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IN THE HIGH COURT OF ALLAHABAD
JAYANT BANERJI, J.
Hindustan Petroleum Corporation - Appellant
Versus
Satish Chandra Jain and Others - Respondents
Second Appeal No. 881 of 2006
Decided On : 31-10-2019
U.P. Act – Section 29-A – Indian Evidence Act, 1972 – Section 17 –Civil Procedure Code – Order 15 Rule 5 – Order 12 Rule 6 – Order 6 Rule 16 – Issue on Lease, Constructions - Second appeal has been filed by the defendant-appellant against judgement and decree passed by Additional District Judge, Court No. 6 Bareilly in Civil Appeal arising out of O.S. from Court of Additional Civil Judge (Senior Division), Bareilly.
Facts of the Case: Contended by learned counsel for the defendant-appellant, that though the trial court had decreed the suit only on the alleged admission made by the defendant in its written statement, the lower appellate court went a step further and entered into the merits of the case –He referred to paragraph number 7 of the plaint that the lease was granted to the predecessor-in-interest of the defendant-appellant in respect of a piece of land for purpose of running a petrol pump and that all construction, fittings and fixtures which were made by the defendant-appellant, which were of the time of its predecessor-in-interest, Caltex India Limited, were to be removed and the allegation was that the defendant cannot claim any benefit from the construction whether permanent or temporary.
Finding of the court: Lower appellate court has observed that since there exists a clause in the lease deed which requires removal of construction after determination of the tenancy, the construction would come under the meaning of temporary construction and by making such construction, the premises would not come within the definition of word 'building' – The construction/erection made by the defendant-appellant on the demised land and existing on the property in dispute having been held by this court as permanent in nature and the aforesaid lease deed permitting raising of such structure, on coming into force of the U.P. Act No. whereby Section 29A was inserted in U.P. Act the defendant-appellant became a statutory tenant and the benefit of Section 29A would be available to the defendant-appellant, thereby barring the suit for eviction of the defendant-appellant except on the ground –The tenancy of the defendant-appellant is protected from termination by efflux of time –\
Result: Appeal allowed
JUDGMENT :
1. This second appeal has been filed by the defendant-appellant against the judgement and decree dated 1.8.2006, passed by the Additional District Judge, Court No. 6, Bareilly in Civil Appeal No. 222 of 1998 arising out of O.S. No. 203 of 1988 from the Court of Additional Civil Judge (Senior Division), Bareilly.
2. In this appeal the following substantial questions of law were framed:
“A. Whether in the facts and circumstances of the case the trial court was justified in striking off the defence of the defendant under Order 15 Rule 5 CPC?
B. Whether by a composite order the court could have struck off the defence under Order 15 Rule 5 CPC and simultaneously decree the suit either under Order 15 Rule 1 or Order 12 Rule 6 CPC?
C. Whether after framing as many as 13 contentious issues including the availability of the protection of U.P. Act No. 13 of 1972 to the defendant, as well as the jurisdiction of the court, the courts were justified in law by taking recourse to the provisions of Order 15 Rule 1 and Order 12 Rule 6 CPC for decreeing the suit without recording of evidence?
D. Whether it is permissible for the court to rely on an alleged admission made in the written statement for the purpose of decreeing the suit under Order 12 Rule 6 CPC particularly when the defence has already been struck off under Order 15 Rule 5 CPC?
E. Whether from the own case of the plaintiff coupled with the registered lease deed, the provisions of Section 29-A of the U.P. Act No. 13 of 1972 were attracted thereby protecting the tenancy from termination of efflux of time?
F. Whether for purpose of determining the applicability of U.P. Act No. 13 of 1972 in view of Section 29-A, the lower appellate court was justified in holding that the constructions on the suit property were temporary, only on the basis of the clause in the lease deed that provides that the lessee shall remove the constructions made by him on determination of the lease, without recording a categorical finding that the constructions actually existing on the suit property were temporary or permanent in nature?”
BACKGROUND OF THE CASE.
3. The plaint case is that by means of a lease deed dated 20.8.1969 between the plaintiffs and Smt. Darshan Devi Jain (the lessors of the one part) and Caltex India Limited,(the lessee of the other part), lease was granted in respect of suit property to Caltex India Limited on the terms and conditions mentioned in the lease deed. A few years after execution of the lease deed, the Caltex India Limited was merged and vested in the defendant, Hindustan Petroleum Corporation Limited, [defendant-appellant] and the identity of the Caltex India Limited got extinct. It is alleged that after the aforesaid merger, the tenancy came to an end but to avoid any conflict the plaintiffs accepted the defendant-appellant as month to month tenant and the tenancy period of ten years granted to M/s Caltex India Limited expired at the end of February, 1978 and the defendant-appellant continued to be a month to month tenant.
4. It is stated that one option regarding renewal of lease was granted in the year 1978 and the defendant-appellant was not entitled to any further option of renewal and thus the defendant-appellant remained a month to month tenant only. After defendant-appellant's tenancy expired at the end of February, 1988, it was liable to be evicted but to avoid any dispute, a notice for termination of tenancy was given by the plaintiff-respondent to the defendant-appellant treating it to be a month to month tenant and was informed that its tenancy would stand terminated on the expiry of 30 days from the date of receipt of the notice. Though the defendant-appellant's tenancy was terminated through registered notice dated 10.2.1988, the defendant-appellant did not vacate the land. To this notice, the defendant-appellant gave a reply to the notice that the defendant-appellant's tenancy is protected by U.P. Act No. 13 of 1972 and it is entitled to renewal of lease for a
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