IMPORTANT POINT
It is for the lessee to exercise the option of renewal where indenture of lease has cast burden either on him or is silent as to who should exercise the option.

Ranjit More, J.—By consent of learned counsel appearing for the respective parties, the revision is taken up for final hearing. Heard Mr. Bharucha and Mr. Dhakephalkar, learned Senior Counsel for the respective parties>

2. By the present revision filed under Section 115 of the Code of Civil Procedure, 1908, the petitioner challenges the legality, validity and propriety of the judgment and decree dated 15th September, 2008, passed by the Appellate Bench of the Small Causes Court at Bombay in Appeal No.88 of 2007 in T.E.R. Suit No.428/451/2001. By the said judgment and decree, the petitioner’s appeal was dismissed and the order passed by the learned Trial Judge in T.E. & R. Suit No.428/451/2001 dated 22nd November, 2006, is confirmed and the petitioner was directed to handover the vacant and peaceful possession of the suit premises to the respondent.

3. The brief facts giving rise to the present revision are as follows:

The respondent is a company and is the owner of the suit plot of land admeasuring 45,022 square yards and another portion admeasuring 153 square yards bearing Survey No.17 of Parel Sewri Division at Parel, Lalbaug, Mumbai – 400 012 together with spinning and weaving mill and other buildings standing thereon (hereinafter referred to as “the suit plot”) as a successor in interest of one Byramjee Jeejeebhoy Trust Settlement 1872 (hereinafter called as “the said Trust”). The said Trust had executed an indenture of lease dated 1st November, 1900, in favour of the predecessor in interest of the petitioner viz. Maneckjee Petit Manufacturing Company Ltd.. The petitioner is a successor in interest of the original lessee and the respondent is a successor in interest of the original lessor. Under the lease, the suit plot was demised in favour of the lessee for a period of 99 years on the terms and conditions contained in the indenture of lease with renewal clause providing for renewal of the lease for further period of 99 years. The lease dated 1st November, 1900 expired on 31st October, 1999. Prior to the expiry of this period, the respondent had filed a suit against the petitioner being R.A.E. Suit No.758/2049/1991. The said suit was filed in the year-1991 on the ground that the petitioner had breached the terms of the indenture of lease dated 1st November, 1900. The said suit was decreed ex-parte but the decree was set-aside on an application being made by the petitioner and the suit is still pending. After the expiry of the term of lease on 31st October, 1999, by efflux of time, the respondent called upon the petitioner to handover the vacant and peaceful possession of the suit plot by issuing notice dated 6th March, 2001. The respondent, thereafter, filed the present suit for eviction on 17th July, 2001, against the petitioner. The petitioner after the receipt of writ of summons in the present suit, issued a notice to the respondent on 1st January, 2002, demanding renewal of the lease and filed a civil suit in the City Civil Court, Bombay being Short Cause Suit No.6244 of 2002 for specific performance of the terms and conditions of the indenture of lease dated 1st November, 1900 for renewal of the lease for a further term of 99 years. The respondent’s T.E. & R. Suit No.428/451/2001 was decreed by the learned Single Judge of the Small Causes Court by judgment and decree dated 22nd November, 2006. The petitioner challenged this decree by filing Appeal No. 88 of 2007 before the Appellate Bench of the Small Causes Court. As stated above, this appeal was also dismissed by the judgment and decree impugned in the present revision.

4. Mr. Bharucha, learned Senior Counsel, took me through the relevant clauses of the indenture of lease dated 1st November, 1900, prescribing procedure for renewal of the lease and submitted that the lessee is not required to make a written request for renewal of the lease. It was also submitted that the lease deed did not require the petitioner to seek formal renewal of the lease, but if the