2014 Supreme(All) 3109

ALLAHABAD HIGH COURT
Anil Kumar, J.
Hindustan Petroleum Corporation Limited And Another - Appellant
Versus
Badri Nath Khanna - Respondent
Second Appeal No. - 540 of 2012
Decided On : 22-09-2014

Headnote:

LEASE - RENEWAL - OPTION - EXERCISE - EVIDENCE - SECONDARY EVIDENCE - ADMISSIBILITY - SECTION 65 OF THE EVIDENCE ACT - TRANSFER OF PROPERTY ACT, 1882 - SECTION 114 - APPLICABILITY - U.P. URBAN BUILDINGS (REGULATION OF LETTING, RENT AND EVICTION) ACT, 1972 - SECTION 29-A - APPLICABILITY - PROVINCIAL SMALL CAUSES COURTS ACT, 1887 - SECTION 16 - APPLICABILITY.

Fact of the Case:

Plaintiff/respondent let out land to defendant/appellant for setting up a retail outlet by way of lease deed. The last lease deed was executed on 2.12.1999 w.e.f. 1.11.1997 for a period of 10 years on the lease rent of Rs.5500/- per month. Clause 3 (g) of the deed provided that the lessor shall on the written request of the lessee made before the expiry of the term thereby created grant to it a lease of the demised premises for a further term of ten years from the expiration of the said term i.e. from 1.11.2007 to 31.10.2017 at Rs.6050/- per month. After expiry of the period of lease deed, the appellants/defendants have not exercised their option for renewal of the lease deed as per Clause 3(g). So by notice dated 17.11.2007 under Section 106 of the Transfer of Property Act, the same has been terminated, thereafter, filed a suit for eviction from the land in question and recovery of the rent to the tune of Rs.48,125/- along with the cost of the suit being Rs.2500/- be paid to the plaintiff/respondent registered as Original Suit No.5 of 2008 in the Court of Civil Judge, Senior Division, Moradabad.

Finding of the Court:

The trial court held that the plaintiff/respondent has not able to establish his case. On the other hand, the defendants-appellants after expiry of the lease deed has exercised their option for renewal by sending a letter dated 18.10.2007. The appellate court reversed the finding given by the trial court in respect of the issue nos.1 and 2, and held that no option has been exercised by the defendants-appellants for renewal of the lease deed and the finding given by the trial court is contrary to the facts on record, liable to be set aside.

Issues: 1. Whether in view of the express provisions contained under Section 27 of the General Clauses Act, any adverse inference can be drawn that the defendants-appellants did not opt for renewal for a period of 10 years on 18.10.2007 particularly when the description of the addressee address were correct and appropriate charges had been paid for registry to the plaintiff/respondent ? 2. Whether the Lower Appellate Court erred in law in holding that the defendants-appellants did not seek renewal of the lease particularly in view of the fact that there has been no serious rebuttal of the same as no documentary evidence had been produced before the court below ? 3. Whether the defendants-appellants were entitled to the relief against forfeiture for not payment of rent under Section 114 of the Transfer of Property Act, 1882 as admittedly the defendants-appellants had paid the entire arrears as well as current rent ? 4. Whether the Section 114 of the Transfer of Property Act, 1882 stood attracted in the present case particularly when the entire arrears of rent was paid in the Trial Court in compliance of the order passed in Writ Petition No.64543 of 2010 in which initially interim order was passed in favour of the defendants-appellants and subsequently the writ petition was disposed of on 7.1.2011 ? 5. Whether the suit was not maintainable in regular civil court by virtue of Section 16 of the Provincial Small Causes Courts Act, 1887 as admittedly on the date of issue there was a building in existence constructed by the tenant under the written consent of the land-lord ? 6. Whether, the court below possessed the jurisdiction to alter the covenants in the lease deed in question wherein after exercise the option for renewal of the lease, the lease stood automatically renewed on the discretion of the lessee, defendants-appellants ?

Ratio Decidendi: 1. The photocopy of the letter dated 18.10.2007 cannot be relied upon even as a secondary evidence. 2. The postal receipt is on record, however, no date has been mentioned on the said receipt. Hence, on the basis of which, argument advanced on behalf of the defendants-appellants that the same is receipt in regard to sending a letter dated 18.10.2007 for exercising the option for renewal of the lease cannot be held due to lack of cogent evidence. 3. The appellants/defendants had failed to prove and establish that the letter dated 18.10.2007 has been sent as per terms of the lease deed for renewal of the lease by way of any cogent evidence. 4. The argument raised by learned counsel for the appellants taking into consideration the shelter of Section 114 of the Transfer of Property Act has got no force because in the present case, lease deed has been terminated by the plaintiff/respondent as per terms of lease deed by sending a notice under Section 106 of the Transfer of Property Act, as such, argument advanced by learned counsel for the appellants/defendants in the aid of Section 114 of Transfer of Property Act are not applicable in the present case, on the basis of the same the appellants cannot derive any benefit and the same cannot be a substantial questions of law for consideration by this Court under Section 100 CPC. 5. The provisions of Section 29-A of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, are not applicable in the present case as the defendant-appellant failed to establish that the landlord has given any consent to raise any permanent structure. 6. The suit filed by the plaintiff/respondent in the original side after terminating the lease by sending a notice under Section 106 of the Transfer of Property Act, is maintainable.

Final Decision: The second appeal lacks merit and is dismissed.