laws" and "monthly tenant" by the third defendants advocate leaves little room for any alternative interpretation. (43) IT is more than likely that it is what the plaintiff asserts that will hold good at the end of the trial but to find that there could be no other possibility would involve an element of guessing. On the plain terms of the clause, it speaks of a renewal and if the clause is to take colour from the conduct of the parties subsequent to the execution of the document, in however small measure, a prayer for summary judgment in the present circumstances is bound to fail. (44) THE matters urged raise involved questions though more on law than on facts. There arises a legal question as to whether the subsequent conduct of the parties thereto will have a more telling impact on the character or the import of a deed of lease than what may be perceived from the document itself. (44) THE matters urged raise involved questions though more on law than on facts. There arises a legal question as to whether the subsequent conduct of the parties thereto will have a more telling impact on the character or the import of a deed of lease than what may be perceived from the document itself. An assessment that the plaintiff is most likely than not to ultimately succeed still leaves a sliver of a possibility for the first and second defendants and such is the high test that is asked of a plaintiff seeking summary judgment, that even the slenderest doubt would raise a triable issue and push the plaintiff to the trial that the plaintiff fervently wished not to await. (45) THE authorities that the first and second defendants have brought reveal that a view on facts different from what the plaintiff asserts is possible. In each of the four principal judgments relied upon by the plaintiff, the period of lease was apparently beyond such as would have obviously accorded protection to the lessees under the 1956 Act. The lessees in each case had been allowed the full run of the original tenure and the dispute was as to the lessees subsequent status. If each of the judgments is read in the larger context of the fundamental question as to whom did the 1956 Act profess to extend protection, as the Division Bench in the J Thomas case exhorts how a precedent should be received, there is an arguable case that may be seen in favour of the first and second defendants. It is not as obvious as to whether the essential rationale in the four judgments would apply in this matter so as not to permit the defendants to slip through at this stage and await their fate at the trial. (46) THE plaintiff s assertion that the matter is covered by the dictum found in the first sentence of paragraph 29 of the Division Bench judgment in the prakashwati Chopra case still begs the question as to whether the third defendant could be reckoned as a monthly tenant under the 1956 Act by reason of the express term as to tenure m the indenture of lease. If she was, indeed, a monthly tenant protected by the 1956 Act then by reason of the nominal rent, the third defendant could also be a tenant protected under the 1997 Act. In such a situation there does not appear to be any exemption plainly visible under section 3 of the 1997 Act to take the third defendant beyond the ambit of the definition of a tenant thereunder. The application being GA No. 230 of 2007 fails. The defendants have unconditional leave to defend. The first and second defendants will be liable to costs assessed at 5000 GMs each for this application in the event the suit is decreed in favour of the plaintiff. Urgent certified photostat copies of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities. Application fails.